Dejana v. Dejana

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WENDY J. DEJANA v. MICHAEL DEJANA
(AC 38884)
Keller, Prescott and Beach, Js.
Syllabus
The plaintiff, whose marriage to the defendant previously had been dis-
solved, appealed to this court from the judgment of the trial court
denying her postjudgment motion for contempt, in which she alleged
that the defendant had not paid her the full amount due for unallocated
alimony and child support as required under the parties’ separation
agreement, which had been incorporated into the dissolution judgment.
On appeal, the plaintiff claimed that the court, in declining to hold the
defendant in contempt, improperly interpreted the separation
agreement. Specifically, she claimed that the defendant did not pay her
support from that portion of his compensation that was comprised of
moneys declared as income on his income tax return from a certain
long term incentive stock award program offered by his employer. The
court had found that the separation agreement gave the defendant the
right to apply all or a portion of the funds in dispute to the college
education expenses of the parties’ child without any claim by the plaintiff
to receive any portion of those funds for her benefit. Held:
1. Contrary to the defendant’s assertion, the plaintiff’s claim that the trial
court should have awarded her an arrearage consisting of 30 percent
of the defendant’s compensation from the stock incentive program for
additional unallocated alimony and child support owed was preserved
and considered by the trial court and, therefore, was reviewable on
appeal; although the trial court noted in its memorandum of decision
that the basis of the plaintiff’s claim that her unallocated alimony and
child support had been underpaid was that she was entitled to receive
a percentage of the defendant’s income from the funds of the stock
incentive program, the court determined that the plaintiff was not enti-
tled any percentage share of those funds, which, pursuant to the terms
of the parties’ separation agreement, were expressly reserved to the
defendant for use in paying the son’s college expenses.
2. The trial court did not abuse its discretion in denying the plaintiff’s
postjudgment motion for contempt, the defendant having complied with
the provision of the separation agreement governing unallocated alimony
and child support; the trial court properly determined that the language
of the separation agreement that required the defendant to pay the
plaintiff 40 percent of his base salary and 30 percent of his annual bonus
as unallocated alimony and child support was clear and unambiguous,
and required the defendant to pay unallocated alimony and child support
based on a percentage of his base salary and annual incentive cash
bonus, and to use the entirety of any income he received from his stock
incentive program to fund his son’s college education, and although the
plaintiff would have liked the income from the stock incentive program
to have been considered a form of bonus compensation from which the
defendant would be required to pay her 30 percent of the value, the
court correctly construed the specific language of the agreement as
awarding all funds derived from the stock incentive program to the
defendant for the purpose of paying the son’s college expenses, as the
specificity of the permitted usage of the stock incentive funds to meet the
defendant’s obligation for college expenses as set out in the separation
agreement controlled and was given greater weight than the general
definition of the word bonus, so as not to render any provision of the
agreement superfluous.
Argued April 18—officially released September 5, 2017
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Fairfield and tried to the court, Marano, J.;
judgment dissolving the marriage and granting certain
other relief in accordance with the parties’ separation
agreement; thereafter, the court, Sommer, J., denied
the plaintiff’s motion for contempt, and the plaintiff
appealed to this court. Affirmed.
James H. Lee, for the appellant (plaintiff).
Dori-Ellen S. Feltman, for the appellee (defendant).
Opinion
KELLER, J. The plaintiff, Wendy J. Dejana, appeals
from the judgment of the trial court denying her post-
judgment motion for contempt against the defendant,
Michael Dejana. On appeal, the plaintiff claims that the
court, in declining to hold the defendant in contempt,
improperly interpreted the parties’ separation
agreement, which had been incorporated into the judg-
ment of dissolution. In support of this claim, the plaintiff
argues that the court improperly determined that the
separation agreement (1) required the defendant to pay
unallocated alimony and child support based upon a
percentage of his base salary and annual incentive cash
bonus, and (2) permitted the defendant to use the
entirety of the income he received from vested stock
units, pursuant to his employer’s long-term incentive
program, to fund the private college education of the
parties’ son. We affirm the judgment of the court.1
The following factual and procedural history is rele-
vant to our resolution of the plaintiff’s claims. On April
21, 2015, the plaintiff filed a postjudgment motion for
contempt, claiming, inter alia, that the defendant had
not paid her the full amount due for unallocated alimony
and child support since 2010. On September 2, 2015,
and December 16, 2015, a hearing on the motion was
held before the court at which both parties testified
and presented other evidence.
