Parisi v. Parisi

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ROBERT J. PARISI v. KATHLEEN M. PARISI
(SC 19123)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald and Espinosa, Js.
Argued October 24, 2014—officially released January 27, 2015
Kenneth J. Bartschi, with whom were Dana M.
Hrelic and, on the brief, M. Caitlin S. Anderson, for
the appellant (defendant).
H. Daniel Murphy, for the appellee (plaintiff).
Opinion
ROGERS, C. J. This case addresses whether a provi-
sion in a separation agreement is clear and unambigu-
ous and, relatedly, whether a party may be held in
contempt for violating that agreement. The defendant,
Kathleen M. Parisi,1 appeals from the judgment of the
Appellate Court affirming the trial court’s denial of her
postjudgment motion for contempt, order and clarifica-
tion, by which she had sought to compel the plaintiff,
Robert J. Parisi, to satisfy, in a particular manner, a
financial obligation set forth in the parties’ separation
agreement. The trial court denied the defendant’s
request to hold the plaintiff in contempt, citing the lack
of evidence of his wilful noncompliance. It further
denied her requests to clarify the agreement or to issue
an order of compliance, after concluding that the
agreement was ‘‘clear and concise . . . .’’ Thereafter,
the Appellate Court upheld both aspects of the trial
court’s ruling.2 Parisi v. Parisi, 140 Conn. App. 81, 83,
58 A.3d 327 (2013). The defendant claims that the trial
court improperly denied her motion because the plain-
tiff’s proposed satisfaction of the financial obligation
was impermissible under the terms of the agreement
and, therefore, his proposal constituted a wilful failure
to comply with the agreement. We conclude that the
trial court properly refused to hold the plaintiff in con-
tempt. We disagree with the trial court, however, that
the agreement is clear. Accordingly, we reverse in part
the judgment of the Appellate Court and remand the
matter to the trial court for a hearing at which the intent
of the parties and the meaning of the term in question
must be determined, after which a concomitant order
of compliance should be entered.
The following procedural history is relevant to the
appeal. The parties’ marriage was dissolved on Novem-
ber 19, 2010. The trial court incorporated into the judg-
ment of dissolution the parties’ November 11, 2010
separation agreement, which the parties had negotiated
over the course of several months with the assistance
of counsel. Under the heading of ‘‘Alimony and Child
Support,’’ the agreement provided, in relevant part, that
‘‘[t]here shall be no periodic alimony payable or
requested from the [plaintiff] to the [defendant] or from
the [defendant] to the [plaintiff]. In lieu of periodic
alimony the [plaintiff] shall pay the [defendant] nontax-
able and nondeductible alimony (an ‘alimony buyout’)
of $300,000 from his share of the marital estate on or
before the date [that] [j]udgment for dissolution of the
marriage is entered.’’3 In an asset spreadsheet prepared
by the plaintiff and attached to his financial affidavit,
which together were provided to the defendant and
filed with the court on the day of the dissolution, three
401(k) accounts belonging to the plaintiff with balances
totaling $300,000 are listed under the caption, ‘‘Buy-out
Amount (in Asset-Property) in Lieu of Alimony.’’
The separation agreement also includes a merger
clause stating that the parties ‘‘have incorporated in
this agreement their entire understanding, and no oral
agreement or prior written matter extrinsic to this
agreement shall have any force or effect. The parties
agree that each is not relying upon any representations
other than those expressly set forth herein.’’ Other parts
of the agreement, however, make reference to the plain-
tiff’s ‘‘financial affidavit filed with the court when judg-
ment is entered,’’ although the alimony buyout
provision does not.
On December 14, 2010, the defendant filed a motion
for contempt, order and clarification.4 Therein, she
quoted the alimony buyout provision from the separa-
tion agreement and stated that the plaintiff had failed
to comply with it ‘‘in wilful violation of [the trial] court’s
orders.’’ The defendant raised several other claims in
the motion regarding the plaintiff’s alleged noncompli-
ance with different and unrelated terms of the separa-
tion agreement. She requested, inter alia, that the court
clarify the agreement, find the plaintiff in contempt and
sanction him monetarily for his wilful violation of the
agreement, and order the plaintiff to comply with the
agreement by paying the defendant ‘‘$300,000, nontax-
able and nondeductible,’’ within fourteen days.
