Grogan v. Penza

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GROGAN v. PENZA—CONCURRENCE AND DISSENT
BRIGHT, J., concurring in part and dissenting in part.
Although I agree with the majority’s conclusion in part
II of its opinion regarding the plaintiff’s cross appeal,
I disagree with its conclusion in part I of its opinion
that the parties’ separation agreement (agreement) is
clear and unambiguous regarding the terms of the plain-
tiff’s obligation to pay ‘‘true up’’ alimony to the defen-
dant. Because the trial court based its denial of the
defendant’s motion for contempt solely on its conclu-
sion that the language of the parties’ agreement is clear
and unambiguous, I conclude that the matter should
be remanded to the trial court for factual findings that
are required when an agreement is ambiguous. Further-
more, I conclude that the fact that the agreement is
ambiguous does not prevent the trial court from grant-
ing relief to the defendant, even though it almost cer-
tainly would preclude a finding that the plaintiff is in
contempt. Finally, because the court made no findings
as to whether the plaintiff met his full obligation to
pay true up alimony under the terms of the ambiguous
agreement, I conclude that we are not in a position to
affirm the decision of the trial court on the basis of the
plaintiff’s alternative ground for affirmance. Conse-
quently, I would reverse the court’s judgment denying
the defendant’s motion for contempt, and I would
remand the matter for a new hearing on the motion.
Having reached this conclusion, I would affirm the
court’s judgment denying the plaintiff’s motion for attor-
ney’s fees. Therefore, I concur in part and respectfully
dissent in part.
Because the majority’s holding in part I of its opinion
rests solely on its conclusion that the agreement is
clear and unambiguous, I will focus my analysis on the
language of the agreement and the applicable law to
explain why I disagree with the majority’s conclusion.
As a preliminary matter, I agree with the majority’s
statement as to the applicable law as set forth by our
Supreme Court in Parisi v. Parisi, 315 Conn. 370, 382–
84, 107 A.3d 920 (2015). In my view, three principles of
contract interpretation are particularly relevant to the
resolution of the parties’ dispute. First, the parties’
agreement must be viewed in its entirety, with each
provision read in light of the other provisions, and every
provision given effect if possible to do so. Nation–
Bailey v. Bailey, 316 Conn. 182, 191–92, 112 A.3d 144
(2015). Second, if the language of the contract is suscep-
tible to more than one reasonable interpretation, the
contract is ambiguous. Id. Third, ‘‘[w]e will not construe
a contract’s language in such a way that it would lead
to an absurd result.’’ Welch v. Stonybrook Gardens
Cooperative, Inc., 158 Conn. App. 185, 198, 118 A.3d
675, cert. denied, 318 Conn. 905, 122 A.3d 634 (2015).
In the present case, the parties’ dispute revolves
around § 1.1 of the agreement, in particular the interplay
of that section’s initial foundational paragraph and sub-
section D. Section 1.1 starts by setting forth the parties’
agreement regarding the payment of alimony by the
plaintiff; specifically, it sets forth the basis for the pay-
ment of alimony and a general description of how the
amount of alimony due to the defendant is to be calcu-
lated. It provides in relevant part: ‘‘The alimony pay-
ments detailed below are based on . . . the [plaintiff’s]
‘annual income from employment’ (hereinafter
‘income’) which, for purposes of the alimony formula
herein, is presently defined as Line 1 on [the plaintiff’s]
annual [schedule] K-1 [form] ([K-1]) from McCormick,
Paulding & Huber LLP (‘MPH’).1 The alimony paid by
the [plaintiff] to the [defendant] shall be paid in three
components (monthly payments and quarterly pay-
ments totaling $160,000 based on the first $500,000 of
[the plaintiff’s] income, and a year-end ‘true up’ alimony
payment based on gross income of the [plaintiff]
between $550,000 and $750,000). [The defendant] shall
not be entitled to any alimony on any annual income
of [the plaintiff] in excess of $750,000. Said payments
will be made as follows.’’ (Emphasis added; footnote
added.)