In its memorandum of decision, the court found the
following facts and procedural history. ‘‘The marriage
of the plaintiff and the defendant was dissolved on
January 9, 2009. Among the orders entered by the court
at the time of dissolution were unallocated alimony and
child support orders set forth in article VIII of their
separation agreement. [The plaintiff] has filed a motion
for contempt, dated April 10, 2015, in which she alleges,
inter alia, that the defendant mischaracterized his 2010–
2013 compensation as base salary, resulting in [the]
plaintiff receiving $84,821 less than she was entitled to
receive. . . .2
‘‘Article VIII of the separation agreement sets forth
the terms of the parties’ agreement regarding unallo-
cated alimony and child support.3 In addition to the
alimony and support obligations set forth in paragraph
8.1 of [that article of] the separation agreement, the
parties further agreed in article VII, [paragraph] 7.1,
that the defendant would be obligated to pay all of
the undergraduate college education expenses for the
parties’ minor son . . . . The agreement provided that
the defendant shall have the option of fulfilling this
obligation by scholarships and grants obtained by [the
parties’ son] and the use of [the defendant’s Long-Term
Incentive Award Program (LTIP), or as it is alternatively
referenced, Performance Stock Deferred Plan, an award
program established by his former employer, the Royal
Bank of Canada (bank)].4
‘‘The parties do not dispute the following facts. [Their
son] attended Trinity College from September, 2011,
until he graduated in May, 2015, at a total cost of approx-
imately $240,000. Pursuant to the parties’ separation
agreement, [the] defendant paid all of [the son’s] college
expenses. In compliance with the parties’ separation
agreement, [the] defendant utilized the funds in his
[LTIP] to pay for . . . college expenses at Trinity Col-
lege. [The defendant] received $225,746 from the [LTIP]
program, net of taxes. He paid Trinity College $235,021
using funds from the . . . LTIP account in full, and
supplementing his obligation to pay for [his son’s] edu-
cation from other funding sources. [The defendant] is
no longer employed by [the bank] and is therefore no
longer entitled to participate in, or receive benefits
from, the [LTIP]. Following [their son’s] graduation
from Trinity College, [the] plaintiff filed the within
motion for contempt, alleging that [the defendant] did
not pay her the proper amount [of] unallocated alimony
and child support, as required by the terms of the sepa-
ration agreement. In simplest terms, [the] plaintiff’s
claim arises from the fact that [the] defendant did not
pay [the] plaintiff support from that portion of his com-
pensation which was comprised of mon[eys] declared
as ‘income’ on his income tax return from [the LTIP].
‘‘[The plaintiff] called Dr. Daniel Purushothan in sup-
port of her claim that the LTIP mon[eys] [the] defendant
received should be included in the calculation of her
alimony payment. [Purushothan] was qualified to testify
on the issue of executive compensation as related to
[the] defendant’s compensation. He provided a clear
explanation of executive compensation. In this case, as
noted, [the] defendant received, in addition to a base
salary, a portion of his compensation as income pursu-
ant to the [LTIP] established by his [former] employer,
[the bank]. . . . Purushothan testified that, as an indi-
vidual rises through the executive ranks, the proportion
of [his] income attributed to regular salary diminishes,
and the individual receives a higher proportion of
income based on variable factors, such as bonuses or
equity in the organization. In this case, [the] defendant’s
income is comprised of a base salary, annual incentive
or cash bonus [(annual incentive cash bonus)] and
the [LTIP].
‘‘Notwithstanding the testimony of . . . Purusho-
than, at the time of dissolution, the parties themselves
had determined how the portion of the defendant’s
income which was derived from his participation [in
the bank’s LTIP] award program should be utilized.
That agreement clearly gave the defendant the right to
apply those funds to their son’s college education.