The plaintiff objected to the defendant’s motion,
claiming, in relevant part, that he had been ‘‘working
assiduously to complete the [alimony] buyout’’ contem-
plated by the agreement. He noted that the ‘‘separation
agreement [did] not specify from which assets’’ the
buyout should be effected, but ‘‘merely indicates that
[it] will be nontaxable to the defendant and nondeduct-
ible to the plaintiff, as alimony otherwise would be
treated pursuant to the laws of federal taxation.’’ The
plaintiff contended that the transfer he had proposed,
itself, would be nontaxable to the defendant, but
allowed that ‘‘there may be tax consequences following
said transfer depending on the type of asset exchanged
(e.g., stocks and bonds).’’ He claimed further that the
agreement did not require him to liquidate assets prior
to transferring them to the defendant.
A hearing on the defendant’s motion was held on
January 13, 2011. At the hearing, when questioned by
her attorney, the defendant testified5 that she had not
received the $300,000 payment contemplated by the
separation agreement, and that she had not heard any-
thing from the plaintiff about it. On cross-examination,
she acknowledged that she had heard, through counsel,
that the plaintiff intended to pay the $300,000 through
a transfer of his retirement assets, but indicated that
she considered that approach unsatisfactory and con-
trary to the agreement. In the defendant’s view,
although the agreement did not require payment to be
made in cash, that was how she had interpreted it,
by implication, because of the specification that it be
nontaxable. The defendant agreed that the plaintiff did
not have $300,000 in cash available to him, but con-
tended that he should have liquidated his investments
in order to obtain the required cash and borne the tax
consequences of that liquidation himself.
The defendant agreed further that she had received a
copy of the plaintiff’s financial affidavit and the attached
spreadsheet on November 19, 2010, before the parties’
marriage was dissolved, that the spreadsheet indicated
that payment of the $300,000 would be made from retire-
ment assets and that she had had a chance to read those
documents. She claimed, however, that the spreadsheet
differed from the one that was available to her when
she had signed the separation agreement on November
11, 2010.6 The defendant also testified that she had no
idea what the tax consequences of the transfer of a
retirement asset might be, but that she would not have
agreed to any transfer that would result in her having
to bear any such consequences.7
On January 14, 2011, the trial court issued an order
summarily denying the defendant’s motion for con-
tempt, order and clarification. On February 3, 2011, the
defendant appealed from the denial to the Appellate
Court. The trial court, in response to the Appellate
Court’s order; see Practice Book § 64-1; produced a
brief memorandum of decision dated August 8, 2011,
explicating the January 14, 2011 order. After noting that
the parties, at the time of the dissolution, were well
represented by counsel and, after being canvassed, had
expressed no reservations about the terms of the sepa-
ration agreement, the court stated the following: ‘‘The
plaintiff did not have $300,000 in cash available to him
and [the defendant] was aware of it. . . . The court
finds that the [defendant] was aware of all aspects of
the agreement and that she was thoroughly canvassed.
At the contempt hearing all aspects of the agreement
were explored and there was no evidence of any wilful
conduct that would warrant a finding of contempt. The
agreement is clear and concise and needs no clarifi-
cation.’’8
In a unanimous decision, the Appellate Court
affirmed the trial court’s denial of the defendant’s
motion for contempt. Parisi v. Parisi, supra, 140 Conn.
App. 86–87. The Appellate Court concluded that the
trial court did not abuse its discretion by declining to
hold the plaintiff in contempt, because the evidence
presented did not compel a finding that the plaintiff
wilfully had violated the parties’ agreement.9 Id., 86.
The Appellate Court also rejected the defendant’s con-
tention that the trial court had misconstrued the separa-
tion agreement as clearly and concisely permitting the
plaintiff’s proposed satisfaction of the alimony buyout
provision at issue through a transfer of his retirement
assets.10 Id., 87. According to the Appellate Court, the
defendant had not provided ‘‘a reasoned analysis . . .
of the wording of the separation agreement,’’ but merely
had expressed dissatisfaction with the trial court’s inter-
pretation of it.11 Id. The Appellate Court concluded fur-
ther that, although the trial court had the authority
to order the plaintiff to comply with the terms of the
separation agreement, it did not abuse its discretion
in failing to do so because it reasonably could have
determined that an order of compliance was not neces-
sary. Id., 88–89. Finally, the Appellate Court declined
to issue any order of compliance itself. Id., 89. This
appeal followed.
