Hirschfeld v. Machinist

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CAROLINE HIRSCHFELD v. ROBERT B. MACHINIST
(AC 39772)
Keller, Bright and Norcott, 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
rendered on certain postjudgment motions filed by the plaintiff. The
plaintiff had filed a motion for order that requested that the trial court
order the defendant to divide certain assets identified in the defendant’s
financial affidavit and a motion for contempt that alleged that the defen-
dant had failed to pay fully his alimony obligation for a certain year.
Thereafter, the plaintiff filed a motion for order in which she claimed
that the defendant unilaterally had reduced his alimony payment by
relying on a certain provision in the separation agreement, which pro-
vided, inter alia, that the defendant shall pay a reduced percentage of
alimony after a certain step-down date, and that the defendant had
misapplied the language of that provision in light of the mandatory
minimum alimony obligation set forth in another provision. The plaintiff
requested the trial court to order the defendant to pay an arrearage
allegedly owed to her. Following an evidentiary hearing on remand from
prior appeals to this court, the trial court denied in part the plaintiff’s
motion for order seeking the defendant to divide certain assets, denied
in part the plaintiff’s motion for contempt, and denied the plaintiff’s
motion for order concerning the defendant’s alimony obligations, and
the plaintiff appealed to this court. Held:
1. The plaintiff could not prevail on her claim that the trial court improperly
failed to find the defendant in contempt when it denied in part her
motion for order regarding the division of the defendant’s interest in
various investments and limited partnerships, which was based on her
claim that once the court determined that the defendant had underpaid
the plaintiff with respect to her share of the distributions from certain
assets, it should have found that the defendant’s conduct was wilful:
although the separation agreement provided that the parties must divide
in kind the passive investments and limited partnerships shown in the
defendant’s financial affidavit, the plaintiff did not seek a finding of
contempt on the ground that the in kind division did not occur and she
agreed that such a division was not possible, and although the plaintiff
argued that the court should have found the defendant in contempt
because he failed to distribute properly to the plaintiff her share of the
income from the assets pursuant to a modified agreement that the parties
had reached after the court rendered the dissolution judgment, the court
never incorporated the parties’ modified agreement into its dissolution
decree or any other court order, and, thus, that modified agreement
could not have been the basis for a finding of contempt; moreover,
because it was not possible for the defendant to comply with the property
division terms of the separation agreement, the defendant could not
have been found in contempt.
2. The plaintiff’s claim that the trial court erred by not finding the defendant
in contempt for underpaying alimony for a certain year was unavailing;
even though the trial court found that there was no reasonable basis
for the defendant to have made the deduction that resulted in the under-
payment, the plaintiff ignored the court’s additional findings that the
defendant’s argument was made in good faith and was not frivolous,
and that neither party completely understood the court’s orders, and
the plaintiff failed to point to anything in the record that undermined
or was inconsistent with those findings.
3. The trial court did not err in determining that two provisions in the
separation agreement were ambiguous and considering extrinsic evi-
dence when it denied the plaintiff’s motion for order concerning the
defendant’s alleged underpayment of alimony: the defendant’s applica-
tion of the provision that provided for a reduced percentage of alimony
after the step-down date resulted in a lower alimony payment than
the minimum alimony payment amount specified in the other relevant
provision of the separation agreement, that inconsistency in language
between the two provisions of the separation agreement created an
ambiguity in that contract, both parties offered reasonable interpreta-
tions to resolve the inconsistency in the language of those provisions,
and although the plaintiff claimed that the minimum alimony payment
provision was clear and unambiguous, her claim was completely under-
mined by the fact that, during the trial and appellate proceedings in the
present action, she had offered two very different interpretations of the
two provisions; moreover, the extrinsic evidence relied on by the trial
court was properly used to explain an ambiguity that existed in the
separation agreement and, thus, that evidence was properly considered
by the court even though the separation agreement contained a merger
clause and was a fully integrated contract.
4. The plaintiff’s claim that the trial court abused its discretion in failing to
award her attorney’s fees on any of her motions was unavailing; the
plaintiff’s argument was based on her claim that the defendant should
have been held in contempt, but because this court concluded that the
trial court did not err in declining to find the defendant in contempt,
there was no basis to conclude that the court abused its discretion by
not awarding attorney’s fees to the plaintiff.
Argued on January 29—officially released April 24, 2018
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk and tried to the court, Hon.
