Halperin v. Halperin ( 2020 )

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MICHAEL HALPERIN v. RONDA HALPERIN
(AC 40934)
Alvord, Elgo and Devlin, Js.
Syllabus
The plaintiff, whose marriage to the defendant previously had been dis-
solved, appealed to this court from the postjudgment order of the trial
court ordering him to include income derived from two entities, C
Co. and I Co., in the calculation of his unallocated support obligation.
Pursuant to a provision in the parties’ separation agreement, which was
incorporated into the dissolution judgment, the plaintiff was required
to pay the defendant unallocated support, which was to be calculated
using a decreasing percentage of the plaintiff’s gross base income and
quarterly bonuses over a twelve year schedule. That provision also
provided that income for purposes of the calculation was the parties’
respective total income that had ‘‘historically been listed’’ on line 22,
or the equivalent, of their joint 1040 federal tax returns, and expressly
included all employment, business and partnership income, but specifi-
cally excluded any income received by the plaintiff from patents or
inventions that he created or obtained. Following the dissolution of the
parties’ marriage in 2010, the plaintiff acquired ownership interests in
C Co. and I Co. Thereafter, the defendant filed an amended motion
for contempt, arguing that the plaintiff had underpaid her unallocated
support for the years 2010 through 2013. At the hearing on the motion,
the central issue before the trial court was whether, pursuant to the
unallocated support provision, income that the plaintiff had earned from
C Co. and I Co. and similar future income was to be included in the
calculation of the unallocated support. The trial court found that the
provision was ambiguous and, crediting the defendant’s testimony
regarding the meaning of the phrase ‘‘historically been listed’’ as used
in the provision, determined that the parties intended to include the
income at issue in the plaintiff’s total income for purposes of determining
his unallocated support obligation. Held that the plaintiff could not
prevail on his claim that the trial court improperly interpreted the subject
provision of the separation agreement in determining that income
received from C Co. and I Co. was included in the definition of total
income for purposes of calculating the plaintiff’s unallocated support
obligation: that court’s determination that the parties intended to include
the income at issue in the plaintiff’s total income for purposes of
determining his unallocated support obligation was not clearly errone-
ous, as the term ‘‘historically,’’ as used in the provision’s income defini-
tion, modified ‘‘total income,’’ which referenced income on line 22 of
form 1040, total income under the provision expressly included all
employment, business and partnership income, the plaintiff character-
ized his income from C Co. and I Co. as partnership income on his
federal tax returns and the plaintiff recognized that his profits from C
Co. were reflected on line 22 of form 1040, and the plaintiff’s contention
that the phrase ‘‘historically been listed’’ should be construed as referring
only to how he had historically earned income as a physician was
unavailing, as that construction would render the provision’s specific
exclusion of income derived from the plaintiff’s patents and inventions
superfluous; moreover, there was no merit to the plaintiff’s argument
that, because his interests in C Co. and I Co. were purchased with cash
assets awarded to him at the time of the dissolution, the income received
from his investment of the cash assets should not be redistributed again,
as his argument confused an award of assets with a support award
based on the income stream derived from an asset, and the cases relied
on by the plaintiff were distinguishable from the present case; further-
more, this court was not persuaded by the plaintiff’s argument that
equitable principles required that his income from C Co. and I Co. be
excluded from the calculation of unallocated support.
Argued November 13, 2019—officially released March 24, 2020
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of New London at Norwich, where the court,
Boland, J., rendered judgment dissolving the marriage
and granting certain other relief in accordance with the
parties’ separation agreement; thereafter, the defendant
filed a motion for contempt; subsequently, the court,
Carbonneau, J., issued an order regarding the plaintiff’s
unallocated support obligation, and the plaintiff
appealed to this court. Affirmed.
Cody A. Layton, with whom, on the brief, was Drzis-
lav Coric, for the appellant (plaintiff).
Campbell D. Barrett, with whom, on the brief, was
Johanna S. Katz, for the appellee (defendant).
Opinion
ALVORD, J. In this marital dissolution action, the
plaintiff, Michael Halperin, appeals from the trial court’s
postdissolution order resolving the motion for con-
tempt filed by the defendant, Ronda Halperin. On
appeal, the plaintiff claims that the court erred in inter-
preting the provision of the parties’ separation agree-
ment governing unallocated alimony and child support,
namely, that income derived from certain investments
made by the plaintiff is includable in his total income
for purposes of determining his unallocated support
obligation. We affirm the judgment of the trial court.
The record reveals the following facts and procedural
history. The parties were divorced on March 11, 2010.
The dissolution judgment incorporated by reference a
separation agreement executed by the parties on the
same date. Section 8 of the separation agreement1 gov-
erns unallocated support and requires the plaintiff to
pay to the defendant a decreasing percentage of his
‘‘gross base income’’ and ‘‘quarterly bonuses’’ over a
twelve year schedule ending on March 11, 2022. Section
8 further provides: ‘‘Income for purposes of this calcula-
tion shall be the parties’ respective ‘total income’ that
has historically been listed on line 22 (or the equivalent)
of their joint 1040 federal tax returns. This shall include
all employment, business, partnership, consulting or
real estate income, whether received in cash or not,
but shall specifically exclude all interest, dividend and
capital gains income realized from assets divided as
part of the property distribution component of this dis-
solution [j]udgment and any income received by the
plaintiff . . . as the result of patents or inventions
which he has created and obtained. Capital losses, for
whatever purpose, shall not serve as a reduction of a
[party’s] income. By way of example, if the numbers
contained on the parties’ joint 2008 [tax] return were
used as part of his calculus, the plaintiff’s unallocated
support obligation would be based on $1,205,113.00 in
income (the amount listed on line 22 ($1,216,295.00)
plus capital loss ($3,000.00) minus interest $11,527.00)
minus ordinary dividends ($2,655.00)).’’