The defendant claims that the Appellate Court, like
the trial court, improperly failed to consider the mean-
ing and requirements of the alimony buyout provision
of the parties’ separation agreement. According to the
defendant, that inquiry was a necessary prerequisite
to determining whether the plaintiff should be held
in contempt for a wilful failure to comply with the
separation agreement, and whether an order of compli-
ance should issue. The defendant contends further that
the plain language of the separation agreement makes
it clear that the plaintiff’s proposed satisfaction of the
alimony buyout provision was a violation of the terms
of that provision. In any event, she contends, the trial
court should have entered an order of compliance so
she could obtain the payment she was due. The plaintiff
claims, to the contrary, that there was no evidence
showing that he wilfully had failed to comply with the
separation agreement. According to the plaintiff,
because the trial court found the wilfulness element of
contempt unsatisfied, the clarity or nonclarity of the
agreement is of no import in regard to the issue of
contempt. He contends, in any event, that the trial court
correctly construed the agreement as permitting satis-
faction of the alimony buyout provision via a transfer
of his retirement assets, and that neither the trial court
nor the Appellate Court was required to issue an order
of compliance. We conclude that the trial court properly
declined to hold the plaintiff in contempt, but for a
different reason, namely, because the alimony buyout
provision is ambiguous. We conclude further, therefore,
that the court, in denying clarification, improperly held
that the agreement was ‘‘clear and concise . . . .’’ For
that reason, the trial court abused its discretion by
failing to undertake the factual inquiry necessary to
clarify the meaning of the alimony buyout provision
and, thereafter, to issue an appropriate order of com-
pliance.
We begin with general principles and the applicable
standards of review. ‘‘Contempt is a disobedience to
the rules and orders of a court which has power to
punish for such an offense.’’ (Internal quotation marks
omitted.) In re Leah S., 284 Conn. 685, 692, 935 A.2d
1021 (2007). A contempt judgment cannot stand when,
inter alia, the order a contemnor is held to have violated
is vague and indefinite, or when ‘‘the contemnor,
through no fault of his own, was unable to obey the
court’s order.’’ (Internal quotation marks omitted.) Id.Consistent with the foregoing, when we review such
a judgment, we first consider ‘‘the threshold question
of whether the underlying order constituted a court
order that was sufficiently clear and unambiguous so
as to support a judgment of contempt. See Blaydes v.
Blaydes, 187 Conn. 464, 467, 446 A.2d 825 (1982) (civil
contempt may be founded only upon clear and unambig-
uous court order); Dowd v. Dowd, 96 Conn. App. 75,
79, 899 A.2d 76 (first inquiry on review of judgment of
contempt for failure to abide by separation agreement
was whether agreement was clear and unambiguous),
cert. denied, 280 Conn. 907, 907 A.2d 89 (2006). This is
a legal inquiry subject to de novo review.’’ In re Leah
S., supra, 284 Conn. 693.12
‘‘Second, if we conclude that the underlying court
order was sufficiently clear and unambiguous, we must
then determine whether the trial court abused its discre-
tion in issuing, or refusing to issue, a judgment of con-
tempt, which includes a review of the trial court’s
determination of whether the violation was wilful or
excused by a good faith dispute or misunderstanding.
See Ramin v. Ramin, 281 Conn. 324, 336, 915 A.2d 790(2007); Eldridge v. Eldridge, 244 Conn. 523, 526–27,
529, 710 A.2d 757 (1998); see also McGuire v. McGuire,
102 Conn. App. 79, 82, 924 A.2d 886 (2007) ([a] finding
of contempt is a question of fact, and our standard of
review is to determine whether the court abused its
discretion in failing to find that the actions or inactions
of the [party] were in contempt of a court order . . .).’’
(Internal quotation marks omitted.) In re Leah S., supra,284 Conn. 693–94.
Regarding the defendant’s additional request for an
order of compliance, it is well established that after a
judgment has been rendered, a trial court has inherent
authority and continuing jurisdiction to ‘‘fashion a rem-
edy appropriate to the vindication of [that] . . . judg-
ment . . . .’’ (Internal quotation marks omitted.) Bauer
v. Bauer, 308 Conn. 124, 130, 60 A.3d 950 (2013). Accord-
ingly, when there is an ambiguity in the language of a
judgment, the court may ‘‘effectuate its prior [judgment]
. . . by interpreting [the] ambiguous judgment and
entering orders to effectuate the judgment as interpre-
ted’’; (internal quotation marks omitted) id.; so long as
that interpretation is merely a clarification, and not an
alteration, of the original judgment. Id., 130–31. The
court’s inherent authority ‘‘to effectuate its prior judg-
ments, either by summarily ordering compliance with
a clear judgment or by interpreting an ambiguous judg-
ment and entering orders to effectuate the judgment as
interpreted,’’ is not dependent upon a predicate finding
that a noncompliant party is in contempt. AvalonBay
Communities, Inc. v. Plan & Zoning Commission, 260
Conn. 232, 246, 796 A.2d 1164 (2002). Finally, as a gen-
eral matter, the trial court has wide discretion and broad
equitable power ‘‘to fashion relief in the infinite variety
of circumstances which arise out of the dissolution of
a marriage.’’ (Internal quotation marks omitted.) Passa-
mano v. Passamano, 228 Conn. 85, 95, 634 A.2d 891(1993).