‘‘The court has carefully considered the evidence and
testimony presented and has applied the facts to the
terms of the parties’ [separation] agreement. Based on
the foregoing, the [court] concludes that the plaintiff
is attempting to require the defendant to pay her a
portion of the LTIP income as alimony when she has
already agreed that these funds shall be applied to
[their] son’s education expenses. There is no limitation
on the defendant’s right to use the LTIP income for
[the son’s] college expenses. The parties could have
provided that the portion of the . . . LTIP income
remaining, net of any percentage paid as alimony, could
be applied to . . . college expenses. They did not do
so. The terms of the separation agreement are clear.
‘‘The plaintiff has not sustained her burden of proving
that the defendant has failed to pay her alimony as
ordered by the court at the time of dissolution and that
she has been . . . underpaid. [The plaintiff’s] argument
would require a finding that she was entitled to receive
a percentage of the defendant’s income from the . . .
LTIP program and that, only thereafter, could the defen-
dant apply the LTIP mon[eys] to pay for their son’s
college education. As agreed by the parties at the time
of dissolution, the defendant had the option, i.e., it was
his sole right to apply all or any portion of the funds
in the LTIP account from that source to pay for the
. . . college education [of the parties’ son] without any
claim by the plaintiff to receive any portion of the LTIP
funds for her benefit.’’ (Footnotes added.)
The court denied the plaintiff’s motion for contempt
and counsel fees. This appeal followed. Additional facts
will be set forth as necessary.
I
We first address the defendant’s assertion that the
claim that the plaintiff presents on appeal was not pre-
served in the trial court and, therefore, we should
decline to review it. We are not persuaded by this
argument.
The defendant claims that the plaintiff asserts for
the first time on appeal that the defendant’s arrearage
‘‘comes to about $100,000,’’ based upon a new theory
of the case: that the defendant paid her the correct
percentage of his base salary and annual incentive cash
bonus, but that, pursuant to article VIII, paragraph 8.1,
of the separation agreement, he also should have paid
her 30 percent of the income realized annually from
the LTIP as additional unallocated alimony and child
support.
‘‘It is well established that an appellate court is under
no obligation to consider a claim that is not distinctly
raised at the trial level. . . . [B]ecause our review is
limited to matters in the record, we [also] will not
address issues not decided by the trial court.’’ (Internal
quotation marks omitted.) Remillard v. Remillard, 297
Conn. 345, 351, 999 A.2d 713 (2010). ‘‘The reason for
the rule is obvious: to permit a party to raise a claim
on appeal that has not been raised at trial—after it is
too late for the trial court . . . to address the claim—
would encourage trial by ambuscade, which is unfair
to both the trial court and the opposing party.’’ (Internal
quotation marks omitted.) State v. Bellamy, 323 Conn.
400, 454–55, 147 A.3d 655 (2016).
The defendant correctly points out that this claim
differs substantially from the allegation made in the
plaintiff’s motion for contempt, that the defendant owed
her $84,8215 because he ‘‘mischaracterized his 2010 and
2011 income as base salary rather than bonus,’’ and
from an entirely different claim that was presented by
the plaintiff during the contempt hearing, that the defen-
dant owed her approximately $193,000 because he
should have paid the plaintiff 40 percent of his total
income, including his base salary, annual bonus, and
the annual vested value of his stock units in the LTIP.
After thoroughly reviewing the record, we conclude,
however, that the court interpreted certain representa-
tions made by the plaintiff as a third, alternative claim,
now constituting the plaintiff’s claim on appeal, which
was rejected by the court. During the hearing, the court
made several efforts to clarify the precise nature of
the basis for the plaintiff’s contempt motion. Midway
through the second day of the contempt hearing, the
defendant raised a due process claim on the basis of the
plaintiff’s lack of clarity as to her allegation of contempt.