Stanley Novack, judge trial referee; judgment dissolving
the marriage and granting certain other relief; there-
after, the court, Shay, J., denied the plaintiff’s motion
for order seeking the defendant to divide certain assets
and issued certain other postjudgment orders and
granted the plaintiff’s motion for contempt, and the
plaintiff filed separate appeals to this court, which
reversed the judgment in part and remanded the case
for further proceedings in the first appeal, and reversed
the judgment and remanded the case for further pro-
ceedings in the second appeal; following an evidentiary
hearing on remand, the court, Colin, J., denied in part
the plaintiff’s motion for order seeking the defendant
to divide certain assets, denied in part the plaintiff’s
motion for contempt, and denied the plaintiff’s motion
for order concerning the defendant’s alimony obliga-
tions, and the plaintiff appealed to this court. Affirmed.
Kenneth A. Votre, for the appellant (plaintiff).
Kenneth J. Bartschi, with whom were Dana M.
Hrelic and, on the brief, Melissa Needle, for the appel-
lee (defendant).
Opinion
BRIGHT, J. The plaintiff, Caroline Hirschfeld, appeals
from the judgment of the trial court rendered on three
postjudgment motions filed by the plaintiff in this disso-
lution action. On appeal, the plaintiff claims that the
court erred by: (1) failing to find the defendant, Robert
B. Machinist, in contempt for not complying with the
property division terms of the separation agreement;
(2) failing to find the defendant in contempt for under-
paying alimony in the same year that their marriage
had been dissolved; (3) determining that the parties’
separation agreement was ambiguous and improperly
considering extrinsic evidence in violation of the parol
evidence rule; and (4) failing to award the plaintiff attor-
ney’s fees on her motions. We disagree and affirm the
judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal.1 On February 2, 2007, the parties’
twenty-nine year marriage was dissolved pursuant to a
detailed separation agreement negotiated by the parties
with the assistance of counsel. Two provisions of that
agreement are at the heart of this appeal. First, para-
graph 3.1 of the separation agreement addresses the
defendant’s obligation to pay alimony and child support
to the plaintiff. It provides: ‘‘During the joint lives of
the parties the [defendant] shall pay unallocated ali-
mony and child support to the [plaintiff] according to
the following schedule: a. 40 [percent] of the [defen-
dant’s] first $400,000 of earned income in each calendar
year; provided, however, if alimony is still being paid
by the [defendant] as of January 1, 2014 this percent-
age shall be reduced to 32.5 [percent]. b. 30 [percent]
of the [defendant’s] earned income from $400,001 to
$900,000 in each calendar year. c. 20 [percent] of the
[defendant’s] earned income from $900,001 per year to
$1,500,000 in each calendar year. d. 0 [percent of] the
[defendant’s] earned income that exceeds $1,500,001 in
each calendar year. e. The percentages recited in this
Paragraph 3.1 are non-modifiable by the parties or the
court, except as provided in Paragraph 3.2 (d).2 f. Mini-
mum alimony under [paragraph] 3.1 (a) shall be
$160,000 per year.’’ (Emphasis in original; footnote
added.) Although paragraph 3.1 is typewritten, subpara-
graph (f) was handwritten into the separation
agreement and initialed by both parties.
The second provision of the separation agreement at
issue is paragraph 6.15, which provides: ‘‘The [defen-
dant] and the [plaintiff] shall divide in kind the passive
investments or limited partnerships shown in Section
[III (G)] of the [defendant’s] December 5, 2006 financial
affidavit [(financial affidavit)]. Each of the parties shall
receive 50 [percent] of such investments and limited
partnerships. Each of the parties shall be required to
pay out of their separate assets any capital calls or
clawbacks required as a consequence of such party’s
ownership of such passive investments or limited part-
nerships.’’
Section III (G) of the defendant’s financial affidavit
lists eleven items under the heading ‘‘Passive Invest-
ments/Limited Partnerships Titled in Robert Machinist’s
Name.’’ Five of those items are limited partnerships of
which the defendant listed an ownership interest of less
than 1 percent.
On September 18, 2008, the plaintiff filed a motion
for order, seeking an order that the defendant divide the
assets identified in § III (G) of the defendant’s financial
affidavit. The trial court, Shay, J., denied this motion
on August 24, 2009, without completing the hearing that
began on August 4, 2009. On appeal, this court reversed
the judgment rendered on that motion and remanded
the case for a full evidentiary hearing. Hirschfeld v.