Section 12 (a) of the separation agreement provides,
inter alia, for the sale of certain real property owned
by the parties. Under that provision, the plaintiff was
entitled to the first $2,105,000 from any sale or sales in
exchange for the defendant’s receiving, at the time of
the dissolution, certain other real property owned by
the parties. After the first $2,105,000, the parties were
to divide the remaining net proceeds of any sale or
sales on an equal basis.
After preparing the separation agreement, the parties,
both represented by counsel, appeared before the court,
Boland, J. The plaintiff and the defendant were both
canvassed by their counsel.2 Following the individual
canvasses by counsel, the court sought clarification,
‘‘given the complexity of th[e] agreement.’’ The follow-
ing colloquy occurred:
‘‘The Court: [A]s to the total income which is the
basis for calculation of how much the plaintiff is going
to pay to the defendant, I note that you specify line 22
on federal form 1040. I don’t have that form in front of
me. My recollection is that that line is distinct from the
adjusted gross income line—which is around line 31 or
something like that—and the difference between the
two is the subtraction of certain items such as a taxpay-
er’s contributions to a 401 (k) plan, cost of self-
employed health insurance, and other items. Are you
with me so far?
‘‘[The Defendant’s Counsel]: Yes.
‘‘The Court: And so, I just want to clarify that the
understanding of both parties is that those items are
to be disregarded with respect to the alimony and child
support payments. Correct?
‘‘[The Plaintiff’s Counsel]: That’s the—that’s your
understanding?
‘‘[The Plaintiff]: Yes.
‘‘[The Plaintiff’s Counsel]: I’ve explained that to you.
‘‘The Court: Okay.
‘‘[The Defendant’s Counsel]: And that’s your under-
standing as well, ma’am?
‘‘[The Defendant]: Yes.
‘‘The Court: And that’s set forth in the agreement.
The only reason that I raise it as an issue is that some-
times an agreement such as this will refer to adjusted
gross income, and I wanted to make sure that this was
deliberate and not accidental.’’
The court stated that it had examined the agreement,
found it fair and equitable, and incorporated it into the
divorce decree.
On February 26, 2014, the defendant filed a motion
for contempt, arguing that the plaintiff had underpaid
unallocated support for the years 2010 through 2012.
On June 12, 2014, the defendant filed an amended
motion for contempt, arguing that the plaintiff also had
underpaid unallocated support for 2013. The parties
appeared before the court, Carbonneau, J., on June 20
and September 24, 2014. The central dispute as framed
by counsel involved the interpretation of the term ‘‘his-
torically’’ as used in § 8 of the separation agreement.3
Specifically, following the dissolution of the parties’
marriage, the plaintiff had acquired ownership interests
in two entities, Constitution Surgery Center East
(CSCE)4 and International Spine and Orthopedic Insti-
tute (ISOI). The issue before the court was whether
profits received from the plaintiff’s ownership interest
in such entities were to be included in the unallocated
support calculation. The parties filed briefs and reply
briefs in December, 2014.
On December 19, 2014, the court sua sponte ordered
the matter returned to court for ‘‘a further evidentiary
hearing concerning latent ambiguities in the parties’
[separation] agreement . . . .’’ Specifically, the court
requested evidence regarding ‘‘whether the language of
the [separation agreement] is plain and unambiguous
and if the meaning is clear.’’ On March 30 and August
28, 2015, the parties appeared before the court and
offered testimony as to their understanding of the sepa-
ration agreement provision at issue. The parties filed
supplemental briefs on September 30, 2015, and the
plaintiff filed a reply brief on October 7, 2015.
On January 20, 2016, the court issued a memorandum
of decision. It found, in relevant part, as follows: ‘‘[The]
plaintiff is a successful spine surgeon. He is inventive,
innovative and entrepreneurial. [The] defendant is an
attorney, but she does not now, and has not practiced
law for some time. The court observed these parties to
be highly educated, articulate, thoughtful and discern-
ing individuals. . . . During the marriage [the] plaintiff
created a ‘TFAS’ device to be implanted in a person’s
back. He received income from Globus Corporation for
this implant, first through Norwich Orthopedic Group
and later directly. He also received consulting income
for teaching other doctors how to use and implant the
device. . . . The parties declared income or losses
from S corporations and partnerships during their mar-
riage. [The] plaintiff continued to report such income
after the marriage through 2013. . . . [The] defendant
kept two real properties from the marital estate. To
compensate [the] plaintiff for this, he received the first
$2.1 million from the sale of other marital real estate.
. . . [The] plaintiff placed these proceeds in a [new]
Fidelity . . . account that he [opened after] the
divorce. . . . He used a portion of this money to buy
a house for $950,000. From February, 2011 to the end
of 2013, he made several purchases totaling $558,488
from the Fidelity account to buy a 10.6222 [percent]
interest in [CSCE] and a 1 [percent] interest in [ISOI].
. . . ISOI has yet to generate significant profit, but, in
2011, his interest in [CSCE] earned [the] plaintiff $2357;
in 2012, $69,923; and in 2013, $425,467. . . . [The] plain-
tiff reported this income on ‘[s]chedule E’ of his federal
tax returns. . . . The [Internal Revenue Service (IRS)]
provides different schedules to set out the details of
different types of income. These schedules are
appended to the standard 1040 form when required.
Schedule B is used for taxable interest and ordinary
dividends; [s]chedule C for business income or loss;
[and] [s]chedule D for capital gain or loss. Schedule E
is used to list supplemental income and loss from rental
real estate, royalties, partnerships, S corporations,
estates, trusts, and the like. . . . [The] plaintiff did not
include money he earned from [CSCE] or ISOI in this
calculation of unallocated support owed to [the defen-
dant] in 2012 or 2013 under the terms of the agreement.’’
(Footnotes omitted.)
The court declined to find the plaintiff in contempt,
on the basis that any noncompliance with the dissolu-
tion judgment was not wilful. Exercising its broad dis-
cretion to make whole a party who has suffered as a
result of another party’s failure to comply with a court
order, however, the court ordered the plaintiff to
include within the calculation of the defendant’s unallo-
cated support the income he earned and now earns
from CSCE and ISOI and similar future income during
the contracted support term.