The court engaged in a lengthy discussion with the
plaintiff’s counsel regarding this lack of clarity, but
determined that, essentially, the plaintiff was asserting
an underpayment on the part of the defendant of his
obligation under article VIII, paragraph 8.1, of the sepa-
ration agreement, and given the amount of evidence
that already had been presented, the court allowed the
plaintiff to continue pursuing her motion despite the
defendant’s objection. At one point, however, the court
characterized the plaintiff’s claim as follows:
‘‘The Court: Isn’t the plaintiff’s claim a matter of set-
ting forth for the court a mathematical chart that says
here’s what I claim I’m entitled to? I, the plaintiff. Forty
percent of the—
‘‘[The Plaintiff’s Counsel]: Right
‘‘The Court: —base salary. The salary. Thirty percent
of the [annual incentive cash bonus]. And according to
the plaintiff’s claim, if I understand correctly, also 30
percent of the [LTIP], because the plaintiff’s argument
is that the [LTIP] and the [annual incentive cash bonus]
are both in that category. Isn’t that what the plaintiff
is claiming?
‘‘[The Plaintiff’s Counsel]: ‘‘We’re claiming exactly
that, the [LTIP] and [the annual incentive cash bonus]
both belong in—in the general—
‘‘The Court: Well, it’s not exactly clear from this.’’
The defendant testified that, in accordance with his
interpretation of the separation agreement, he paid the
plaintiff 40 percent of his semimonthly, base salary pay-
check, and at the end of each year, when he was
awarded his annual incentive cash bonus, he paid the
plaintiff 30 percent of that. He further testified that he
used all the income he received from his LTIP to pay
for the college expenses of the parties’ son, and that
he actually incurred a shortfall after exhausting the
LTIP funds.
Later during the hearing, counsel for the plaintiff
indicated that one of the bases for the plaintiff’s claim
of an arrearage being owed to her is that the defendant
‘‘should have paid [the plaintiff] a portion of the vested
LTIP shares as he received them . . . in addition to
. . . using [them] to pay for college,’’ and that the LTIP,
as part of the defendant’s total direct cash compensa-
tion, should be treated as either base or bonus salary.6
At the conclusion of the hearing, during the plaintiff’s
testimony, she referred to a spreadsheet of calculations
she had prepared in support of her claim, and she
requested that the court either find that the defendant
should have been paying her, as unallocated alimony
and child support, 40 percent of his total compensation,
including his base salary, annual incentive cash bonus,
and the LTIP funds, or in the alternative, 40 percent
of his base salary, 30 percent of his annual incentive
cash bonus, and 30 percent of his LTIP income.
We therefore conclude that the claim on appeal—
that the court should have awarded the plaintiff an
arrearage consisting of 30 percent of his LTIP compen-
sation for additional unallocated alimony and child sup-
port owed—was preserved, albeit somewhat inartfully,
and considered by the trial court. In its memorandum of
decision, the court noted that the basis of the plaintiff’s
claim that her unallocated alimony and child support
had been underpaid was that she was entitled to receive
a percentage of the defendant’s income from the LTIP
funds. Although this alleged percentage owed, as
claimed by the plaintiff, was either 30 percent or 40
percent, the court ruled that the plaintiff was entitled
to no percentage share of the defendant’s LTIP income,
as that income was expressly reserved to the defendant
by the terms of the separation agreement for use in
paying the son’s college expenses.
II
We next address both aspects of the plaintiff’s claim
together, as they each involve the court’s interpretation
of the parties’ separation agreement, and are inter-
related.
We begin with general principles and the applicable
standards of review. The order at issue in the present
case is contained in the parties’ separation agreement,
which was incorporated into the court’s judgment of
dissolution. ‘‘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.’’ (Emphasis in
original; internal quotation marks omitted.) Parisi v.
Parisi, 315 Conn. 370, 383, 107 A.3d 920 (2015).
‘‘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.’’ (Internal quotation marks omit-
ted.) Nation-Bailey v. Bailey, 316 Conn. 182, 192, 112
A.3d 144 (2015).
The plaintiff claims that the court improperly inter-
preted the parties’ separation agreement as (1) requiring
the defendant to pay unallocated alimony and child
support based upon a percentage of his base salary and
annual incentive cash bonus, and (2) permitting the
defendant to use the entirety of the income he received
from vested stock units pursuant to his former employ-
er’s LTIP to fund the private college education of the
parties’ son. The defendant argues that the court prop-
erly interpreted the plain and unambiguous language
of the separation agreement as requiring the defendant,
under article VIII, to pay unallocated alimony and child
support based upon a percentage of his base salary
and annual incentive cash bonus, and permitting the
defendant under article VII to use the entirety of any
income he received from his LTIP to fund his son’s
college education. We agree with the defendant.