Section 1.1 then sets forth, in subsections A though
D, the timing and methodology for making and calculat-
ing the alimony payments. Subsection D, in relevant
part, provides: ‘‘For the tax year 2014 and thereafter,
[the plaintiff] shall pay ‘true up’ alimony to [the defen-
dant] of 25 [percent] of the amount of [the plaintiff’s]
income between $550,000 and $750,000 as reflected on
Line 1 of [the plaintiff’s] K-1 and 20 [percent] of any
income between $700,000 and $750,000. For example,
if [the plaintiff’s] K-1 for 2014 shows Line 1 income
of $775,000, [the plaintiff] would owe [the defendant]
additional ‘true up’ alimony in the amount of $47,500
. . . .’’
It is undisputed that the plaintiff has paid the defen-
dant the required $160,000 per year in annual alimony.
It also is undisputed that the plaintiff paid the defendant
the proper amount of true up alimony in 2013 and 2014.
Furthermore, had the plaintiff remained a partner at
MPH through the end of 2015, and had MPH continued
to report all of the plaintiff’s employment income on
line 1 of his K-1, as it had during the entire twenty plus
years he was a partner of MPH, it is unlikely that the
parties would have had any dispute over the plaintiff’s
obligation to pay true up alimony.
In 2015 though, the plaintiff resigned from MPH,
effective June 1, and opened a new law firm, Grogan,
Tuccillo & Vanderleeden, LLP (GTV), in which he is an
equity partner. As a result, the plaintiff received two
K-1s in 2015, one from each firm. Furthermore, both
firms reported income, or loss, to the plaintiff on both
line 1, titled ‘‘ordinary business income,’’ and line 4,
titled ‘‘guaranteed payments,’’ of the K-1.2 When the
defendant received the required copies of the plaintiff’s
K-1s, she totaled the amounts on lines 1 and 4 from
both K-1s and determined that the plaintiff had a total
income from employment in 2015 of $741,732. Applying
the formula in § 1.1 D to this amount, the defendant
determined that she was entitled to true up alimony in
the amount of $45,846. When she demanded payment
from the plaintiff, the plaintiff responded that the
$605,000 reported on line 4 of the K-1 issued by MPH
was not income but, rather, was the return of his capital
from the firm upon his departure. The plaintiff informed
the defendant that he was challenging MPH’s treatment
of that payment and asked her not to pursue any claim
for true up alimony until he resolved the issue.
The defendant thereafter filed a motion for contempt,
the denial of which is the subject of this appeal. In
response to the motion for contempt, in addition to
disputing that he had received sufficient employment
income in 2015 to trigger the requirement that he pay
true up alimony, the plaintiff also argued before the
trial court that § 1.1 D of the agreement clearly and
unambiguously limits income for the purpose of true
up alimony to income reported on line 1 of his K-1.
Because the total of the amounts reported on line 1 of
the plaintiff’s two K-1s in 2015 was only $9554, the
plaintiff argued that no true up alimony was due.
In contrast, the defendant argued before the trial
court, in support of her motion for contempt, that the
initial paragraph of § 1.1 clearly and unambiguously
requires that alimony payments to the defendant are
based on the plaintiff’s ‘‘annual income from employ-
ment.’’ She argued that this includes all income that
the plaintiff received as a result of his employment,
regardless of the line of the K-1 used to report the
income. She further argued that the plaintiff’s reliance
on the reference in § 1.1 D to line 1 of the K-1 issued
by MPH was misplaced because the initial paragraph
of § 1.1 makes clear that the parties only intended line
1 of the K-1 issued by MPH to be used because that
was how the plaintiff’s income from employment, at
that time, was ‘‘presently defined.’’