The court addressed each of the plaintiff’s arguments
in turn. It first rejected the plaintiff’s argument premised
on fairness; see Dan v. Dan, 315 Conn. 1, 105 A.3d 118
(2014); as misplaced, stating that ‘‘[w]hile it might not
be ‘fair’ for an ex-spouse to share in the former spouse’s
postjudgment income that the spouse did not in any
way help create, that spouse should not be deprived of
the benefit of an insightful prejudgment bargain even
as it extends to such income.’’ (Emphasis in original.)
The court likewise disagreed with the plaintiff’s argu-
ment that the separation agreement excludes from the
unallocated support calculation any partnership income
earned from CSCE and ISOI because his interests in
those entities are a conversion of the assets he received
in the dissolution property settlement. The court, noting
that the plaintiff himself had characterized what he had
received from CSCE and ISOI as ‘‘partnership income’’
on schedule E of his federal income tax returns, con-
cluded that the income received from CSCE and ISOI
is not a conversion of marital assets.5
Turning to the central issue, the court credited the
defendant’s testimony and explanation of the meaning
of the phrase ‘‘historically been listed,’’ which it found
‘‘was intended by the parties to fix in time the categories
of income includable in the calculation of [the] plain-
tiff’s unallocated support obligation to [the] defendant
and their children.’’ Specifically, the court accepted the
defendant’s explanation that income ‘‘correspond[ed]
to the categories used by the IRS to make up line 22
of the 1040 form.’’ In accepting this explanation, the
court noted that ‘‘[f]uture changes in tax law or IRS
Form 1040 could fundamentally alter the interpretation
of the agreement [and] undo their intentions.’’ The court
rejected the plaintiff’s construction of ‘‘historically been
listed,’’ which was that the term referred to ‘‘the specific
sources and/or types of income,’’ and ‘‘clearly show[ed]
the parties looking backward in time, not forward, for
sources and/or types [of income] to be included in the
income calculation.’’
Lastly, the court determined that the defendant was
entitled to statutory interest. Because the parties had
not submitted any evidence as to how the defendant
would have used, invested, or conserved the funds owed
to her, the court declined to specify a rate of interest.
It instead ordered the parties to calculate an appropriate
award of interest and to submit any resulting dispute to
the court for determination, if necessary. Subsequently,
the parties agreed to a 5 percent interest rate, and the
court adopted the defendant’s calculation of the unallo-
cated support due to her from the plaintiff. This
appeal followed.
On appeal, the plaintiff claims that the court improp-
erly interpreted the separation agreement to determine
that income received from CSCE and ISOI is includable
within the definition of total income for purposes of
calculating the plaintiff’s unallocated support obliga-
tion. In support of this claim, the plaintiff argues that
(1) the separation agreement unambiguously excludes
income from CSCE and ISOI from the defendant’s unal-
located support, (2) the plaintiff’s conversion of cash
assets awarded at the time of dissolution to shares of
a surgery center does not create income for purposes
of calculating unallocated support, and (3) equitable
principles require that the plaintiff’s income from CSCE
and ISOI be excluded from the unallocated support
calculation.6 We address each argument in turn.
The plaintiff argues that the separation agreement
‘‘is unambiguous to the extent income from CSCE and
ISOI is excluded from [the] defendant’s unallocated
support.’’ We disagree.
‘‘It is well established that a separation agreement
that has been incorporated into a dissolution decree
and its resulting judgment must be regarded as a con-
tract and construed in accordance with the general
principles governing contracts. . . . When construing
a contract, we seek to determine the intent of the parties
from the language used interpreted in the light of the
situation of the parties and the circumstances con-
nected 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 lan-
guage used must be accorded its common, natural, and
ordinary meaning and usage where it can be sensibly
applied to the subject matter of the contract. . . .
When only one interpretation of a contract is possible,
the court need not look outside the four corners of the
contract. . . . Extrinsic evidence is always admissible,
however, to explain an ambiguity appearing in the
instrument. . . . When the language of a contract is
ambiguous, the determination of the parties’ intent is
a question of fact. . . . When the language is clear and
unambiguous, however, the contract must be given
effect according to its terms, and the determination of
the parties’ intent is a question of law. . . .
‘‘The threshold determination in the construction of a
separation agreement, therefore, is whether, examining
the relevant provision in light of the context of the
situation, the provision at issue is clear and unambigu-
ous, which is a question of law over which our review
is plenary. . . . Contract language is unambiguous
when it has a definite and precise meaning . . . con-
cerning which there is no reasonable basis for a differ-
ence of opinion . . . . The proper inquiry focuses on
whether the agreement on its face is reasonably suscep-
tible of more than one interpretation. . . . It must be
noted, however, that the mere fact that the parties
advance different interpretations of the language in
question does not necessitate a conclusion that the
language is ambiguous. . . . 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 subjec-
tive perception of the terms. . . . Finally, in construing
contracts, we give effect to all the language included
therein, as the law of contract interpretation . . . mili-
tates against interpreting a contract in a way that ren-
ders a provision superfluous.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Isham v. Isham, 292 Conn. 170, 180–82, 972 A.2d 228
(2009).
In the present case, after initially declining to hear
evidence regarding the parties’ understanding of the
disputed term, the court sua sponte opened the evi-
dence to accept extrinsic evidence. It thereafter consid-
ered the extrinsic evidence, including the parties’ testi-
mony, in interpreting the separation agreement and
made factual findings regarding the parties’ intent.
Thus, it is apparent that the court determined that the
disputed provision was ambiguous, a conclusion with
which we agree. Both parties offer plausible interpreta-
tions of the disputed provision. See, e.g., Russell v.
Russell, 95 Conn. App. 219, 222–23, 895 A.2d 862 (2006)
(parties’ intent not clear and certain from language itself
where parties used term ‘‘expenses . . . for comple-
tion’’ of son’s treatment at medical facility and included
another provision referencing payment of ‘‘all college
expenses’’ of other son (internal quotation marks omit-
ted)). Accordingly, the court properly considered
extrinsic evidence to ascertain the intent of the parties
as expressed in the language of the separation
agreement.