At the time of the parties’ divorce in 2009, the defen-
dant worked at the bank, and the parties had one minor
child. The defendant’s compensation from the bank
consisted of three components: (1) a base salary; (2)
an annual incentive cash bonus paid in December of
each year; and (3) the LTIP, an award of stock units
that automatically vested three years after each award
of stock was made.
The parties’ separation agreement addressed the
three components of the defendant’s compensation
package in two separate and independent provisions.
The first two components of the defendant’s compen-
sation, specifically, the defendant’s base salary and
annual incentive cash bonus, are indisputably
addressed in article VIII, entitled ‘‘Unallocated Alimony
and Child Support.’’ That article sets forth that the
defendant would pay to the plaintiff 40 percent of his
base salary and 30 percent of his annual bonus as unallo-
cated alimony and child support until the earlier of the
defendant’s death, the plaintiff’s death or remarriage,
or thirteen and one-half years from the first payment,
with the percentages reduced to 35 percent of the defen-
dant’s base salary and 25 percent of the defendant’s
bonus on April 1, 2012.7 Although, during the contempt
hearing, the plaintiff also argued that all three compen-
sation components were part of the defendant’s base
salary, she now concedes on appeal that there is no
dispute as to the precise meaning of ‘‘base salary,’’
which consists of the semimonthly gross salary paid to
the defendant by the bank, 40 percent of which was to
be paid to the plaintiff upon receipt. The parties also
do not disagree over the inclusion of the annual incen-
tive cash bonus within the meaning of the word ‘‘bonus’’
in paragraph 8.1 of article VIII of the separation
agreement.
The dispute centers around whether, in addition to
the annual incentive cash bonus that the defendant
received every December 15, the term ‘‘bonus,’’ in para-
graph 8.1 of article VIII, also includes the income
derived from the defendant’s vested LTIP stock awards.
To resolve the claim presented in this appeal, we must
determine whether the court properly concluded that
article VII, paragraph 7.1, of the separation agreement
unambiguously provides that the defendant could use
his existing and future LTIP income toward the payment
of college expenses. That issue presents a question of
law over which our review is plenary to determine if
the court’s conclusions are legally and logically correct.
See Flaherty v. Flaherty, 120 Conn. App. 266, 269, 990
A.2d 1274 (2010).
The plaintiff relies on a broad definition of ‘‘bonus,’’
the word used in article VIII, paragraph 8.1, to support
her claim that the defendant also was ordered to pay
her 30 percent of the value of the income from his vested
LTIP stock awards, since ‘‘bonus’’ has been expansively
defined as ‘‘money or an equivalent given in addition to
the usual compensation.’’ (Emphasis omitted; internal
quotation marks omitted.) Ziotas v. Reardon Law Firm,
P.C., 111 Conn. App. 287, 295, 959 A.2d 1013 (2008)
(citing definition of ‘‘bonus’’ in Webster’s Third New
International Dictionary), rev’d in part on other
grounds, 296 Conn. 579, 997 A.2d 453 (2010).
The defendant counters that although the LTIP gener-
ally might be considered as a form of bonus compensa-
tion, the court correctly construed the specific language
of paragraph 7.1 of article VII, entitled ‘‘Educational
Expenses,’’ as awarding all funds derived from the LTIP
compensation to the defendant for the purpose of
assisting him in paying the college expenses of the
parties’ son.8 We agree with the defendant.
The record reveals that the court in the present case
determined that the contractual language in article VII,
paragraph 7.1, clearly and unambiguously provided that
the LTIP funds the defendant received as additional
compensation prior to and after the marriage dissolu-
tion were specifically reserved for the defendant’s use
in paying the college education expenses of the parties’
son. As a result, viewing the contract as a whole, the
LTIP funds were necessarily excluded from the refer-
ence to bonus income in article VIII, paragraph 8.1,
which described how the amounts of the defendant’s
payments of unallocated alimony and child support
were to be calculated. Significantly, the court did not
articulate any factual findings with respect to the intent
of the parties in enacting the contractual language at
issue. Had the court found article VII, paragraph 7.1,
to be ambiguous, it necessarily would have made factual
findings as to the intent of the parties. See Fazio v.
