DiGiuseppe v. DiGiuseppe ( 2017 )

 ELIZABETH G. DIGIUSEPPE v. VINCENT
J. DIGIUSEPPE
(AC 38679)
Lavine, Sheldon and Keller, Js.
Syllabus
The defendant, whose marriage to the plaintiff previously had been dis-
solved, appealed to this court from the judgment of the trial court
denying the plaintiff’s motion for contempt and ordering the defendant
to pay what he owed for the college expenses of his two minor children.
As part of their separation agreement, the parties had agreed that should
certain education accounts for each child become insufficient, the defen-
dant would be solely responsible for the additional college education
expenses. When the defendant failed to pay for the children’s college
expenses, the plaintiff filed the motion for contempt. Held:
1. This court declined to review the defendant’s claim that the trial court
erred in not finding a latent ambiguity in the college expenses provision
of the parties’ agreement when examining it in conjunction with another
document that was signed by the parties regarding education support
orders under statute (§ 46b-56c), the defendant having failed to distinctly
raise the claim at trial; a careful review of the record demonstrated that
the defendant did not assert before the trial court any claim concerning
a latent ambiguity in the agreement created by the other document that
was executed by the parties, but rather that he based his objection to
the plaintiff’s motion for contempt on two entirely different arguments,
and this court was under no obligation to consider a claim that was not
distinctly raised at the trial level.
2. The defendant’s claim that the trial court erred in finding that he was
responsible for all of his children’s college expenses was not reviewable;
although the defendant claimed on appeal that the parties’ agreement
was unenforceable because it contained no reasonable limitations on
his liability for the college expenses, he did not inquire of the trial court
as to the exact limits of the college expenses for which he was liable,
nor did he argue that the provision in the agreement for the payment
of college expenses was so uncertain and indefinite as to be unenforce-
able, and, therefore, he failed to preserve the claim by distinctly raising
it before the trial court.
Argued March 22—officially released July 25, 2017
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Litchfield, where the court, Ginocchio, J., ren-
dered judgment dissolving the marriage and granting
certain relief in accordance with the parties’ separation
agreement; thereafter, the court, Hon. Elizabeth A. Gal-
lagher, judge trial referee, denied the plaintiff’s motion
for contempt and issued certain orders, and the defen-
dant appealed to this court. Affirmed.
Steven H. Levy, for the appellant (defendant).
Campbell D. Barrett, with whom were Johanna S.
Katz and, on the brief, Jon T. Kukucka, for the appel-
lee (plaintiff).
Opinion
KELLER, J. The defendant, Vincent J. DiGiuseppe,
appeals from the judgment of the trial court rendered
when it denied a postdissolution motion for contempt
filed by the plaintiff, Elizabeth G. DiGiuseppe, and
ordered him to pay what he owed for his children’s
college expenses. The issue on appeal concerns the
extent of the defendant’s obligation to pay for the col-
lege expenses of the parties’ two children beyond what
is covered by Connecticut Higher Education Trust
(CHET) accounts that the parties had established for
each of them. The defendant claims that the court erred
in (1) not finding a latent ambiguity in the provision of
the parties’ separation agreement (agreement) regard-
ing college expenses when examining it in conjunction
with another document signed by the parties entitled
‘‘Education Support Orders [General Statutes § 46b-
56c]’’ (form), which would render the agreement unen-
forceable, and (2) its determination that the defendant
is responsible for 100 percent of college expenses of
the two children without limitation. We conclude that
the defendant failed to preserve either of his claims
before the trial court, and, therefore, we decline to
review them.
The following facts, as found by the court in its writ-
ten memorandum of decision, and procedural history
are relevant to this appeal: ‘‘The parties were divorced
on June 25, 2013. Their [agreement] contained a provi-
sion for the payment of the educational expenses of
their two children, who are currently [nineteen] and
[eighteen] years old. [The plaintiff] has moved for con-
tempt based on [the defendant’s] failure to pay the
children’s college expenses. . . .
‘‘The parties do not communicate. When [the plain-
tiff] learned that [the defendant] was refusing to pay the
children’s college expenses, [the plaintiff] attempted to
contact [the defendant], but he refused to communicate
with her.
‘‘At the time of the hearing on the motion for con-
tempt, the parties’ son was entering his second year at
Bentley College, and their daughter was hoping to begin
her freshman year at Syracuse University. The provi-
sions for the postmajority educational expenses are set
forth in paragraph 8 of the parties’ [separation]
agreement.
