Yomtov v. Yomtov ( 2014 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
BRIAN YOMTOV v. SALLY YOMTOV
(AC 35440)
Alvord, Mullins and Lavery, Js.
Argued May 28—officially released August 19, 2014
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. Stanley Novack, judge trial
referee [dissolution judgment]; S. Richards, J. [motion
for credit].)
Barbara M. Schellenberg, with whom, on the brief,
was Jocelyn B. Hurwitz, for the appellant (plaintiff).
Charles D. Ray, with whom were Heidi E. Opinsky
and, on the brief, Lee Friend Lizotte, for the appellee
(defendant).
Opinion
LAVERY, J. The plaintiff, Brian Yomtov, appeals from
the trial court’s postjudgment order denying his motion
for a credit toward the alimony and child support obliga-
tions that he had been ordered to pay to the defendant,
Sally Yomtov, pursuant to a dissolution judgment. The
plaintiff claims that the court incorrectly interpreted
the term ‘‘gross annual income from employment’’ in
the parties’ separation agreement by improperly equat-
ing the income of his limited liability company with
that actually received by him in his individual capacity
after he deducts his company’s expenses. We agree and
reverse the judgment of the trial court.
The record reveals the following facts. The parties
were married on April 8, 2006, and had two children.
Their marriage was dissolved by the court, Hon. Stanley
Novack, judge trial referee, on November 22, 2011, at
which time their separation agreement (agreement) was
incorporated by reference into the dissolution decree.
See General Statutes § 46b-66. The plaintiff is a chiro-
practor and the sole proprietor of Advanced Chiroprac-
tic and Wellness, LLC, a limited liability company.
The following sections of the agreement are relevant
to our disposition of this appeal. Section 3.1 of the
agreement provides in relevant part: ‘‘Commencing
December 1, 2011, the [plaintiff] shall pay the [defen-
dant] forty-five percent (45%) of his gross annual
income from employment, as defined in [§] 3.2 herein,
as and for unallocated alimony and child support.’’ Sec-
tion 3.2 of the agreement provides: ‘‘The term ‘gross
annual income from employment’ as used in [article
three of the agreement] with regard to income of both
parties is defined for the purpose hereof to mean
income actually received by the [plaintiff] or the [defen-
dant] and income which he/she has a right to receive
in each calendar year from any and all sources derived.
Without limiting the generality of the foregoing, ‘gross
annual income from employment’ shall include earned,
taxable and nontaxable income and in particular, all
income from draws, wages, salaries, insurance pay-
ments, insurance reimbursements, cash payments,
sales of vitamins, pillows and other products, bonuses,
pensions, consulting or other fees, commissions, and
compensation for or by reason of past, present or future
employment or self-employment, in whatever form
received, including payments in cash, in kind, stock or
otherwise, income from one or more businesses, net
rental income, annuities, life insurance contracts, royal-
ties, and partnership distributions. In the event either
party’s employer shall be a Subchapter S corporation
or taxed as a partnership, and that party shall be a
stockholder of said corporation, the party’s ‘gross
annual income from employment’ from said corporation
shall be his/her income as distributed and he/she shall
not be entitled to deductions for business expenses as
made by the corporation. Losses for any Subchapter S
corporation shall not reduce that party’s ‘gross annual
income from employment’ except to the extent that
such losses are actually realized by him/her.’’
On May 22, 2012, the plaintiff filed a postjudgment
motion for a credit toward his alimony and child support
obligations to the defendant, alleging that ‘‘[he] is enti-
tled to a credit in the amount of $6795.17 [from the
defendant] as a result of a misunderstanding of his
obligation to the defendant [to pay unallocated alimony
and child support] and resulting overpayment from
December, 2011 to April, 2012.’’ The plaintiff detailed
that, specifically, ‘‘while the [agreement] requires the
plaintiff to make an excess support payment to the
defendant to the extent that 45% of his gross annual
income from employment exceeds $5000 per month,
the plaintiff made excess payments to the defendant
based on a mistaken belief that he was obligated to
make an excess support payment to the extent that
45% of the gross revenue received by his company,
Advanced Chiropractic and Wellness, LLC, exceeded
$5000 per month.’’ (Emphasis in original.) The defen-
dant objected to the plaintiff’s motion arguing that the
term ‘‘gross annual income from employment’’ is specif-
ically and broadly defined in § 3.2 of the parties’
agreement and that deductions to the plaintiff’s gross
annual income is silent with respect to his business
income.