At the hearing on the underlying motion for con-
tempt, the parties’ expert witnesses were in conflict as
to whether the $605,000 reported on line 4 of the plain-
tiff’s K-1 issued by MPH was income for purposes of
the agreement. The defendant’s expert witness, Richard
Buggy, testified that, on the basis of the amounts
recorded on the plaintiff’s two K-1s, the plaintiff’s total
income from employment was $741,732. He also
acknowledged though that the payment of the $605,000,
as shown on line 4 of the MPH K-1, was related to the
plaintiff’s sale of his interest in MPH. He also described
it as a ‘‘departure payment’’ in exchange for the plaintiff
terminating his partnership interest in MPH. He further
testified that one should look at the MPH partnership
agreement to see how the payment should be treated,
but that he never looked at the agreement. After the
plaintiff presented the testimony of his accountant and
expert witness, Margaret Mayer, to explain why the
$605,000 on line 4 of the MPH K-1 was not income,
the defendant recalled Buggy in her rebuttal case to
respond to Mayer’s analysis. Buggy testified that, even
under Mayer’s methodology, the plaintiff owed true up
alimony of $14,264.
The court decided the defendant’s motion for con-
tempt based solely on the language of the agreement,
in particular, § 1.1 D. According to the court: ‘‘Section
1.1 D of the agreement sets forth the calculation of
true up alimony for 2014 and beyond. The defendant’s
argument that the amounts listed on both lines 1 and
line 4 of the K-1s should be considered income requires
the court to ignore the language in § 1.1 . . . D. . . .
In reaching their agreement, the parties were free to
define income in any way they wished. They did not
have to use [the] K-1 as a reference. If they wished to
do so, they could have referenced lines 1 and 4, line 4,
line 1, lines 1, 2, 3, and 4 or any combination of the
lines in [the] K-1 . . . . They chose to specify line 1.
If [the initial paragraph of] § 1.1 [was] sufficient to
define the plaintiff’s true up alimony obligation . . .
§ 1.1 D would be wholly unnecessary and completely
superfluous.’’ (Internal quotation marks omitted.) The
court’s analysis, however, does not discuss the language
in the initial paragraph of § 1.1 that the plaintiff’s income
‘‘for purposes of the alimony formula herein, is pres-
ently defined as Line 1 on [the plaintiff’s] annual K-1
from . . . MPH.’’ (Internal quotation marks omitted.)
Consequently, the court’s memorandum of decision
does not explain what meaning, if any, the court
attached to the clause ‘‘presently defined as.’’
The majority agrees with the court’s conclusion. In
doing so, the majority similarly ignores the ‘‘is presently
defined as’’ language in § 1.1. My colleagues make no
attempt to ascribe any meaning to those words or
attempt to read them with the language of §1.1 D to
give all of the language of § 1.1 meaning. Instead, they
offer a variety of reasons, none of which I find persua-
sive, to essentially read the ‘‘is presently defined as’’
language out of the parties’ agreement.3 I address each
of them in turn.
First, the majority, as did the trial court, notes that
the parties could have defined income any way they
wanted and could have identified lines other than line
1 of the K-1 from which to compute income. The major-
ity then states that it ‘‘cannot ignore or disregard the
language of the agreement because in hindsight an addi-
tional or more expansive term would have been better
for one of the parties.’’ The majority’s reasoning ignores
the fact that the parties specifically chose to define the
plaintiff’s income as his ‘‘annual income from employ-
ment.’’ Section 1.1 D then sets forth that line 1 of the
plaintiff’s K-1 from MPH was to be used at the time of
drafting because that was how the plaintiff’s annual
income from employment was ‘‘presently defined.’’
There was no need to provide a different way to identify
the plaintiff’s income because the parties could not
have anticipated, when the agreement was signed, that
the plaintiff’s employment would change or whether
the manner of reporting his income would change. It
is a reasonable reading of the agreement that by defining
the plaintiff’s obligation to pay alimony broadly as based
on his ‘‘annual income from employment,’’ the defen-
dant protected herself from any such contingency,
while also setting forth precisely how the plaintiff’s
income was calculated at the time of the dissolution.
Furthermore, the cases relied on by the majority do
not support its conclusion. Our Supreme Court in Crews
v. Crews, 295 Conn. 153, 169, 989 A.2d 1060 (2010),
addressed the high burden a party faces when challeng-
ing the enforceability of a premarital agreement. In
doing so, the court set forth the unremarkable proposi-
tion that parties are free to contract for whatever terms
they choose. In the present case, the parties chose to
qualify the reference to the plaintiff’s K-1 from MPH by
stating that that was how his income was ‘‘presently
defined.’’4 The use of such a qualifier reasonably can
be read as expressing an understanding that his income
might not always be defined that way, and that a change
in circumstances might require that it be defined differ-
ently. In fact, had the parties intended otherwise, there
would have been no reason to include the ‘‘is presently
defined as’’ language in the agreement.