We begin, pursuant to the direction of In re Leah
S., supra, 284 Conn. 693, by considering whether the
parties’ separation agreement is sufficiently clear so as
to justify a finding of contempt for the plaintiff’s alleged
noncompliance. We conclude that it is not, and, there-
fore, that the trial court properly declined to hold the
plaintiff in contempt.13
‘‘Civil contempt is committed when a person violates
an order of court which requires that person in specific
and definite language to do or refrain from doing an
act or series of acts.’’ (Emphasis in original; internal
quotation marks omitted.) Id., 695. A ‘‘sufficiently clear
and unambiguous [order] is a necessary prerequisite for
a finding of contempt because [t]he contempt remedy is
particularly harsh . . . and may be founded solely
upon some clear and express direction of the court.’’
(Emphasis in original; internal quotation marks omit-
ted.) Id. ‘‘It is also logically sound that a person must not
be found in contempt of a court order when ambiguity
either renders compliance with the order impossible,
because it is not clear enough to put a reasonable person
on notice of what is required for compliance, or makes
the order susceptible to a court’s arbitrary interpreta-
tion of whether a party is in compliance with the order.’’
Id. ‘‘[W]here parties under a mandatory judgment could
be subjected to punishment as contemnors for violating
its provisions, such punishment should not rest upon
implication or conjecture, but the language declaring
such rights should be clear, or imposing burdens spe-
cific and unequivocal so that the parties may not be
misled thereby.’’ (Internal quotation marks omitted.)
Blaydes v. Blaydes, supra, 187 Conn. 468.
The order at issue is the parties’ separation
agreement, which was incorporated into the court’s
judgment. ‘‘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 contract 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.’’ (Citations
omitted; emphasis in original; internal quotation marks
omitted.) Isham v. Isham, 292 Conn. 170, 180–81, 972
A.2d 228 (2009).
‘‘A contract is unambiguous when its language is clear
and conveys a definite and precise intent. . . . The
court will not torture words to impart ambiguity where
ordinary meaning leaves no room for ambiguity. . . .
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. . . .
‘‘In contrast, a contract is ambiguous if the intent of
the parties is not clear and certain from the language
of the contract itself. . . . [A]ny ambiguity in a contract
must emanate from the language used by the parties.
. . . The 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. . . . If the language of the contract is suscepti-
ble to more than one reasonable interpretation, the
contract is ambiguous.’’ (Citations omitted; internal
quotation marks omitted.) Cruz v. Visual Perceptions,
LLC, 311 Conn. 93, 102–103, 84 A.3d 828 (2014).
Applying the foregoing principles to the present mat-
ter, we conclude that the alimony buyout provision of
the parties’ separation agreement is ambiguous, thereby
precluding a finding of contempt. To begin, it is unclear
whether the payment at issue was intended to be in the
nature of a property distribution or lump sum alimony.
The payment is referred to variously as ‘‘alimony’’ or
an ‘‘alimony buyout,’’ and it is stated to be in lieu of
‘‘periodic alimony,’’ but not in lieu of ‘‘alimony’’ per se.