‘‘Paragraph 8.1 of the parties’ separation agreement
provides: ‘The parties established CHET accounts for
the benefit of each of their children. These CHET
accounts shall be used for the college education of both
children. Should the CHET accounts be insufficient to
educate both of the parties’ children, the [defendant]
shall be solely responsible for the additional college
education expenses for the benefit of the parties’
children.’
‘‘Paragraph 8.2 provides: ‘In the event there is a bal-
ance in the CHET accounts after the children have
completed their college educations, the parties may
divide any remaining balance equally. However, in the
event the [defendant] contributes any additional funds
to these accounts after the date of dissolution, the
[defendant] shall be entitled to a refund of these contri-
butions if all of the CHET account funds are not used
for the college education of the parties’ children.’
‘‘The parties had engaged a mediator, Attorney Jean-
nine Talbot, to assist them in settling the issues arising
from the impending dissolution of their marriage. . . .
As she does in every mediation where the parties have
a child under the age of [twenty-three], Attorney Talbot
advised the parties concerning the provisions of . . .
General Statutes [§] 46b-56c.1 The language that the
parties chose to put in their agreement did not reference
the statute.
‘‘Since Attorney Talbot did not, as mediator, repre-
sent either party, she advised them that they had an
opportunity to take their proposed agreement to their
own attorney in order to have it reviewed. There is no
evidence that [the defendant] engaged an attorney for
that purpose. [The plaintiff] did take the proposed
agreement to her own attorney to review. The proposed
agreement reviewed by [the plaintiff’s] attorney did not
include any reference to . . . [§] 46b-56c; nor did it
include any document other than the proposed
agreement.
‘‘A document which was produced and distributed by
the Litchfield Superior Court clerk’s office concerning
educational support orders pursuant to . . . [§] 46b-
56c was given to the parties for their signature by Attor-
ney Talbot on June 4, 2013. The box requesting the court
to enter an educational support order was checked.
Attorney Talbot told the parties that, by signing the
form, they were asking the court to enter an educational
support order.
‘‘[The plaintiff] did not remember being told anything
about the statute in connection with the agreement
about educational expenses. She does not recall [the]
University of Connecticut being mentioned at all. She
did not recall any discussion about the terms of the
statute. . . .
‘‘In entering judgment after the dissolution hearing,
the court, Ginocchio, J., did not enter an educational
support order pursuant to . . . [§] 46b-56c. Rather,
finding the agreement to be fair and equitable to both
sides, the court incorporated the entire agreement of
the parties into its judgment dissolving the parties’ mar-
riage.’’ (Footnote added.)
The court continued: ‘‘It is further clear that neither
party requested such an order, nor did the court at the
time of dissolution make the predicate findings neces-
sary to issue such an order. . . .2 Although the mediator
had the parties sign the form provided by the Litchfield
Superior Court clerk’s office, the credible evidence
demonstrates that the parties did not request it; nor did
the court enter an order in accordance with or sign the
form.’’ (Footnote added.)
The court found that the language of paragraph 8 of
the parties’ agreement is clear and unambiguous, as it
contains no limiting language and no language referenc-
ing § 46b-56c. To the contrary, the court found that the
language of paragraph 8.2 clearly states that the CHET
accounts will be used for the children’s educational
expenses and further anticipates that more funds might
be required of the defendant. The court concluded that
paragraph 8 clearly and unequivocally imposes on the
defendant the sole obligation to pay for the educational
expenses of the parties’ children and did not grant him
sole decision-making authority with respect to college
selection or allow him to stop paying tuition based on
lack of communication between him and his son.
In ruling on the plaintiff’s motion for contempt, the
court, ‘‘[b]ased on the somewhat adequate evidence
[that the defendant] offered to explain his failure to
honor the order of the court,’’ declined to hold the
defendant in contempt, but concluded that ‘‘there is
no reason for any refusal or delay on the part of the
defendant in honoring his contractual obligations.
Accordingly, [the defendant] is ordered to pay whatever
amounts he owes for his children’s college expenses
within ten days of notice of this decision.’’
Additional facts and procedural history will be set
forth as necessary.
I
The defendant’s first claim is that the court erred in
not finding a latent ambiguity in the provision of the
parties’ agreement regarding college expenses when
examining it in conjunction with the form signed by
the parties, which would render the agreement unen-
forceable.3 The plaintiff argues that we should decline
to review this claim because it is unpreserved. After a
thorough and independent review of the record, we
agree with the plaintiff.