Similarly, Chang v. Chang, 170 Conn. App. 822, 155
A.3d 1272, cert. denied, 325 Conn. 910, 158 A.3d 321
(2017), also is inapplicable to the present case. In
Chang, the defendant challenged the court’s award of
alimony to the plaintiff because the parties’ premarital
agreement did not provide for the possibility of alimony
upon the dissolution of the parties’ marriage. This court
rejected the defendant’s argument because there was
‘‘no provision in the agreement that even tangentially
govern[ed] the parties’ rights to alimony upon the disso-
lution of the marriage.’’ Id., 830. In the present case,
the defendant is not asking that a new term be added
to the parties’ agreement. Rather, she simply is asking
that the court interpret the parties’ agreement to give
meaning to all of its terms.
The majority next states that, to the extent that the
general language in the first paragraph of § 1.1 conflicts
with the specific language in § 1.1 D, the specific lan-
guage in § 1.1 D must govern. I disagree with the majori-
ty’s reasoning for three reasons.
First, the principle relied on by the majority applies
when reliance on the general language of the agreement
would render the specific language meaningless. For
example, in Issler v. Issler, 250 Conn. 226, 737 A.2d 383
(1999), another case on which the majority relies, the
parties disputed the manner in which the defendant’s
alimony obligation should be determined. Id., 234. The
parties’ separation agreement explicitly provided that
an accountant would prepare a letter setting forth the
defendant’s income from his employer, H. H. Brown. Id.,
231. The plaintiff argued that the letter was insufficient
because it did not capture all of the defendant’s income
from H. H. Brown, and the parties’ agreement provided
that the defendant was to pay alimony based upon his
‘‘gross earnings’’ from H. H. Brown. Id., 234, 236–37.
The court rejected the plaintiff’s argument because it
would render meaningless the language in the agree-
ment relating to the accountant’s letter. Id., 239. Instead,
the court held that the agreement should be construed
to give full meaning and effect to all of its provisions.
Id., 240. In the present case, the majority’s reasoning
violates this rule by rendering entirely meaningless the
‘‘is presently defined as’’ language at issue here.
The trial court did apply this rule, but reached what
I believe to be the erroneous conclusion that the defen-
dant’s interpretation renders § 1.1 D ‘‘wholly unneces-
sary and completely superfluous.’’ The initial paragraph
of § 1.1 does not set forth the formula for calculating
true up alimony. It merely states that the plaintiff must
pay true up alimony on income, which the agreement
defines as annual income from employment, between
$550,000 and $750,000. Section 1.1 D provides the spe-
cific percentages that are to be applied to income
between $550,000 and $700,000 and between $700,000
and $750,000. It also sets forth when such payments
must be made and that the defendant is entitled to
a copy of the plaintiff’s K-1. Consequently, under the
defendant’s interpretation, § 1.1 D is far from superflu-
ous; rather, it absolutely is necessary to the determina-
tion of the plaintiff’s obligation.
I acknowledge that § 1.1 D provides that the income
used to calculate true up alimony is that ‘‘reflected on
line 1 of [the plaintiff’s] K-1.’’ That language, as the
majority concedes, must be interpreted in conjunction
with the language in the initial foundational paragraph
of § 1.1, which the trial court failed to do. Reading § 1.1
in its entirety, I conclude that the defendant has offered
a reasonable interpretation of the agreement.
Second, ‘‘[w]here two clauses which are apparently
inconsistent may be reconciled by a reasonable con-
struction, that construction must be given, because it
cannot be assumed that the parties intended to insert
inconsistent and repugnant provisions.’’ (Emphasis in
original; internal quotation marks omitted.) Thoma v.
Oxford Performance Materials, Inc., 153 Conn. App.