Furthermore, it is described as being ‘‘nontaxable’’ to
the recipient and ‘‘nondeductible,’’ to the payor, which
alimony typically is not. The nature of the payment, if
it were clear, might have been instructive as to what
the parties intended regarding the manner of payment
because, as the defendant contends, alimony is intended
to provide the payee spouse ongoing support and, as
such, ought to be readily accessible. Additionally, it
is unclear whether the parties, in specifying that the
payment be ‘‘nontaxable and nondeductible,’’ were con-
templating, as the plaintiff claims, that only the initial
transfer itself meet those qualifications, or rather, as
the defendant suggests, the qualifications apply more
broadly to include her subsequent liquidation of the
funds for her use. Moreover, although the plaintiff, by
his November 19, 2010 affidavit, indicated, in the
attached spreadsheet, that he would satisfy the provi-
sion at issue via a transfer of his retirement funds, the
defendant may not have had that document available
to her when she signed the agreement one week earlier,
the agreement itself provides that extrinsic documents
shall have no force or effect, and the alimony buyout
provision, unlike other portions of the agreement,
makes no reference to the affidavit. In short, although
the affidavit may be peripherally relevant to the issue
of the parties’ intent, its import is not, as the trial court
suggested, entirely clear. Finally, as to what forms of
payment were acceptable for the satisfaction of the
alimony buyout provision, the agreement is completely
silent. Taken together, the foregoing factors render the
parties’ agreement unclear as to the issue at hand.14
In sum, each of the parties has set forth a plausible
construction of the alimony buyout provision, with both
constructions having bases in the language used in the
separation agreement. We conclude, therefore, that the
agreement is not, as the trial court held, ‘‘clear and
concise,’’ but rather, is ambiguous, with its meaning
presenting a question of fact that the trial court should
have fully considered and resolved. See Isham v. Isham,
supra, 292 Conn. 184 (‘‘when language of agreement is
susceptible to more than one reasonable interpretation,
agreement is ambiguous’’). ‘‘It is elementary that neither
this court nor the Appellate Court can find facts in the
first instance. . . . [A]n appellate court cannot find
facts or draw conclusions from primary facts found,
but may only review such findings to see whether they
might be legally, logically and reasonably found . . . .’’
(Citation omitted; emphasis in original; internal quota-
tion marks omitted.) Cruz v. Visual Perceptions, LLC,
supra, 311 Conn. 106. Accordingly, this case must be
remanded to the trial court to resolve the ambiguity in
the parties’ separation agreement through a determina-
tion of their intent after consideration of all available
extrinsic evidence and the circumstances surrounding
the entering of the agreement. See Marshall v. Marshall,
151 Conn. App. 638, 648, 97 A.3d 1 (2014) (remanding
case with ambiguous alimony provision in separation
agreement to trial court to determine intent of parties
and, accordingly, extent of arrearage).
We next consider whether the trial court abused its
discretion by declining to issue an order of compliance
as the defendant had requested. ‘‘Judicial discretion is
always a legal discretion, exercised according to the
recognized principles of equity. . . . The action of the
trial court is not to be disturbed unless it abused its
legal discretion, and [i]n determining this the unques-
tioned rule is that great weight is due to the action of
the trial court and every reasonable presumption should
be given in favor of its correctness. . . . In determining
whether there has been an abuse of discretion, the
ultimate issue is whether the court could reasonably
conclude as it did.’’ (Internal quotation marks omitted.)
Eldridge v. Eldridge, supra, 244 Conn. 534. As we set
forth previously herein, the parties’ agreement and,
therefore, the trial court’s judgment incorporating it,
was ambiguous, requiring interpretation and clarifica-
tion by the trial court. Two months after the parties’
marriage had been dissolved and the payment at issue
was due to have been made, the parties remained in
limbo due to the ambiguity of the agreement. Under
the circumstances, we conclude that the trial court’s
failure to clarify the agreement, and to enter a concomi-
tant order of compliance, was an abuse of discretion.
On remand, therefore, once the meaning of the
agreement has been clarified, an accompanying order
of compliance should be issued.
The judgment of the Appellate Court is reversed in
part and the case is remanded to that court with direc-
tion to remand the case to the trial court for further
proceedings consistent with this opinion.
In this opinion the other justices concurred.
1
We note that various documents were filed in the trial court listing the
defendant as Kathleen F. Parisi. For purposes of convenience, we refer to
the defendant in the same manner as did the trial court.
2
We granted the defendant’s request for certification to appeal, limited
to the following question: ‘‘Did the Appellate Court properly conclude that
the evidence did not support a finding that the plaintiff wilfully failed to
satisfy the terms of the alimony buyout provision by attempting to pay his
obligations with assets worth less than the agreed upon amount?’’ Parisi
v. Parisi, 308 Conn. 916, 917, 64 A.3d 329 (2013). Upon further review of
the record and briefs, we reframe the certified question to conform to the
issue actually presented: ‘‘Did the Appellate Court properly uphold the trial
court’s denial of the defendant’s postjudgment motion for contempt, order
and clarification?’’ See Hartford v. McKeever, 314 Conn. 255, 259 n.2, 101
A.3d 229 (2014) (court may reformulate issue to conform to issue actu-
ally presented).