Because we have determined that the relevant con-
tract language is ambiguous, ‘‘[t]he determination of
the intent of the parties to a contract . . . is a question
of fact subject to review under the clearly erroneous
standard. . . . This court has stated frequently that [a]
finding of fact is clearly erroneous when there is no
evidence in the record to support it . . . or when
although there is evidence in the record to support it,
the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed. . . . While conducting our review, we
properly afford the court’s findings a great deal of defer-
ence because it is in the unique [position] to view the
evidence presented in a totality of circumstances, i.e.,
including its observations of the demeanor and conduct
of the witnesses and parties, which is not fully reflected
in the cold, printed record which is available to us.’’
(Citation omitted; internal quotation marks omitted.)
Bijur v. Bijur, 79 Conn. App. 752, 761–62, 831 A.2d
824 (2003).
In construing the phrase ‘‘historically been listed,’’ the
court stated that the parties’ predissolution tax returns
showed income or losses from S corporations and part-
nerships. Because this income historically had been
listed, it reasoned that future partnership income
should be included in the unallocated support calcula-
tion, with the exception of certain categories of income
the parties had specifically excluded from the definition
of total income in the separation agreement. The court
referenced the exclusion for ‘‘any income received by
the plaintiff . . . as the result of patents or inventions
which he has created and obtained.’’ In the absence of
this exclusion, the court found, postdissolution patent
and invention income would be includable in the plain-
tiff’s income for purposes of determining his unallo-
cated support obligation. Additionally, the absence of
an exclusion that would encompass the CSCE and ISOI
income supported the determination that the parties
intended such income to be included in the unallocated
support calculation.
The court further found that the ‘‘parties purposely
and specifically selected line 22 of IRS Form 1040 as a
starting point for their definition of income,’’ which
finding is supported by the parties’ responses to that
effect during the canvass at the time of the dissolution.
The court, recognizing that ‘‘[f]uture changes in tax
law or IRS Form 1040 could fundamentally alter the
interpretation of the agreement and undo their inten-
tions,’’ found that the phrases ‘‘historically been listed’’
and ‘‘or the equivalent’’ ‘‘both seek to fix the agreement’s
definition of income in time to make certain that their
obligations and expectation of each other would not
significantly change during the term of the agreement.’’7
Examining the parties’ tax returns in evidence, the
court noted that IRS Form 1040 contained ‘‘seventeen
separate lines including alphabetical subdivisions (8a
and 8b, for example) that precede line 22. Each line is
for different categories of income, such as taxable and
nontaxable interest (lines 8a and 8b), ordinary and qual-
ified dividends (lines 9a and 9b), capital gain or loss
(line 13). There is a separate line for business income
or loss (line 12) and another for partnership income
(line 17). Line 22 is the sum of lines 7 through 21. It
represents the ‘total income’ of the filer from all sources
listed by the IRS.
‘‘ ‘Total income’ in the operative sentence of the [sep-
aration] agreement refers to line 22. It is no coincidence
that the exclusions from income in the parties’ agree-
ment correspond to specific earlier lines in the [IRS
Form] 1040 like interest, capital gains and dividends.
It makes no sense that [the] plaintiff would carve out
these specific exclusions from his income—including
future patents and inventions—and then rely on the
broad and vague phrase ‘historically been listed’ to
shield any other future income.’’8 Accordingly, the court
credited the defendant’s testimony regarding the mean-
ing of the phrase ‘‘historically been listed,’’ which it
found ‘‘was intended by the parties to fix in time the
categories of income includable in the calculation of
[the] plaintiff’s unallocated support obligation to [the]
defendant and their children.’’9
We conclude that the court’s determination that the
parties intended to include the income at issue in the
plaintiff’s total income for purposes of determining his
unallocated support obligation is not clearly erroneous.
‘‘Historically,’’ as used in the income definition modifies
‘‘total income,’’ which references income on line 22 of
IRS Form 1040. Further support for this conclusion is
found in the inclusions and exclusions that immediately
follow the disputed phrase. Notably, total income under
the separation agreement expressly includes ‘‘all
employment, business, [and] partnership . . . income
. . . .’’ (Emphasis added.) As the trial court found, the
plaintiff characterized his income from CSCE and ISOI
as partnership income on schedule E of his federal tax
returns, and the plaintiff himself recognizes that his
profits from CSCE are reflected on line 22 of IRS
Form 1040.
The plaintiff argues that ‘‘a fair reading of [§] 8 [of
the separation agreement] as a whole requires that the
income used to calculate [the] defendant’s unallocated
support under the agreement can only be viewed in a
context that is retrospective.’’ This retrospective view,
according to the plaintiff, encompassed how ‘‘the plain-
tiff ‘historically’ earned money as a physician,’’ i.e., his
biweekly salary and quarterly bonuses. Total income
under the agreement, however, expressly excludes ‘‘all
interest, dividend and capital gains income realized
from assets divided as part of the property distribution
component of this dissolution [j]udgment and any
income received by the plaintiff . . . as the result of
patents or inventions which he has created and
obtained.’’ Were the plaintiff’s construction of the dis-
puted provision to be correct, namely, that the phrase
‘‘historically been listed’’ referred only to how the plain-
tiff had historically earned money as a physician, this
exclusion would be superfluous. ‘‘[I]n construing con-
tracts, we give effect to all the language included
therein, as the law of contract interpretation . . . mili-
tates against interpreting a contract in a way that ren-
ders a provision superfluous.’’ (Internal quotation
marks omitted.) Isham v. Isham, supra, 292 Conn. 182.