50, 61, 100 A.3d 917 (2014). As noted previously, the
defendant has offered a construction that reconciles
the foundational paragraph of § 1.1 with § 1.1 D.
Finally, ‘‘[i]rreconcilable inconsistent provisions
have been treated by this court and our Supreme Court
as creating an ambiguity within the contract.’’ Id., 60.
Thus, to the extent that there is an irreconcilable con-
flict between the foundational paragraph of § 1.1 and
§ 1.1 D, the court should have considered extrinsic evi-
dence to determine the intent of the parties in light of
the conflict.
The majority also posits that the defendant has aban-
doned her claim that the agreement is ambiguous
because she failed to brief this issue adequately. I dis-
agree. In her principal brief, the defendant argues why
the language of the agreement does not clearly and
unambiguously lead to the result advocated by the plain-
tiff and argues what the court should have done if it
did not accept the defendant’s argument regarding the
clear and unambiguous meaning of the agreement. The
plaintiff clearly understood the defendant’s argument
and addressed it in his brief on appeal. In addition,
most of the defendant’s reply brief is devoted to this
issue. I conclude that the issue has been briefed fully
and sufficiently. Furthermore, because the question of
whether the agreement is ambiguous is a legal one,
and is a ‘‘threshold question,’’ it properly is before us
regardless of how it was briefed. Parisi v. Parisi, supra,
315 Conn. 380. It is our duty in considering a judgment
on a motion for contempt to determine first whether the
agreement was ambiguous even if both parties offered
what they claimed were competing clear and unambigu-
ous interpretations. Id.; In re Leah S., 284 Conn. 685,
693, 935 A.2d 1021 (2007). In fact, in Parisi, neither
party argued at the trial court or on appeal that the
agreement was ambiguous. Parisi v. Parisi, supra, 378–
79. Nevertheless, our Supreme Court addressed the
‘‘threshold question’’ of whether the parties’ separation
agreement was clear and unambiguous. Id., 380–81. It
held that, the arguments of the parties notwithstanding,
‘‘each of the parties has set forth a plausible construc-
tion of the alimony buyout provision, with both con-
structions having bases in the language used in the
separation agreement. We conclude, therefore, that the
agreement . . . is ambiguous, with its meaning pre-
senting a question of fact that the trial court should
have fully considered and resolved.’’ Id., 385. That is
precisely the situation in the present case. Both parties
have presented plausible arguments based on the lan-
guage of the parties’ agreement. In my opinion, the
agreement, therefore, is ambiguous. See id.
The majority’s interpretation of § 1.1 also is problem-
atic because it leads to absurd results. Under the majori-
ty’s analysis, if the plaintiff’s employment income is
reported in some manner other than on line 1 of a K-
1, the defendant would be entitled to no true up alimony.
This would be true even though neither party disputes
that the line on which income is reported on a K-1 is
largely in the discretion of the preparer. It also would be
true if the plaintiff’s law firm changed its organizational
structure from a partnership reporting income on a K-
1 to a professional corporation that would report its
members’ incomes on W-2 forms. Similarly, under the
majority’s interpretation, the defendant would be enti-
tled to no true up alimony if the plaintiff, instead of
working in a law firm, practiced law as the general
counsel of a major corporation, and his income was
reported on a W-2 form or a 1099 form. I cannot square
such outcomes with the parties’ express statement in
their agreement that the plaintiff’s obligation to pay
alimony is based on his ‘‘annual income from
employment.’’
The majority ignores such absurdities by stating that
because the plaintiff did not receive a W-2 form for
2015, it is ‘‘inappropriate to speculate about the possible
effect, if any, on the application of the agreement of
his receipt of such other income reporting forms.’’ No
speculation is necessary though. The majority’s holding
spells out very clearly what would happen if the plain-
tiff’s income is reported in some manner other than on
line 1 of a K-1. The defendant would be entitled to no
true up alimony. This is the undeniable consequence
of the majority’s interpretation and in no way is specu-
lative.