3
We shall refer to this provision of the parties’ separation agreement
hereinafter as the ‘‘alimony buyout provision.’’
4
The motion thereafter was supplemented with a document captioned,
‘‘Claims for Relief re: Defendant’s Motion for Contempt, Order, and Clarifica-
tion, Post Judgment dated 12/13/10,’’ wherein the defendant detailed the
remedies that she sought.
5
The defendant was the only witness to testify at the hearing.
6
The plaintiff’s November 9, 2010 and November 19, 2010 financial affida-
vits are part of the record. The spreadsheet attached to the November 9,
2010 affidavit, unlike the spreadsheet attached to the November 19, 2010
affidavit, does not indicate that the plaintiff’s 401(k) accounts would be
used to satisfy the alimony buyout provision.
7
In her appellate brief to this court, the defendant contends that, because
she was only forty-seven years old at the time of the dissolution, if she
attempted to access funds from a retirement asset, she would have been
subject to substantial early withdrawal penalties as well as income taxation
on the amount withdrawn.
8
The defendant filed a motion for articulation of the trial court’s August
8, 2011 memorandum of decision requesting that the court articulate its
decision as to the other matters raised in her motion for contempt, order
and clarification. The trial court denied the motion for articulation. The
Appellate Court thereafter granted the defendant’s motion for review of the
trial court’s ruling, but denied the relief requested therein.
9
The Appellate Court cited the evidence that the plaintiff had offered to
satisfy the payment with retirement assets and ‘‘a lack of evidence that his
motive in doing so was to avoid satisfying the full terms of the agreement
. . . .’’ Parisi v. Parisi, supra, 140 Conn. App. 86.
10
We observe that it is unclear whether the trial court in fact interpreted
the agreement in this fashion, because that court did not explain what it
believed the agreement required, but merely described the agreement as
‘‘clear and concise . . . .’’ Alternatively, the court might have agreed with
the defendant that the agreement clearly required a cash payment, but
concluded nevertheless that the plaintiff’s noncompliance was not wilful
because he lacked sufficient cash to make that payment and had endeavored
to satisfy the obligation otherwise.
11
This assertion is not accurate. Many pages of both the defendant’s initial
and reply briefs to the Appellate Court are devoted to an analysis of the
language of the separation agreement.
12
In the present case, as in Dowd v. Dowd, supra, 96 Conn. App. 79, the
court order to be reviewed for clarity consists of the parties’ separation
agreement, which was incorporated into the judgment of dissolution. The
determination of whether contractual language is plain and unambiguous
also is a question of law subject to plenary review on appeal. Cruz v. Visual
Perceptions, LLC, 311 Conn. 93, 101–102, 84 A.3d 828 (2014).
13
We agree with the defendant that the trial court, contrary to In re Leah
S., supra, 284 Conn. 693, improperly considered the issue of the plaintiff’s
wilfulness prior to assessing the clarity of the parties’ separation agreement.
Specifically, the trial court appeared to rely upon the plaintiff’s inability to
satisfy the alimony buyout provision with cash on hand, and the defendant’s
knowledge of that circumstance, to conclude that there was no wilful non-
compliance. See Marshall v. Marshall, 151 Conn. App. 638, 651, 97 A.3d 1(2014) (‘‘[i]nability to pay is a defense to a contempt motion’’ [internal
quotation marks omitted]); see also id., 650 (‘‘To constitute contempt, a
party’s conduct must be wilful. . . . Noncompliance alone will not support
a judgment of contempt.’’ [Internal quotation marks omitted.]). Although
this approach was improper, we nevertheless agree with the trial court’s
ultimate determination that the plaintiff could not be held in contempt
because In re Leah S. requires both a clear order and wilful noncompliance.
Accordingly, the lack of either one is fatal to the defendant’s motion for
contempt.
14
Consulting other portions of the separation agreement provides little
assistance for interpreting the alimony buyout provision. For example, in
a section dealing with student loans, the parties specify with detail which
assets will be applied to satisfy the various loans in question. This suggests,
on the one hand, that if the parties intended that the alimony buyout provision
would be satisfied with particular assets, such as the plaintiff’s 401(k)
accounts, they would have said so clearly. On the other hand, it could be
the case that, where no form of payment is specified, any form of payment
was considered acceptable.