The plaintiff points to other provisions of § 8 of the
separation agreement that he contends support his
interpretation. First, he points to the statement that,
‘‘[h]istorically, the plaintiff has been paid by way of
a weekly/biweekly draw and periodic bonuses.’’ That
language, however, is positioned within a paragraph
discussing the timing and duration of the support pay-
ments. Specifically, the statement directly follows lan-
guage stating that ‘‘[t]he plaintiff shall pay his obligation
on a weekly or biweekly basis, via direct deposit,’’ and
immediately precedes language stating that ‘‘[t]he
defendant shall be paid her percentage share of the
plaintiff’s gross income at the time the income is
received by the plaintiff.’’ Accordingly, we do not inter-
pret this language as controlling the sources of income
from which the support is calculated. Second, the plain-
tiff directs this court’s attention to language in § 8 that
provides for the plaintiff’s payment of decreasing per-
centages of his ‘‘gross base income,’’ ‘‘base bi-weekly
gross income,’’ ‘‘quarterly bonuses,’’ and ‘‘quarterly
gross bonuses.’’ Although this language appears to
focus on the plaintiff’s earnings as a physician, we can-
not conclude that it amends the parties’ express defini-
tion of total income for purposes of determining his
unallocated support obligation.
The plaintiff next argues that his interests in CSCE
and ISOI were purchased using cash assets awarded to
him at the time of the dissolution and, therefore, the
income received from his investment of the cash assets
‘‘should not be redistributed yet again.’’ In support of
his argument, he cites Gay v. Gay, 266 Conn. 641, 835
A.2d 1 (2003), Schorsch v. Schorsch, 53 Conn. App. 378,
731 A.2d 330 (1999), and Denley v. Denley, 38 Conn.
App. 349, 661 A.2d 628 (1995), a line of cases that he
concedes is ‘‘factually distinguishable’’ but that he sug-
gests evidences a ‘‘modern trend’’ in our courts of reluc-
tance to ‘‘designate as income for purposes of support,
funds received as a result of the conversion of assets
awarded at the time of the dissolution.’’ The defendant
responds that ‘‘[t]he plaintiff’s argument confuses an
award of assets with a support award based on the
income stream derived from an asset.’’ We agree with
the defendant.
An analysis of the cases relied on by the plaintiff
leads us to conclude that the holdings in those cases
are inapplicable here. The plaintiff cites Schorsch v.
Schorsch, supra, 53 Conn. App. 380, in which the defen-
dant sought a postdissolution modification of his ali-
mony obligation. The issue on appeal was whether the
trial court improperly had included in the calculation
of the defendant’s monthly income certain principal
payments that he was receiving pursuant to a purchase
money mortgage that he held on real property that had
been awarded to him in the dissolution decree. Id., 384.
This court held that the trial court improperly included
as income the principal portion of the mortgage pay-
ment generated from the sale because ‘‘[t]he mere
exchange of an asset awarded as property in a dissolu-
tion decree, for cash, the liquid form of the asset, does
not transform the property into income.’’ (Internal quo-
tation marks omitted.) Id., 385–86. The court in
Schorsch addressed only the principal portion of the
mortgage payments, which constituted the liquid form
of the asset the defendant received in the dissolution
decree, and the interest portion of the payments were
not at issue.
In Denley v. Denley, supra, 38 Conn. App. 350, the
plaintiff sought a postjudgment modification of ali-
mony, arguing that, because he had lost an important
client, his income had decreased substantially. The trial
court concluded that the plaintiff had not met his bur-
den of proving a substantial change in circumstances.
Id. In determining whether the plaintiff’s income had
decreased substantially, the court included in income
the profit that the plaintiff had received through the
redemption of stock options that had been awarded to
him as property in the dissolution decree. Id., 350, 353.
On appeal, this court agreed with the plaintiff that,
‘‘because he was awarded the stock options as property
in the dissolution decree, any money that he received
from the exercise of those stock options was simply
a conversion of an asset and should not have been
considered income by the trial court for purposes of
assessing whether there had been a substantial change
in circumstances.’’ Id., 353. This court concluded that
the trial court should not have included the profit that
the plaintiff generated by exercising his stock options
in determining whether there had been a substantial
change of circumstances because the exercise of the
stock options resulted in a conversion of the asset to
cash and did not transform the property into income. Id.
In Gay v. Gay, supra, 266 Conn. 642, our Supreme
Court considered whether the trial court properly
ordered a modification in alimony payments based in
part on the court’s determination that capital gains real-
ized by the plaintiff from the sale of assets constituted
income. Our Supreme Court concluded that ‘‘capital
gains are not income for purposes of modification of
an order for continuing financial support if those gains
do not constitute a steady stream of revenue. This is
true without regard to whether the assets from which
those gains are derived were acquired before or after
the dissolution.’’ Id., 647–48. Underlying this conclusion
was the court’s recognition that, ‘‘[a]t least where, as
is generally the case, capital gains do not represent a
steady stream of revenue, the fact that a party has
enjoyed such gains in a particular year does not provide
a court with an adequate basis for assessing that party’s
long-term financial needs or resources.’’ (Footnote
omitted.) Id., 647. It found persuasive Judge Schaller’s
reasoning expressed in his dissenting opinion in the
Appellate Court, which stated that ‘‘a conversion of an
asset from one form to another does not constitute the
creation of income. Implicit in this conclusion is the
underlying concept that the growth in value of the asset
distributed at dissolution is not income when it is con-
verted to another form. Rather, the growth, and
resulting cash value when converted, simply represents
the accrual in value of that asset itself. In other words,
the category the item falls into, namely, either capital
asset or income, does not change because the asset has
appreciated in value and then is converted as a matter
of form.’’ (Internal quotation marks omitted.) Id.; see
Gay v. Gay, 70 Conn. App. 772, 788–89, 800 A.2d 1231
(2002) (Schaller, J., dissenting).