In the present case, the defendant’s claim of a latent
ambiguity in the parties’ agreement was not distinctly
raised at trial. In the defendant’s principal brief and
reply brief, although he refers to the admission of extrin-
sic evidence that may have supported his newly raised
theory, notably, his and Talbot’s testimony and the
form, he fails to identify where in the transcript of the
contempt proceeding he requested that the court apply
this particular principle of contract law and, more spe-
cifically, the manner in which he asked the court to
determine that a latent ambiguity in the agreement
existed.
Instead, the defendant based his objection to the
plaintiff’s motion for contempt arguments on two
entirely different arguments. First, he argued that, at
the time he entered into the parties’ agreement, he
understood that § 46b-56c governed his college expense
obligation. He claimed that his understanding of the
agreement was due to representations made to him by
Talbot during the parties’ mediation and to the submis-
sion of the signed form at the time of the judgment
of dissolution, which Talbot indicated would limit his
college expense obligations to those that may be
imposed under § 46b-56c. He further argued that the
form was incorporated into the judgment by
agreement.4
Second, and primarily, the defendant argued that as
a matter of law, § 46b-56c governed his college expense
obligation because he did not specifically waive its pro-
visions.
That these were the defendant’s only claims raised
before the trial court is indisputable upon review of the
following excerpts from the transcript of the contempt
hearing. The court, in addressing the plaintiff’s coun-
sel, stated:
‘‘The Court: [The defendant’s] position is he’s—the
only reason he—he signed that because he thought he
was limited, the tuition was limited to whatever the
tuition at [the University of Connecticut] was.
‘‘And—and his position further is, I believe, that any
agreement made in this state about the college educa-
tion is subject to [§ 46b-56c], unless it is explicitly
waived. And therefore, since it was not explicitly
waived, then he doesn’t have to pay the entire tuition
for Syracuse. He only has to pay it up to the amount that
he would have to pay at [the University of Connecticut].
That’s his position. . . . I understand it’s not relevant
to your position, but it may be relevant to his position.
‘‘[The Defendant’s Counsel]: And you very succinctly
reiterated my position, Your Honor.’’
A careful review of the record demonstrates that the
defendant did not assert before the trial court a claim
that the form executed by the parties and submitted
to the court at the time of judgment created a latent
ambiguity between the agreement and the court form,
and, therefore, the court could not enforce section 8
of the agreement.
It is well established that an appellate court is under
no obligation to consider a claim that is not distinctly
raised at the trial level. See Practice Book § 60-5; see
also Burnham v. Karl & Gelb, P.C., 252 Conn. 153,
170–71, 745 A.2d 178 (2000). ‘‘The requirement that [a]
claim be raised distinctly means that it must be so stated
as to bring to the attention of the court the precise
matter on which its decision is being asked.’’ (Emphasis
in original; internal quotation marks omitted.) State v.
Colon, 82 Conn. App. 658, 659, 847 A.2d 315, cert. denied,
269 Conn. 915, 852 A.2d 745 (2004). ‘‘We repeatedly
have held that [a] party cannot present a case to the
trial court on one theory and then seek appellate relief
on a different one . . . .’’ (Internal quotation marks
omitted.) State v. Agron, 323 Conn. 629, 633 n.2, 148
A.3d 1052 (2016). ‘‘We will not promote a Kafkaesque
academic test by which [a trial judge] may be deter-
mined on appeal to have failed because of questions
never asked of [her] or issues never clearly presented
to [her].’’ (Internal quotation marks omitted.) Burnham
v. Karl & Gelb, P.C., supra, 171. Therefore, we decline
to review the defendant’s first claim because it was not
distinctly raised at the contempt hearing.
II
The defendant’s second claim is that the court erred
in its determination that the defendant is responsible
for 100 percent of college expenses of the two children
without limitation. The defendant notes that the court,
despite his request for an articulation pursuant to Prac-
tice Book § 66-5, failed to determine the specific college
expenses that he is responsible to pay. The court denied
the motion for articulation, stating: ‘‘The court’s memo-
randum of decision speaks for itself. The issue before
the court was whether the parties’ agreement and the
judgment of the court mandated that the financial
responsibility of the defendant for the college education
of the parties’ children was limited by . . . [§] 46b-
56c.’’5
The defendant now argues on appeal that if § 46b-
56c, with its limits on the nature of college expenditures
that can be ordered, is inapplicable because the court
correctly determined that the parties arrived at their
own educational support order, paragraph 8 of the
agreement nevertheless is unenforceable because it
contains no reasonable limitations on the defendant’s
liability and, under well established contract law, a con-
tract must be definite and certain as to its terms and
requirements. See Bender v. Bender, 292 Conn. 696,
728, 975 A.2d 636 (2009).