In sum, I conclude that the plaintiff has offered a
reasonable, if not more reasonable, interpretation of
the agreement. The foundational paragraph of § 1.1
explicitly provides that alimony payments are to be
made on the basis of the plaintiff’s annual income from
employment. At the time the agreement was executed,
that income was ‘‘presently defined as’’ what was shown
on line 1 of the plaintiff’s K-1 from MPH. The reference
to ‘‘presently defined’’ reasonably can be read as tempo-
ral, meaning that the plaintiff’s income is currently
reflected on his MPH K-1, but that it could be reflected
in some other manner in the future.5 Such an interpreta-
tion works hand in hand with the formula in § 1.1 D,
while still preserving the parties’ clearly stated intention
to base the plaintiff’s obligation to pay alimony on his
employment income if his employment, or the manner
in which his income is reported, changed from the state
that existed when the parties signed the agreement.
Although I have identified what I perceive to be signif-
icant problems with the interpretive approach of the
trial court and the majority, I am not prepared to dismiss
their interpretation as wholly unreasonable; instead, I
would conclude that because the agreement is subject
to more than one reasonable interpretation, it is ambigu-
ous. See Parisi v. Parisi, supra, 315 Conn. 385. As such,
the trial court should have considered the extrinsic
evidence submitted to it to determine how the ambigu-
ities in § 1.1 should be resolved. See id. In fact, the
plaintiff specifically offered, through his testimony,
extrinsic evidence as to the parties’ negotiations and
why § 1.1 was drafted in the way it was drafted. In
particular, the plaintiff testified that the language of
§ 1.1 was intended to record properly ‘‘any income I,
actually, received from the practice of law.’’6 He also
testified that on which line GTV reported his income
on the K-1 would not impact his obligation to pay true
up alimony. Unfortunately, the trial court, by finding
the agreement to be clear and unambiguous, did not
consider such extrinsic evidence. I conclude that this
was an error that requires a new hearing.
Having reached this conclusion, I turn to the plain-
tiff’s alternative arguments for affirmance. First, the
plaintiff argues that if the agreement is ambiguous, he
cannot be held in contempt because a finding of con-
tempt must be made on the basis of the intentional
violation of a clear and unambiguous court order. Brody
v. Brody, 315 Conn. 300, 319, 105 A.3d 887 (2015). I
agree that my conclusion that the agreement is ambigu-
ous would preclude a finding that the plaintiff is in
contempt of court because he disputed the defendant’s
claim to true up alimony. Nevertheless, the trial court
still can order relief in the form of true up alimony
payments if it concludes, on the basis of the language of
the agreement interpreted in light of relevant extrinsic
evidence, that the defendant’s interpretation of the
agreement is correct and that the plaintiff has under
calculated his income for 2015. See O’Brien v. O’Brien,
326 Conn. 81, 99, 161 A.3d 1236 (2017) (‘‘[i]n a contempt
proceeding, even in the absence of a finding of con-
tempt, a trial court has broad discretion to make whole
any party who has suffered as a result of another party’s
failure to comply with a court order’’ [internal quotation
marks omitted]); Parisi v. Parisi, supra, 315 Conn.
381 (‘‘court’s inherent authority to effectuate its prior
judgments, either by summarily ordering compliance
with a clear judgment or by interpreting an ambiguous
judgment and entering orders to effectuate the judg-
ment as interpreted, is not dependent upon a predicate
finding that a noncompliant party is in contempt’’ [inter-
nal quotation marks omitted]); Pressley v. Johnson, 173
Conn. App. 402, 408–409, 162 A.3d 751 (2017) (although
not finding defendant in contempt, trial court had
authority ‘‘to fashion an order consistent with pro-
tecting the integrity of the dissolution judgment’’).
Second, the plaintiff argues that the $605,000 payment
he received from MPH when he left the firm clearly
was not income, but was instead the purchase of his
ownership interest in the firm. Although I agree that
the plaintiff submitted a significant amount of evidence
to support his position, it is not the function of this
court to find facts. See Parisi v. Parisi, supra, 315 Conn
385 (‘‘[i]t is elementary that neither [our Supreme Court]
nor the Appellate Court can find facts in the first
instance . . . but may only review such findings to see
whether they might be legally, logically and reasonably
found’’ [emphasis in original; internal quotation marks
omitted]). Because the trial court did not resolve this
question, there are no findings for this court to review.