A hearing on the plaintiff’s motion was held over
several days, and on February 1, 2013, the court, S.
Richards, J., denied the plaintiff’s motion. Specifically,
the court determined: ‘‘[T]he court agrees with the
defendant’s contention that the definition of the term
‘gross annual income from employment’ is to be inter-
preted broadly and, pursuant to said section, without
limitation, and omits any language whatsoever that
could be construed to mean that the plaintiff has the
right to deduct the plaintiff’s business expenses
incurred in the operation of [his company]. The defen-
dant propounds that [§] 3.2 [of the agreement] contains
absolutely no words that purport to permit such a
deduction from the either party’s gross annual income
from employment, and the court agrees. In stark con-
trast, unlike the preceding sentence, the very next full
sentence that follows the sentence that defines the term
‘gross annual income from employment’ explicitly and
unambiguously prohibits a party from deducting busi-
ness expenses. It reads, in its entirety: ‘In the event
either party’s employer shall be a Subchapter S corpora-
tion and taxed as a partnership, and that party shall be
a stockholder of said corporation, the party’s ‘gross
annual income from employment’ from said corporation
shall be his/her income as distributed and he/she shall
not be entitled to deductions for business expenses as
made by the corporation.’
‘‘What the court finds is that the language of [§] 3.2
comprises . . . wide expanses of categories of words
used to describe the kinds and sources of income that
will be factored into [a certified public accountant’s]
computation of the plaintiff’s income and is virtually
all encompassing without any limitations, exceptions,
exclusions, conditions or other qualifiers. Thus, this
court will not engage in some sort of manipulation on
the order of verbal acrobatics in order to incorporate
language that simply does not exist on the face of the
separation agreement so that [the accountant] can sub-
tract the business expenses of [the plaintiff’s company]
from the plaintiff’s income as the court finds that the
separation agreement is unambiguous. The definition
at issue here clearly and unequivocally describes the
meaning of a party’s ‘gross annual income from employ-
ment’ for purposes of determining unallocated alimony
and child support, and, as such, the words contained
therein have been given their common and ordinary
meaning by this court.’’1
The sole issue is whether the court properly deter-
mined that, under § 3.2 of the agreement, the plaintiff’s
‘‘gross annual income from employment’’ is the total
revenue of his limited liability company, and not the
income actually received by the plaintiff from his lim-
ited liability company after deducting the company’s
expenses. We begin by setting forth the applicable stan-
dard of review and principles of law. ‘‘It is firmly estab-
lished that a separation agreement incorporated into
a dissolution decree is regarded and construed as a
contract. Eckert v. Eckert, 285 Conn. 687, 692, 941 A.2d
301 (2008); Issler v. Issler, 250 Conn. 226, 235, 737 A.2d
383 (1999); Breiter v. Breiter, 80 Conn. App. 332, 336–37,
835 A.2d 111 (2003). . . . [T]he construction of a writ-
ten contract is a question of law requiring plenary
review.’’ (Citation omitted; internal quotation marks
omitted.) Flaherty v. Flaherty, 120 Conn. App. 266, 268–
69, 990 A.2d 1274 (2010).
Our plenary review of the agreement is guided by
the following principles of contract interpretation: ‘‘Our
Supreme Court has instructed that interpretation of a
separation agreement incorporated into a dissolution
decree ‘is guided by the general principles governing
the construction of contracts. . . . A contract must be
construed to effectuate the intent of the parties, which
is determined from the language used interpreted in
the light of the situation of the parties and the circum-
stances connected with the transaction. . . . [T]he
intent of the parties is to be ascertained by a fair and
reasonable construction of the written words and . . .
the language used must be accorded its common, natu-
ral, and ordinary meaning and usage where it can be
sensibly applied to the subject matter of the contract.