Each of the cases relied on by the plaintiff is distin-
guishable from the present case. Schorsch and Denley
both involved the conversion of assets awarded in a
dissolution to cash. In the present case, the defendant
is not seeking a portion of the plaintiff’s ownership
interest in CSCE and ISOI but, rather, seeks a portion
of the income stream generated by those ownership
interests, which, pursuant to the terms of the separation
agreement, is required to be included as total income for
the purposes of calculating the plaintiff’s unallocated
support obligation. Gay is likewise inapplicable, given
that it addressed the question of whether capital gains,
which did not constitute a steady stream of revenue,
constituted income for purposes of alimony modifica-
tion. In the present case, the court properly found that
the plaintiff’s income received from CSCE and ISOI was
not a conversion of marital assets and was not excluded
from total income under the parties’ separation agree-
ment. In support of this conclusion, the court found
that the income was ‘‘something more and different
from the original asset, the ‘converted’ asset, interest,
dividends or capital gains.’’ We agree. Accordingly, the
plaintiff’s argument fails.
The plaintiff’s final argument on appeal is one resting
on equitable principles. He maintains that ‘‘the court
should be mindful that the cash assets the plaintiff
invested in CSCE are net, after tax, cash assets that he
has from the property distributed to him as part of his
marital dissolution property settlement and/or yearly
postdissolution postdistribution property settlement
(net, after tax, cash assets after he has made his required
unallocated support payments).’’ He argues that the
general risks accompanying investments ‘‘become com-
pounded if [the] plaintiff is required to give part of his
return to [the] defendant, especially if that is before he
recoups his net, after tax, cash assets utilized in the
investment.’’ He also points to the separation agree-
ment’s provision that ‘‘[c]apital losses, for whatever
purpose, shall not serve as a reduction of a parties’
income,’’ in support of his argument that it is ‘‘unques-
tionably unjust that [the] defendant could be allowed
to sit back, completely insulated from any risk, and
profit while [the] plaintiff is the only one who takes on
any risk with his investments.’’
The plaintiff, recognizing that Dan v. Dan, supra, 315
Conn. 1, is distinct because it involves modification of
alimony, nevertheless contends that the principles and
logic of that decision apply. He points to language from
Dan stating that, ‘‘when the sole change in circum-
stances is an increase in the income of the supporting
spouse, and when the initial award was and continues
to be sufficient to fulfill the intended purpose of that
award, we can conceive of no reason why the supported
spouse, whose marriage to the supporting spouse has
ended and who no longer contributes anything to the
supporting spouse’s income earning efforts, should be
entitled to share in an improved standard of living that
is solely the result of the supporting spouse’s efforts.’’
(Emphasis in original.) Id., 14–15. Our Supreme Court
held that, in the absence of certain exceptional circum-
stances, an increase in a supporting spouse’s income,
standing alone, will not justify the granting of a motion
to modify an alimony award. Id., 4, 10.
The guidance of Dan is inapplicable. The present
case does not involve a party seeking to modify an
alimony award on the basis that the supporting spouse’s
income has increased. Rather, the question in the pres-
ent case is whether the plaintiff’s income from CSCE
and ISOI is includable in the plaintiff’s income for pur-
poses of determining his unallocated support obligation
pursuant to the terms of the separation agreement.
Moreover, ‘‘[i]t is hornbook law that courts do not
rewrite contracts for parties. . . . [A] court simply can-
not disregard the words used by the parties or revise,
add to, or create a new agreement.’’ (Internal quotation
marks omitted.) Hammond v. Hammond, 145 Conn.
App. 607, 612–13, 76 A.3d 688 (2013). As the trial court
stated in the present case, ‘‘[the] plaintiff may have
been under a great deal of pressure to settle, and he
may not now like the deal he struck with [the] defendant
over [five] years ago, but she is entitled to the benefit
of her bargain. The court cannot and will not undo or
rewrite their agreement with the benefit of hindsight.’’
We conclude that the court properly determined that,
pursuant to the separation agreement, the plaintiff’s
income received from CSCE and ISOI was required to
be included in the plaintiff’s total income for purposes
of calculating his unallocated support obligation.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Section 8 of the separation agreement provides in relevant part: ‘‘Unallo-
cated Support: The plaintiff husband shall pay the defendant wife unallocated
support per the following:
• For the time period commencing on the date of Judgment and continuing
until 8/11/12, the plaintiff shall pay the following:
i. An amount equal to 38% of his gross base income in a manner as
defined infra.
ii. An amount equivalent to 38% of his quarterly bonuses payable as
described infra.
• For the time period commencing on 8/11/12 and continuing until 5/11/21,
the plaintiff shall pay the following:
i. An amount equal to 32.5% of his gross base income payable as
described infra.
ii. An amount equivalent to 32.5% of his quarterly bonuses payable upon
receipt as described infra.
• For the time period commencing on 5/11/21 and continuing until March
11, 2022, the plaintiff shall pay the following:
i. 25% of his base bi-weekly gross income payable as set forth infra.
ii. 25% of his quarterly gross bonuses payable as described infra.
• For federal and state income tax purposes, the unallocated support shall
be deductible to the plaintiff and included as income for the defendant.
• Income for purposes of this calculation shall be the parties’ respective
‘total income’ that has historically been listed on line 22 (or the equivalent)
of their joint 1040 federal tax returns. This shall include all employment,
business, partnership, consulting or real estate income, whether received
in cash or not, but shall specifically exclude all interest, dividend and
capital gains income realized from assets divided as part of the property
distribution component of this dissolution Judgment and any income
received by the plaintiff husband as the result of patents or inventions
which he has created and obtained. Capital losses, for whatever purpose,
shall not serve as a reduction of a parties’ income. By way of example,
if the numbers contained on the parties’ joint 2008 return were used as
part of his calculus, the plaintiff’s unallocated support obligation would
be based on $1,205,113.00 in income (the amount listed on line 22
($1,216,295,00) plus capital loss ($3,000.00) minus interest $11,527.00)
minus ordinary dividends ($2,655.00)). In the event that the plaintiff’s
employment income is replaced or supplemented by disability insurance
payments, those disability insurance payments shall be considered income
for purposes of the plaintiff’s support obligation(s). This disability provi-
sion shall not prevent the plaintiff from seeking a modification of the
support orders.
