Opinion
No. FA 00-0082428 S
April 6, 2004
MEMORANDUM OF DECISION
This matter came before the court on Plaintiff's Motion for Contempt dated December 29, 2003. On May 25, 2001, a judgment of dissolution was entered in this matter. In the separation agreement dated May 25, 2001 which was incorporated in the judgment the parties agreed in Paragraph 2.5 as follows: "the husband shall also pay to the wife as alimony, fifteen per cent (15%) of any sum earned by the Husband over and above his gross annual income of $93,000.00 per year." In her motion for contempt the plaintiff alleges the defendant has not paid her all the sums due her under this provision. The issue turns on the definition of "gross income." The plaintiff presented as evidence copies of the defendant's W-2 forms for the years 2002 and 2003. (Plaintiff's Exh. #2). In the year 2002, Line 1, of the W-2, shows wages, and other compensation as $135,792.37, Line number 5, of the W-2 entitled Medicare, wages and tips shows $143,000.00 as his income. The difference being monies paid into a 401K retirement plan. For the year 2003, the numbers are for Line 1, $99,760 and line 5, $107,760.00.
The defendant claims line 1 is his gross wages, the plaintiff claims Line 5, is the controlling figure. The court finds that line 5 of the W-2 form is the defendant's gross income. In Marcus v. Marcus, 175 Conn. 138, 143 (1978), our Supreme Court held, contributions to a retirement plan are in the nature of compensation for services rendered. In that case a dentist formed a professional corporation and contributed to a pension plan setup by the corporation. The agreement in Marcus contained an escalator clause similar to the one in this case. The plaintiff in Marcus claimed that any funds paid to the pension fund was earned income and subject to the escalator clause. The court in Marcus, page 143, found that since the amount contributed was voluntary and under the control of the defendant it was income. In this case Mr. Erling testified the contributions he made to the 401K plan was the amount allowed by law. The court finds the contributions made by Mr. Erling to his 401K retirement plan is earned income, and since the contribution is voluntary the monies are to be included in his gross income. In addition, in the definition of gross income found in the Connecticut Child Support Guidelines, General Statutes 46b-215a-1(11) (iv), profit sharing, deferred compensation and severance pay fall under the definition of Gross Income. Since this income would be included to determine child support it is only logical that it should be used for computation of alimony payments.
The next part of the plaintiff's motion alleges the defendant is one week behind on his weekly alimony obligation. The defendant is obligated to pay $600.00 per week as alimony. For the year 2004 the plaintiff alleges the defendant has made on 12 Payments as of March 29, 2003 and that 13 Payments are due. The plaintiff testified she last received a payment on March 27, 2004 and this was for the week ending March 19, 2004. The court upon review of the documentation presented finds the defendant is one week in arrears.
In summation the court finds the gross income of the defendant for the year 2002 to be $143,000.00 and for the year 2003 to be $107,760.00 and the fifteen percent (15%) should be computed on those amounts. The court also finds the defendant is one week in arrears and is ordered to pay back alimony of $600.00 The defendant is ordered to pay the amounts due less any credits, by April 23, 2004. The court finds however, the defendant did not wilfully withhold the payments, but they arose out of an honest dispute as to the definition of gross income, and does not find the defendant in contempt. The court also declines to award any attorney fees.
Brunetti, J.