The plaintiff argues that, like the claim we addressed
in part I of this opinion, this claim was not raised before
the court and is accordingly not preserved for appeal.
Our review of the record reflects that the defendant
did not make any inquiry of the court as to the exact
limits of the college expenses for which he was liable,
nor did he argue that the provision in the agreement
for the payment of college expenses was so uncertain
and indefinite as to be unenforceable. The only issue
before the trial court was whether his failure to pay
tuition, room, and board for the parties’ children was
justified.6 Thus, we agree with the plaintiff and decline
to reach the merits of this claim.
As we noted previously in part I of this opinion, it is
well established that an appellate court is under no
obligation to consider a claim that is not distinctly
raised at the trial level. The court noted in its denial of
the defendant’s motion for articulation that this particu-
lar issue was not presented during the contempt hear-
ing, and a thorough and independent review of the
record reveals that the defendant never sought a precise
designation of all other college expenses for which he
might be liable in the future.7 The plaintiff sought only
to have the defendant held in contempt for failing to
provide payment for tuition, room, and board related
to the two undergraduate colleges in which the children,
ages eighteen and nineteen, had enrolled. The defendant
did not dispute that tuition, room, and board may not
be reasonably encompassed by the term ‘‘college
expenses,’’ in the parties’ agreement. Accordingly, we
also decline to consider the defendant’s second claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 46b-56c provides in relevant part: ‘‘(a) For purposes
of this section, an educational support order is an order entered by a court
requiring a parent to provide support for a child or children to attend for
up to a total of four full academic years an institution of higher education
. . . for the purpose of attaining a bachelor’s or other undergraduate degree
. . . . An educational support order may be entered with respect to any
child who has not attained twenty-three years of age and shall terminate
not later than the date on which the child attains twenty-three years of age.
‘‘(b) (1) On motion or petition of a parent, the court may enter an educa-
tional support order at the time of entry of a decree of dissolution . . . and
no educational support order may be entered thereafter unless the decree
explicitly provides that a motion or petition for an educational support order
may be filed by either parent at a subsequent date. If no educational support
order is entered at the time of entry of a decree of dissolution . . . and
the parents have a child who has not attained twenty-three years of age,
the court shall inform the parents that no educational support order may
be entered thereafter. The court may accept a parent’s waiver of the right
to file a motion or petition for an educational support order upon a finding
that the parent fully understands the consequences of such waiver. . . .
‘‘(c) The court may not enter an educational support order pursuant to
this section unless the court finds as a matter of fact that it is more likely
than not that the parents would have provided support to the child for
higher education . . . if the family were intact. . . .
‘‘(f) The educational support order may include support for any necessary
educational expense, including room, board, dues, tuition, fees, registration
and application costs, but such expenses shall not be more than the amount
charged by The University of Connecticut for a full-time in-state student at
the time the child for whom educational support is being ordered matricu-
lates, except this limit may be exceeded by agreement of the parents. An
educational support order may also include the cost of books and medical
insurance for such child.’’
2
See General Statutes § 46b-56c (c), set forth in footnote 1 of this opinion.
3
Upon our examination of the form utilized by the Litchfield Superior
Court, we disagree that it is intended to constitute an agreement to an
educational support order subject to all the provisions and limitations of
§ 46b-56c at the time of a judgment of dissolution, as the defendant claims.
The form is an advisement of rights and waiver form intended to comply
with the provisions of § 46b-56 (b) (1), which mandates that the court assure
that the parties seeking a dissolution understand the consequences of not
requesting an educational support order be issued at the time of the dissolu-
tion. The form notifies divorcing parties that if they wish to request the
inclusion of an educational support order as part of their divorce decree,
they must so notify the court at the time of the dissolution. It allows for
the parties to advise the court that they are waiving their right to request
an educational support order, requesting the court to retain jurisdiction to
consider the issue at a future time, or asking the court to enter an educational
support order on that day. It is insufficient to inform the court as to the
precise nature of the educational support order the parties desire, as even
a statutory order may vary in its terms. See General Statutes § 46b-56c (f)
and (g).