• In the event that the plaintiff husband does not receive a bonus in any
year in which he has a support obligation, and has received two bonuses
in either the immediately preceding or immediately subsequent year, the
plaintiff agrees to include one of said bonuses in each year for purposes
of establishing and calculating his support obligation(s).
• The plaintiff husband shall take no action for purposes of defeating the
defendant wife’s unallocated support, and, shall take no action to reduce,
divert, or defer income or increase business expenses or deductions for
the purpose of reducing his support obligation to the defendant wife
except in the ordinary and reasonable course of business. Without limita-
tion, except as aforestated, items which are taxable to the plaintiff husband
because he receives a benefit therefrom shall be included, to the extent
they are taxable, for purposes of determining his income.
• For so long as the plaintiff husband has a support obligation hereunder,
the parties shall exchange complete individual year-end pay stubs and
complete state and federal tax returns (including all schedules, W2, K1
and 1099 forms and the like) that the parties file individually or that is
filed by any entity in which the parties’ possess an ownership interest on
a yearly basis within 14 days of filing.
• The unallocated order shall terminate upon the death of either party and
shall terminate upon the remarriage of the defendant wife whereupon the
parties shall determine the amount of child support to be paid by the
plaintiff husband to the defendant wife for the support of each of the
minor children until each child attains the age of 18, graduates from high
school, whichever later occurs, but in no event beyond age 19. In the
event they are unable to agree, the amount of such child support payments
shall be determined by a court of competent jurisdiction. Said amount
shall be paid retroactive to the date of the termination of unallocated
alimony and child support. The award shall be further be subject to
modifications, suspensions or termination pursuant to Conn. Gen. Statute
Sec. 46b-86(b), in the event the defendant cohabitates as contemplated
by the statute and its attending decisional law.
• The plaintiff’s unallocated obligation shall have a twelve year term and
shall be non-modifiable as to duration. The term shall commence on the
date of Judgment and shall terminate on the twelve year anniversary of
that date. The plaintiff shall pay his obligation on a weekly or biweekly
basis, via direct deposit. Historically, the plaintiff has been paid by way
of a weekly/biweekly draw and periodic bonuses. The defendant shall be
paid her percentage share of the plaintiff’s gross income at the time the
income is received by the plaintiff. In other words, the defendant shall
receive a percentage of the draw as well as a percentage of any bonus
payment. All payments shall be received by the defendant wife within
seven days of receipt of said compensation by the plaintiff husband.
• The defendant wife shall have a safe harbor to earn up to $50,000.00 per
year before the plaintiff husband shall have the right to file a motion for
downward modification of his support obligation.
***
• The plaintiff husband shall provide wife with copies of his quarterly pay
statements for the period ending March 30th, June 30th, September 30th
and December 31st each year, all W-2’s, K-1’s, 1099’s from the entities
which employ him upon receipt as soon as they are available. The defen-
dant wife shall contemporaneously provide copies of her pay stubs to
the plaintiff husband on a quarterly basis. The parties shall review their
financial information on or before March 31st or sooner availability of
records each year to verify that the plaintiff husband paid alimony in
accordance with this Agreement. The parties agree that an accountant
designated by the defendant wife, shall audit, at the wife’s expense, the
above documents to determine if the defendant wife has received the
monies due her from the plaintiff husband in accordance with the terms
of this Agreement. If the plaintiff husband disagrees with the defendant
wife’s auditor, he shall have the right to choose his own auditor to verify
the amount of alimony payable, at his expense.’’
2
The plaintiff’s counsel asked the plaintiff: ‘‘And we’ve described in some
detail the definition of income. And that would be what you’ve historically
listed on line 22 or the equivalent on your joint 1040 tax returns; and that’s
all your employment, business, partnership, consulting, or real estate
income, no matter how—what form that comes in. And—but it will exclude
any interest, dividends, gains that you receive from assets as part of this
property settlement. And it will also not include any income received as a
result of patents and inventions which you have created and obtained.
Correct?’’ The plaintiff responded: ‘‘Yes.’’
3
Although both parties testified, the defendant objected to questioning
regarding the plaintiff’s understanding of the meaning of the word ‘‘histori-
cal,’’ as used in the income definition provision of the separation agreement.
The court sustained the objection on the basis that it had not yet found
that the language of the separation agreement was unclear. The court took
judicial notice, however, of the March 11, 2010 canvass before Judge Boland.
4
The trial court identified CSCE as Constitution East Surgical Center and
noted that it previously had been known as Constitution Eye Surgical Center.
The plaintiff, in his appellate brief, identifies the entity as Constitution
Surgery Center East, and we use that name for purposes of this opinion.
5
The plaintiff also had argued that inclusion of CSCE and ISOI income
would result in ‘‘double-dipping,’’ in that he had used assets awarded to
him in the separation agreement to purchase his interests in CSCE and ISOI
and that including income from those interests to calculate the unallocated
support would be counting the same basis twice. The court rejected this
argument, stating: ‘‘This would be so if [the] defendant claimed a portion
of the equity [the] plaintiff holds in these companies. She does not. Her
claim is only to the partnership income they generate. This is a new, separate
basis from the asset awarded to [the] plaintiff at the time of the dissolution
or purchased by him with such assets afterward.’’