Fazio, 162 Conn. App. 236, 250, 131 A.3d 1162 (ambigu-
ity in separation agreement ‘‘required’’ trial court ‘‘to
make a finding of fact as to the parties’ intent’’), cert.
denied, 320 Conn. 922, 132 A.3d 1095 (2016). No such
findings are reflected in the record before us.
Article VII, paragraph 7.1, provides in relevant part
that the defendant ‘‘shall have the option of fulfilling
[his] obligation [for paying the costs of four years of
college education] in whole or part by obtaining any
scholarships or grants which are obtained by the child
and the use of his [LTIP] . . . .’’ Although the
agreement notes the vested and unvested value of the
LTIP as of December 21, 2008, the year prior to the
date of the parties’ marriage dissolution, it does not
limit the dollar amount the defendant can access from
the fund.9 There is no reference in paragraph 7.1 that,
for the purpose of paying college expenses, the defen-
dant can use only the LTIP income remaining net of
any percent paid as unallocated alimony and child sup-
port. In fact, paragraph 7.1 provides that the defendant
must fulfill his total educational obligation even if the
LTIP decreases in value in the future, which implicitly
acknowledges that the value of the fund might increase
or decrease in future years and, therefore, the LTIP
might not entirely provide the defendant with the means
to pay the son’s college expenses.10
Although the plaintiff would like to have the expan-
sive general definition of the word ‘‘bonus’’ applied to
incorporate the LTIP funds into paragraph 8.1 of article
VIII for the purpose of calculating unallocated alimony
and child support, the specificity of the permitted usage
of the LTIP funds to meet the defendant’s obligation for
college expenses in paragraph 7.1 of article VII should
control and be given greater weight than the general
definition of the word ‘‘bonus.’’ See 2 Restatement (Sec-
ond), Contracts § 203 (1981). If the parties had intended
that the defendant would pay the plaintiff a percentage
of his LTIP income annually to the plaintiff, there was no
reason to include any language in article VII specifically
permitting him to use the funds for college expenses;
he would not have needed permission to spend the
remaining percentage, after paying unallocated alimony
and child support, in any way he chose. We decline to
interpret the language of article VII referencing the LTIP
funds in a manner that would render this provision
superfluous. ‘‘When interpreting a contract, we must
look at the contract as a whole, consider all relevant
portions together and, if possible, give operative effect
to every provision in order to reach a reasonable overall
result.’’ (Internal quotation marks omitted.) R.T. Vand-
erbilt Co. v. Continental Casualty Co., 273 Conn. 448,
462, 870 A.2d 1048 (2005).
We further note that the separation agreement, in
article XXIV, incorporates into and makes part of the
agreement the financial affidavits of both parties that
were filed at the time of the marriage dissolution in
January, 2009. The agreement provides that it is
‘‘expressly understood that the terms of this agreement
and the financial arrangement hereunder were made
upon the representations contained in said affidavits,’’
and that ‘‘the parties hereto relied upon said representa-
tions in executing this agreement.’’ This is significant
because the defendant’s financial affidavit references
only one ‘‘bonus,’’ the annual incentive cash bonus,
which he listed, along with his base salary, as part of
his weekly income. The LTIP fund was not listed as
bonus income, but rather as an asset, on the defendant’s
financial affidavit. The fact that the financial affidavit
includes only the annual incentive cash bonus as bonus
income lends further support to the court’s determina-
tion that the LTIP income was not part of the bonus
referred to in article VIII, which governed unallocated
alimony and child support.