The box the parties checked reads: ‘‘I ask the court to enter an Educational
Support Order today.’’ Neither the court nor the clerk signed it. The judgment
file incorporated the parties’ agreement and made its provisions an order
of the court, which encompassed the parties’ agreement as to college
expenses. A box on the judgment file reflecting any further order regarding
educational support is not checked. We further note that the preamble to
the parties’ agreement provides that the execution of the agreement reflected
their ‘‘intention that henceforth there shall be as between them only such
rights and obligations as are specifically provided in this Agreement.’’ In
section 11, they further agreed that their agreement ‘‘contains the entire
understanding of the parties. There are no representations, promises, war-
ranties, covenants or undertakings other than those expressly set forth
herein.’’
Moreover, the educational support order statute contemplates that such
orders may be entered pursuant to any other provision of the general statutes
authorizing the court to make an order of support for a child. See § 46b-
56c (b) (4). Indeed, pursuant to General Statutes § 46b-66 (a), which governs
orders of postmajority support, the parties to a dissolution may enter into
any written agreement that ‘‘provides for the care, education, maintenance
or support of a child beyond the age of eighteen . . . .’’ (Emphasis added.)
See also Hirtle v. Hirtle, 217 Conn. 394, 399–400, 586 A.2d 578 (1991).
4
The court noted, however, that ‘‘[a]s [the defendant] has pointed out,
unilateral mistake is not a defense to a breach of contract claim.’’ The court
found that the parties did not request the form nor did the dissolution court
enter an order in accordance with any representations made on the form
or sign the form, nor was the form attached to the agreement or incorporated
into the judgment. The judge who presided over the dissolution did not
check the box contained in the judgment form that provides for the entry
of an educational support order; rather, the court found only that the parties’
agreement was fair and equitable and incorporated it into the judgment of
dissolution. Furthermore, in the canvasses conducted of both parties by
Talbot during the dissolution hearing, there is no reference to the court
form, and she asked each of them only if they wished to have their agreement
incorporated into the judgment.
5
This court granted the defendant’s motion for review of the trial court’s
denial of the motion for articulation filed on June 8, 2016, but denied the
relief he requested. ‘‘[A]n articulation elaborates upon, or explains, a matter
that the trial court decided.’’ State v. Walker, 319 Conn. 668, 680, 126 A.3d
1087 (2015). The rule regarding motions for articulation cannot be used to
‘‘import into the record matters that were never presented to the trial court
. . . .’’ (Citations omitted.) W. Horton & K. Bartschi, Connecticut Practice
Series: Connecticut Rules of Appellate Procedure (2016–2017 Ed.) § 66-5,
comment 5, p. 190; see also State v. Brunetti, 279 Conn. 39, 55 n.27, 901
A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d
85 (2007).
6
The defendant asserts that there is an expansive list of possible college
related expenses for which he could be held responsible. In his brief, the
defendant poses a number of ‘‘what if’’ questions with respect to possible
future requests for a variety of arguably college related expenses, e.g., first-
class airfare, study abroad, and graduate school, which were not the subject
of the motion for contempt. ‘‘[C]ourts are called upon to determine existing
controversies, and thus may not be used as a vehicle to obtain advisory
judicial opinions on points of law. . . .’’ (Internal quotation marks omitted.)
State v. Preston, 286 Conn. 367, 374, 944 A.2d 276 (2008).
7
We note that, following Attorney Talbot’s canvass of the defendant during
the dissolution proceedings, the court, Ginocchio, J., and the defendant
engaged in the following colloquy:
‘‘The Court: All right, I’m just—my only question is you have assets here,
you have a substantial salary, you know the situation better than anyone, but
you didn’t take advantage of an opportunity to speak to a lawyer about this?
‘‘The Witness: You know, the main purpose of what I went through was
for my children, and that’s what I feel based upon what our lifestyle has
been, my children need that.
‘‘The Court: All right, as long as you know if you start speaking to someone
else or you do talk to a lawyer and someone might tell you perhaps you
were overly generous or something to that extent, you will not be able to
come back here and say, oh, I made a mistake or I probably should have
been a little more careful about how I made the decisions. . . . I will give
you the opportunity today if you wanted to speak with a lawyer, I will give
you that opportunity. But if you’re okay with it.
‘‘The Witness: I’m fine with it.’’