6
The plaintiff also argues that there was never a ‘‘meeting of the minds’’
regarding § 8 of the separation agreement. He emphasizes his testimony,
which he describes as ‘‘undoubtedly credible,’’ that he ‘‘believed the term
‘historically’ in § 8 of the agreement referred to income from the time the
parties were married, which consisted substantially of his biweekly salary
and quarterly bonuses.’’ We conclude that this argument, that there was
never a meeting of the minds, is inapposite. ‘‘The essence of [a stipulated]
judgment is that the parties to the litigation have voluntarily entered into
an agreement setting their dispute or disputes at rest and that, upon this
agreement, the court has entered judgment conforming to the terms of the
agreement. . . . It necessarily follows that if the judgment conforms to the
stipulation it cannot be altered or set aside without the consent of all the
parties, unless it is shown that the stipulation was obtained by fraud, accident
or mistake. . . . For a judgment by consent is just as conclusive as one
rendered upon controverted facts.’’ (Internal quotation marks omitted.) Dou-
gan v. Dougan, 301 Conn. 361, 368–69, 21 A.3d 791 (2011). The plaintiff never
filed a motion to open and vacate the dissolution judgment. Cf. Magowan
v. Magowan, 73 Conn. App. 733, 735–37, 812 A.2d 30 (2002), cert. denied,
262 Conn. 934, 815 A.2d 134 (2003).
Moreover, the plaintiff was represented by counsel at the time of the
separation agreement’s negotiation, he executed the lengthy and detailed
agreement, he was canvassed by his counsel regarding the terms of that
agreement, and the court, after finding it fair and equitable, incorporated
the terms of it into the dissolution judgment. Thus, his argument that an
enforceable contract did not exist is unconvincing. See Tedesco v. Agolli,
Superior Court, judicial district of Waterbury, Docket No. CV-XX-XXXXXXX-S
(June 21, 2016) (‘‘[w]hen an agreement is reduced to writing and signed by
all parties, the agreement itself is substantial evidence that a meeting of the
minds has occurred’’) (reprinted at 182 Conn. App. 294, 308, 189 A.3d 676),
aff’d, 182 Conn. App. 291, 308, 189 A.3d 672, cert. denied, 330 Conn. 905,
192 A.3d 427 (2018).
Lastly, the court credited the defendant’s testimony as to the intention
of the parties and, thus, implicitly found a mutual understanding of the
relevant terms as articulated by the defendant, a finding the plaintiff has
not demonstrated is clearly erroneous. See M.J. Daly & Sons, Inc. v. West
Haven, 66 Conn. App. 41, 48, 783 A.2d 1138 (‘‘[w]hether a meeting of the
minds has occurred is a factual determination’’), cert. denied, 258 Conn.
944, 786 A.2d 430 (2001).
7
The plaintiff contends that future changes in IRS Form 1040 were fully
addressed by the reference in § 8 to ‘‘line 22 (or the equivalent) . . . .’’
(Emphasis added.) Thus, according to the plaintiff, the court failed to give
effect to the clear meaning of the word ‘‘historically’’ and, in doing so,
rendered it superfluous. He maintains that if the defendant’s interpretation
of the parties’ intent was correct, ‘‘it would have been much easier to simply
draft the agreement with the following language, ‘Income for the purposes
of this calculation is what the IRS requires on line 22 (or the equivalent)
of a joint 1040 tax return.’’ We are not persuaded that the court erred in
determining that both phrases ‘‘historically been listed’’ and ‘‘or the equiva-
lent’’ were necessary to explicate the separation agreement’s definition of
total income. The word ‘‘historically’’ ensures that the categories of income
that comprised line 22 at the time of the dissolution judgment would remain
the categories of income from which the plaintiff’s future support obligation
would be calculated. The phrase ‘‘or the equivalent’’ accounts for the possibil-
ity that, at some point in time, the IRS may alter Form 1040 such that line
22 is renumbered.
8
During the hearing on March 30, 2015, the following exchange occurred
with respect to the exclusion for patent income:
‘‘The Court: And you didn’t earn any patent income until after the dissolu-
tion; is that correct?
‘‘[The Plaintiff]: I still haven’t earned any patent income.
‘‘The Court: If your definition—
‘‘[The Plaintiff]: So, I’ve never earned any patent income.
‘‘The Court: Understood. But the demarcation here is the line drawn by
the dissolution.
‘‘[The Plaintiff]: Yes.
‘‘The Court: Prior to the dissolution, you made no patent income?
‘‘[The Plaintiff]: Right.
‘‘The Court: At the time of the dissolution, you excluded patent income?
‘‘[The Plaintiff]: Right.
‘‘The Court: So, patent income would never have been included in the
historical category—
‘‘[The Plaintiff]: Right.
‘‘The Court: —to derive line 22. If that’s the case, why did you need the
page 7 exclusion if historically you had never earned any patent income?
‘‘[The Plaintiff]: Well, I think the reason is because at the time, throughout
the years, I had been thinking about some devices and actually went to a
company on a couple of occasions with device ideas for patenting, and it
never came to fruition.
‘‘The Court: I understand that . . . [b]ut my question is, if the definition
of historical never included patent income because you hadn’t earned any
patent income—
‘‘[The Plaintiff]: Right.
‘‘The Court: —why did you need this second exclusion I’ll call it because
by your definition, if I’m understanding you correctly, historically would
exclude patent income and yet you included a second sentence to specifically
exclude patent income.
‘‘[The Plaintiff]: Well, if it was put to me that way, I probably wouldn’t
have requested it, but what happened was that while we were marking—
going through this, I had mentioned to my attorney that, you know, I kind
of have an inventive mind and I think at some point, I might do this, am I
protected here, and so she added it in, and I think that they didn’t have any
problem with that, so it never came up. But if you put it to me as well, you
know, patent income, it’s not part of your historic so it wouldn’t make a
difference, then I probably wouldn’t—it wouldn’t have mattered to me.’’
9
The testimony before the court included the defendant’s testimony that
‘‘historically defined what was required to be listed as income on the 1040
tax return.’’ The plaintiff, in contrast, testified as follows: ‘‘It was my under-
standing that my obligation to pay unallocated support was based upon my
historical income. Basically, all the income that I had earned in the past
while we were married, it says here on the joint 1040 federal tax returns
and to me, my interpretation is we were married and so the money that I
had earned during those years was filed on our joint returns.’’ The plaintiff
further testified: ‘‘So, at the time of the divorce, I had been married for
somewhere around [twenty] years, and I had only received one form of
income—well, one basic form of income and that was I received biweekly
paychecks and quarterly bonuses. So, at the time of the divorce, that was
my interpretation of my historical income.’’