Machinist, 131 Conn. App. 352, 359–61, 29 A.3d 159
(2011).
On remand, the trial court, Colin, J., conducted an
evidentiary hearing on the plaintiff’s motion. In her
motion, the plaintiff alleged that ‘‘the [defendant] has
failed and refused to divide said . . . passive invest-
ments and limited partnerships.’’ She sought an order
requiring such a division, holding the defendant ‘‘finan-
cially responsible for any economic loss incurred by
the [p]laintiff due to [the defendant’s] failure’’ to divide
the assets, awarding her attorney’s fees, and fining the
defendant $1000. Following the evidentiary hearing, the
court found that the plaintiff had failed to prove that
the defendant had ‘‘refused’’ to divide the assets. The
court found, instead, that the defendant had failed to
divide the assets because it was not possible for him
to do so pursuant to the various partnership
agreements. In particular, the court found that ‘‘[i]t is
undisputed that the assets that are the subject of this
motion, and that are listed on the defendant’s financial
affidavit at § [III (G)], could not be divided in kind as
required under the language of the separation
agreement.’’ The court further noted that the parties,
with the assistance of their counsel, had ‘‘essentially
agreed that [because] title to the assets could not be
transferred to the plaintiff, the defendant would instead
pay to the plaintiff [one half] of what he received from
the assets. It took years for this to be accomplished
due to the continued, never-ending saga of these parties
[postdissolution], involving many disputes arising
under the terms of [the separation] agreement. The
defendant did not wrongfully withhold funds from
the plaintiff.’’
The court found that, from the date of the dissolution
through December 31, 2013, the defendant principally
had complied with the parties’ modified agreement
regarding the division of assets but had underpaid the
plaintiff by $9602.62. The court granted the plaintiff’s
motion in part and ordered the defendant to pay the
plaintiff $9602.62 but declined to award her any interest
or attorney’s fees. The court explained that it ‘‘cannot
order the defendant to do something that is a clear legal
impossibility. . . . The parties have essentially worked
out another way to accomplish what they intended.
There is no legal or factual basis to grant much of
the relief the plaintiff seeks other than to order the
defendant to pay to the plaintiff the remaining amount
due in order to effectuate the judgment.’’
At the same hearing, Judge Colin also heard testi-
mony and argument related to the motion for contempt
filed by the plaintiff on September 17, 2010, which
alleged that the defendant had failed to pay fully his
alimony obligation for 2007. Previously, on May 31,
2011, Judge Shay granted the plaintiff’s motion and
awarded her $36,959 in unpaid alimony and attorney’s
fees in the amount of $17,731.97. Nevertheless, the
plaintiff appealed from the judgment because she
believed that she was owed significantly more in ali-
mony but could not determine the full amount of the
underpayment because the court restricted her access
to certain documents related to the defendant’s earned
income. Hirschfeld v. Machinist, 137 Conn. App. 690,
691–92, 50 A.3d 324, cert. denied, 307 Conn. 939, 56 A.3d
950 (2012). This court agreed, reversed the judgment
of the trial court, and remanded the case for further
proceedings. Id., 696.
On remand, Judge Colin conducted a full evidentiary
hearing after the plaintiff was provided access to the
documents she sought. On the basis of the evidence,
the court found that the defendant had underpaid ali-
mony to the plaintiff in 2007 in the amount of $80,335.50.
The underpayment was the result of the defendant
reducing his 2007 income by the $150,025 loss indicated
on his 2007 Schedule K-1 that was associated with his
approximately 12.15 percent interest in a limited liabil-
ity company. Although the court found that there was
no reasonable or factual basis for the defendant to make
such a deduction, it held that ‘‘the evidence does not
clearly and convincingly establish that the defendant’s
failure to pay all of what he owed rose to the level of
a wilful and intentional violation of the court’s orders.
Quite frankly, after hearing the parties testify at length
regarding a number of aspects of their separation
agreement, the court is left with the distinct impression
that neither party completely understands the language
of the [court’s current] orders. [Although] the court has
rejected the defendant’s claim that a loss should be
applied against his earnings in 2007, the argument was
not frivolous and was made in good faith.’’ Conse-
quently, the court granted in part the plaintiff’s motion,
and ordered the defendant to pay the plaintiff
$80,335.50, plus simple interest at the rate of 2 percent
per year from October 15, 2008. The court concluded
that no finding of contempt was warranted and denied
the plaintiff’s request for attorney’s fees.