. . . Where the language of the contract is clear and
unambiguous, the contract is to be given effect
according to its terms. A court will not torture words
to import ambiguity where the ordinary meaning leaves
no room for ambiguity . . . . Similarly, any ambiguity
in a contract must emanate from the language used in
the contract rather than from one party’s subjective
perception of the terms.’ . . . Eckert v. Eckert, [supra,
285 Conn. 692]; see also Isham v. Isham, 292 Conn.
170, 180–81, 972 A.2d 228 (2009); Danehy v. Danehy,
[118 Conn. App. 29, 33, 982 A.2d 273 (2009)].’’ Nassra
v. Nassra, 139 Conn. App. 661, 667, 56 A.3d 970 (2012).
‘‘Moreover, the mere fact that the parties advance differ-
ent interpretations of the language in question does not
necessitate a conclusion that the language is ambigu-
ous.’’ (Internal quotation marks omitted.) Eckert v. Eck-
ert, supra, 692.
We agree with the plaintiff that the court’s determina-
tion is contrary to the plain and unambiguous language
of the agreement. It is well settled in Connecticut that
‘‘[a] limited liability company is a distinct legal entity
whose existence is separate from its members.’’ Wasko
v. Farley, 108 Conn. App. 156, 170, 947 A.2d 978, cert.
denied, 289 Conn. 922, 958 A.2d 155 (2008); see also
General Statutes § 34-134; O’Reilly v. Valletta, 139 Conn.
App. 208, 214–15, 55 A.3d 583 (2012), cert. denied, 308
Conn. 914, 61 A.3d 1101 (2013). The parties to the
agreement were the plaintiff and the defendant, not the
plaintiff’s limited liability company and the defendant.
As indicated, § 3.2 of the agreement defines ‘‘gross
annual income from employment’’ in relevant part as
‘‘income actually received by the [plaintiff] . . . and
income which [he] has a right to receive in each calen-
dar year from any and all sources derived . . . [and]
shall include earned, taxable and nontaxable income
and in particular, all income from draws, wages, salaries
. . . [and] income from one or more businesses . . . .’’
(Emphasis added.) This language is clear that the term
‘‘gross annual income from employment’’ is defined as
income actually received by the plaintiff, and not the
income actually received by his limited liability
company.
Furthermore, ‘‘[w]hen construing the contract, we
are mindful that [t]he contract must be viewed in its
entirety, with each provision read in light of the other
provisions . . . and every provision must be given
effect if it is possible to do so. . . . In giving effect to
all of the language of the contract, the law of contract
interpretation . . . militates against interpreting a con-
tract in a way that renders a provision superfluous.’’
(Citation omitted; internal quotation marks omitted.)
Flaherty v. Flaherty, supra, 120 Conn. App. 270. An
interpretation of the agreement that equates the plain-
tiff’s income with that of his limited liability company
renders portions of § 3.2 contradictory and superfluous;
namely, that the plaintiff’s ‘‘gross annual income from
employment’’ shall include ‘‘all income from draws’’
and ‘‘income from one or more businesses.’’ We further
note that such an interpretation renders other portions
of the agreement superfluous and contradictory, such
as section 10.1, which distinguishes the plaintiff’s indi-
vidual income tax liability from his business income
tax liability.2
Moreover, the circumstances of the parties at the
time of the dissolution do not support the contention
that the plaintiff’s income is that of his limited liability
company. Generally, ‘‘[a] contract must be construed to
effectuate the intent of the parties, which is determined
from the language used interpreted in the light of the
situation of the parties and the circumstances con-
nected with the transaction.’’ (Internal quotation marks
omitted.) Nassra v. Nassra, supra, 139 Conn. App. 667.
The plaintiff’s financial affidavit at the time of the disso-
lution, referenced throughout article eight of the
agreement, and relied upon by Judge Novack in approv-
ing the parties’ alimony and child support arrangement,
indicates that the plaintiff’s weekly employment income
is what he receives from his limited liability company
after accounting for all expenses of the business.
Accordingly, a plain and unambiguous reading of the
agreement in the light of the circumstances connected
with the transaction, does not support the court’s deter-
mination that the income of the plaintiff’s limited liabil-
ity company is the basis for calculation of the plaintiff’s
‘‘gross annual income from employment,’’ as defined in
§ 3.2 of the agreement. Rather, a fair and reasonable
construction of the written words allows the plaintiff
to deduct his company’s expenses before calculating
his ‘‘gross annual income from employment.’’
