Divorce; Spousal support; Ackerman v. Ackerman; Whether the consent judgment was ambiguous; Coates v. Bastian Bros., Inc.; Reliance on extrinsic evidence to resolve an ambiguity; Shay v. Aldrich; Consideration of the parties’ conduct; Course of performance; Schroeder v. Terra Energy, Ltd.; Whether the plaintiff-ex-husband’s obligation to pay was out of his earned income or his taxable income; Plaintiff’s support of the parties’ adult children (attending college) as a fact for the trial court to consider; Elahham v. Al-Jabban; Lesko v. Lesko; Reduction in income; Pohl v. Pohl

The court held that while the trial court properly determined that the parties’ consent divorce judgment obligated the plaintiff-ex-husband to pay 25% of his income over $204,000 to the defendant-ex-wife as spousal support, it clearly erred in finding that he was obligated to pay out of his earned income, as opposed to only his taxable income. The trial court also erred by failing to recognize that it could consider his support for the parties’ college student children in determining whether his spousal support obligation should be reduced. Thus, the court reversed the order clarifying the terms of the judgment to the extent it included all of his earned income beyond his taxable income in calculating his support obligations, and vacated it to the extent it denied his request to reduce his support obligations, but affirmed in all other respects. The court found that the judgment was ambiguous and thus, the trial court properly relied on extrinsic evidence. Consideration “of the parties’ conduct was a proper way of determining” their intent. Further, the trial court was correct that, “in practice, plaintiff had been consistently paying defendant 25% of everything he brought home over $204,000, strongly suggesting that the parties always intended ‘salary from employment’ to refer to ‘income.’” However, the finding that he was obligated to pay out of his earned income rather than his taxable income conflicted with the trial court’s “reliance on course of performance, creates a potential double-dipping problem with computing spousal support upon plaintiff’s presumed eventual retirement, would seem to discourage financial responsibility, and is inconsistent with balancing monies actually available to the parties.” As to consideration of his support of the children’s college expenses, “the trial court erroneously regarded that support as something it could not consider as an equitable concern.” While defendant relied on Lesko, the court noted the case was not binding and concluded that it was wrongly decided. “Whether a party—either party, in an appropriate case—has ‘responsibility for the support of others,’ irrespective of why, is a proper equitable consideration.” Remanded.