The court correctly determined that the language in
article VII, paragraph 7.1, of the separation agreement
was clear and unambiguous, and effectively removed
the LTIP funds from the calculation of the 30 percent
of bonus income contemplated in article VIII, paragraph
8.1, of the unallocated alimony and child support provi-
sion of the agreement. The defendant, therefore, had
complied with paragraph 8.1 of the separation
agreement. Accordingly, the court did not abuse its
discretion in denying the plaintiff’s postjudgment
motion for contempt.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although not clearly expressed in the plaintiff’s statement of issues, we
presume that the plaintiff is also claiming that the court erred in denying
her motion for contempt.
2
The court noted that the ‘‘[p]laintiff further submits that the amount of
alleged underpayment for 2014 has not yet been determined.’’
3
Article VIII of the parties’ separation agreement is entitled, ‘‘Unallocated
Alimony and Child Support.’’ Paragraph 8.1 of article VIII provides: ‘‘The
Husband, during his lifetime, shall pay to the Wife as alimony, immediately
upon receipt of each of his base salary paycheck[s], forty (40%) percent of
the gross amount of the base salary and thirty (30%) percent of any bonus
upon receipt of same. Commencing April 1, 2012, the percentages shall be
reduced to thirty-five (35%) percent with respect to the base salary and
twenty-five (25%) percent with respect to the bonus.’’
4
Article VII of the parties’ separation agreement is entitled, ‘‘Educational
Expenses.’’ Paragraph 7.1 of article VII provides in pertinent part: ‘‘The
Husband shall be responsible for and shall pay the costs of four (4) years
of undergraduate college education leading to a bachelor’s degree for the
parties’ minor child under only the following terms and conditions:
‘‘(a) College education costs shall be defined as room and board, tuition,
books, registration, laboratory, and special fees, reasonable travel to and
from school, allowance, and ordinary miscellaneous fees.
‘‘(b) College education shall be defined to include but not be limited to
a four (4) year undergraduate program in any college or university, junior
college, technical, vocational, secretarial or trade school.
‘‘(c) The Husband shall have the option of fulfilling this obligation in
whole or part by obtaining any scholarships or grants which are obtained
by the child and the use of his [LTIP] with a current vested value of approxi-
mately $23,000 as of December 21, 2008, and a vested and unvested value
of approximately $76,000. The Husband acknowledges his educational obli-
gation hereunder even if the [LTIP] decreases in value. . . .’’
5
The plaintiff’s counsel claimed during the second day of the hearing that
this language in the motion for contempt was a ‘‘typo,’’ and should have
read the other way around, i.e. that the defendant mischaracterized his
income as bonus salary rather than base salary. It would be nonsensical to
claim that the defendant mischaracterized bonus income as base salary,
which would have resulted in his paying more than he was obligated to
under the separation agreement. Although the plaintiff’s counsel indicated
that she would amend the motion to conform to the proof adduced at the
contempt hearing, no amendment was ever filed.
6
Treating the LTIP as either a base or bonus salary which was included
in paragraph 8.1 of article VIII of the parties’ separation agreement would
have required the defendant to pay either 40 percent or 30 percent of the
LTIP income to the plaintiff.
7
Subsequent to the date of the dissolution of their marriage, on October
1, 2013, the plaintiff and the defendant reached an agreement to modify the
dissolution judgment and eliminate the reduction in the percentages to be
paid from April 1, 2012, to the date that their child attained the age of
twenty-two on September 11, 2015. This agreement, which was in writing,
modified the terms of the judgment, but was never made an order of the
trial court. The defendant testified that he complied with this modification
agreement. The issue of whether the defendant should be credited with any
additional amounts paid pursuant to the terms of this agreement, although
discussed during the contempt hearing, was not addressed by the court and
has not been raised on appeal.
8
Pursuant to the terms of the separation agreement, the plaintiff was not
obligated to pay for any of the college expenses of the parties’ son.
9
This provision for the payment of the son’s college expenses was quite
generous. It does not include any of the limitations that would have been
imposed pursuant to an educational support order entered in accordance
with General Statutes § 46b-56c (f). The defendant agreed to be responsible
for private college tuition, room and board. He also agreed to a host of
additional expenses related to the son’s attendance at college, including
an allowance.
10
In fact, the defendant testified that he used all of the LTIP funds for
college expenses, but that those funds did not cover all of his expenditures
for his son’s college education.