The court’s reliance on the subchapter S language of
§ 3.2 of the agreement as evidence that the agreement
‘‘explicitly and unambiguously prohibits a party from
deducting business expenses’’ was improper. The plain-
tiff’s company is not, and never was, a subchapter S
corporation; rather, his business was a limited liability
company at the time of the marriage dissolution, and
remained a limited liability company at the time of the
hearing on his motion. Nonetheless, the defendant
argues that the court’s reliance on the subchapter S
language of the agreement was proper. Specifically, she
asserts that, first, ‘‘[t]here is nothing in [the] definition
[of ‘gross annual income from employment’] that pur-
ports to allow either party to deduct business expenses
(or any expense for that matter) in order to determine
their ‘gross annual income from employment.’ There is
no language in the agreement’s definition of ‘gross
annual income from employment’ that allows the plain-
tiff to treat himself as a separate and distinct entity
from his business . . . .’’ Second, at oral argument
before this court, the defendant asserted that the sub-
chapter S language was incorporated into the
agreement ‘‘as an example of what the parties
intended.’’
The defendant’s arguments are without merit. ‘‘In
interpreting contract terms, we have repeatedly stated
that the intent of the parties is to be ascertained by a
fair and reasonable construction of the written words
and that the language used must be accorded its com-
mon, natural, and ordinary meaning and usage where
it can be sensibly applied to the subject matter of the
contract.’’ (Internal quotation marks omitted.) Wolosoff
v. Wolosoff, 91 Conn. App. 374, 381, 880 A.2d 977 (2005).
There is no language in the agreement indicating that
the legal status of the plaintiff’s limited liability com-
pany is to be disregarded for the purpose of the calcula-
tion of the plaintiff’s income; on the contrary, as detailed
previously, a plain reading of the terms in light of the
circumstances of the parties at the time of dissolution
indicates the contrary. Accordingly, the court’s interpre-
tation is contrary to the common, natural, and ordinary
meaning of the agreement’s words and is unreasonable.3
The judgment is reversed and the case is remanded
with direction to render judgment granting the plain-
tiff’s motion for a credit toward alimony and child sup-
port and for further proceedings to determine the
amount of credit owed to the plaintiff.
In this opinion the other judges concurred.
1
Section 3.4 B of the agreement provides in relevant part: ‘‘For the duration
of the unallocated alimony and support period, at six (6) month intervals,
the [plaintiff] shall deliver to the [defendant] a computation describing the
total amount of his ‘gross annual income from employment’, as defined
above, received during the six (6) months immediately preceding the date
of such statement. The [plaintiff] shall also calculate and deliver to the
[defendant] at the same time a computation describing the total amounts
which she should have received during the preceding six (6) months pursuant
to the terms of this Agreement. Upon the [defendant’s] request, such compu-
tations as are required under this Agreement shall be certified by a certified
public accountant as being accurate and correct and truly reflective of the
[plaintiff’s] gross income from employment for the previous six (6) months
as well as the [plaintiff’s] income from all sources as the same is herein
defined for the period in question. The parties shall divide the cost of the
auditor equally. . . .’’
2
Section 10.1 of the agreement provides in relevant part: ‘‘In the event
of an audit or other action pertaining to the parties’ income tax liability or
the [plaintiff’s] business income tax liability, the [plaintiff] shall provide his
own counsel and, if necessary, accountant and he shall pay for the costs
of the same.’’
3
We also reject the defendant’s argument analogizing the tax treatment
of limited liability companies to that of subchapter S corporations under
the Internal Revenue Code. Our principles of contract interpretation do not
support the defendant’s contention that federal tax law can be an indicator
of the parties’ intent. Further, we find the defendant’s reliance on Krane v.
Krane, 99 Conn. App. 429, 430–32, 913 A.2d 1143 (2007), unpersuasive;
namely, while true that, when reviewing a separation agreement with sub-
chapter S language very similar to that of the agreement at issue here, this
court affirmed the trial court’s decision that the party at issue may not
deduct the business expenses of his corporation before calculating his gross
annual income from employment, in Krane the party’s corporation was
actually a subchapter S corporation.