Consequently, I would reverse the trial court’s judgment
denying the defendant’s motion for contempt and
remand the case to the trial court for a new hearing on
the motion.
Having concluded that the agreement is ambiguous
and that a further hearing is required on the defendant’s
motion, I agree with the majority’s conclusion in part
II of its opinion that the court did not err in denying
the plaintiff’s request for attorney’s fees. Consequently,
I respectfully dissent only from part I of the opinion.
1
At the time the parties entered into the agreement and the dissolution
judgment was rendered, the plaintiff was a full equity partner and the manag-
ing partner of MPH.
2
The majority notes that the court found that the plaintiff had no control
over how his income was reported on his 2015 schedule K-1. The majority’s
reliance on this factual finding is troubling for two reasons. First, the finding
is based on evidence extrinsic to the parties’ contract, in particular, the
plaintiff’s testimony. Of course, such extrinsic evidence only may be consid-
ered where the agreement at issue is ambiguous. Second, the plaintiff did
not testify that he had no control over GTV’s K-1. To the contrary, he testified
that it was a mistake for his new accountant to record any income on line
4 of the K-1, and that for 2016, all income from GTV was reported on line
1 of the K-1.
3
Although not stated as a reason to conclude that the agreement is clear
and unambiguous, the majority takes the time to note that both parties are
attorneys, who also were represented by counsel when they entered into
the agreement. To the extent that the majority sets forth these facts for the
purpose of lending support for its conclusion, I am not persuaded. First,
the parties’ professions and whether they were represented by counsel are
extrinsic facts that can be considered only if the agreement is not clear and
unambiguous. Second, it is not unusual for sophisticated parties who are
represented by highly skilled and experienced attorneys to enter into ambigu-
ous agreements. See, e.g., Gold v. Rowland, 325 Conn. 146, 171–89, 156 A.3d
477 (2017).
4
Yet another reason that the language of § 1.1 is not clear and unambiguous
is that it refers to ‘‘line 1 of [the plaintiff’s] K-1’’ from MPH. It does not
mention the possibility of multiple K-1s from different firms. Despite this,
the plaintiff, the trial court, and the majority, without comment, simply
ignore the reference to a single K-1 from MPH and assume that true up
alimony is to be calculated from line 1 of all of the K-1s issued to the plaintiff.
5
The majority states that the defendant has provided no analysis nor cited
to any legal authority to support her contention that the addition of the
word ‘‘presently’’ somehow transforms the definition of ‘‘income’’ provided
by § 1.1 into a mere example. I disagree. The defendant carefully analyzed
§ 1.1, including pointing out that the trial court’s interpretation rendered the
‘‘presently defined’’ language superfluous. I also disagree that the defendant
needed to cite legal authority as to how the word ‘‘presently’’ modified the
definition of true up alimony. The defendant properly relied on the common
meaning of ‘‘presently,’’ which the majority defines as ‘‘now’’ or ‘‘at the
present time.’’ That definition is completely consistent with the defendant’s
argument and my analysis.
6
The defendant objected to the admission of any evidence regarding the
parties’ negotiation of the agreement claiming that parol evidence is not
admissible where an agreement is clear and unambiguous. In response,
plaintiff’s counsel argued that because the evidence was not offered to vary
or alter the terms of the agreement, which he also claimed was clear and
unambiguous, the evidence did not ‘‘run afoul of the parol evidence rule.’’
The court overruled the defendant’s objection and admitted the evidence.
The argument of plaintiff’s counsel and the ruling of the court reflect a
misunderstanding of the parol evidence rule. The law is clear that parol
evidence is not admissible where the agreement is clear and unambiguous.
HLO Land Ownership Associates Ltd. Partnership v. Hartford, 248 Conn.
350, 357–58, 727 A.2d 1260 (1999). Only if the agreement is ambiguous may
parol evidence be admitted, and then only if such evidence does ‘‘not vary
or contradict the terms of the contract.’’ Id., 359–60.