Finally, the court considered a motion for order filed
by the plaintiff on May 29, 2014, in which she claimed
that the defendant, relying on the language of paragraph
3.1 (a) of the separation agreement, unilaterally reduced
his alimony payment from 40 percent to 32.5 percent
of the first $400,000 of his earned income. Thus, in
February, 2014, the defendant paid the plaintiff
$10,833.33 instead of $13,333.33 that he had paid each
month since the judgment of dissolution. The plaintiff
claimed that the defendant misapplied the language of
paragraph 3.1 (a) in light of the mandatory minimum
alimony obligation in paragraph 3.1 (f). The plaintiff
requested that the court order the defendant to pay the
arrearage owed to her. She also requested an award of
attorney’s fees. Finally, she requested that, if the court
determined that the defendant’s failure to pay was wil-
ful, the defendant ‘‘be adjudged in contempt and
punished.’’
Although the plaintiff argued that the language of
paragraph 3.1 is clear and unambiguous, the defendant
argued that the same language is ambiguous and
requested permission to offer extrinsic evidence as to
what the parties intended when they agreed to the lan-
guage of paragraph 3.1. The plaintiff objected to the
admission of extrinsic evidence. The court agreed with
the defendant and allowed the defendant and his former
attorney to testify as to the interpretation of that para-
graph. The court credited the testimony of the two
witnesses and found that ‘‘the minimum alimony pay-
ment of $160,000 per year was intended to apply only
to the period of time from the date of the [dissolution]
until the ‘step-down’ date of January 1, 2014. It is not
reasonable to read the [separation] agreement any other
way. It is not reasonable to believe that the parties
intended that, after January 1, 2014, the defendant was
still required under [paragraph] 3.1 (a) to pay a mini-
mum of $160,000 when that same article specifically
says that payments ‘shall be reduced to 32.5 [percent]’
of the first $400,000 of income, which is $130,000.’’
Consequently, the court denied the plaintiff’s motion
in its entirety.
This appeal followed. We will address each of the
plaintiff’s claims in turn, starting with the earliest
filed motion.
I
The plaintiff first claims that the court improperly
failed to find the defendant in contempt when it granted
in part her motion for order regarding the division of the
defendant’s interest in various investments and limited
partnerships. According to the plaintiff, once the court
determined that the defendant had underpaid the plain-
tiff by $9602.62 as her share of the distributions from
those assets, it should have concluded that ‘‘[t]he only
reasonable explanation for why the [p]laintiff was not
given the correct share of the [d]efendant’s distribution
is that the [d]efendant wilfully and intentionally did not
tender the correct sum to her.’’ The defendant argues
that he could not be found in contempt because: (1)
the defendant’s division of income from the assets in
question did not violate any order of the court; and (2)
the defendant substantially complied with any putative
order. We agree with the defendant.
We begin with the applicable standard of review and
legal principles. ‘‘Contempt is a disobedience to the
rules and orders of a court which has power to punish
for such an offense. . . . 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. . . .
‘‘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. . . . This is a legal
inquiry subject to de novo review. . . .
‘‘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.’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) Parisi v. Parisi, 315 Conn. 370, 379–80,
107 A.3d 920 (2015). ‘‘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. To constitute contempt, a
party’s conduct must be wilful. . . . Noncompliance
alone will not support a judgment of contempt.’’ (Inter-
nal quotation marks omitted.) McGuire v. McGuire, 102
Conn. App. 79, 82, 924 A.2d 886 (2007).
We start our review with the order that the plaintiff
claims was violated. The plaintiff claims that the defen-
dant violated paragraph 6.15 of the separation
agreement, which was incorporated into the court’s
judgment of dissolution and is, therefore, an order of
the court. Paragraph 6.15 requires the parties to ‘‘divide
in kind the passive investments and limited partnerships
shown in Section [III (G)] of the [defendant’s] December
5, 2006 financial affidavit.’’ Significantly, the plaintiff
did not seek a finding of contempt because the ‘‘in kind’’
division did not occur. In fact, she agrees that such a
division was not possible. Instead, the plaintiff argues
that the court should have found the defendant in con-
tempt because he failed to distribute properly to the
plaintiff her share of the income from the assets pursu-
ant to the agreement the parties reached, following the
court’s judgment of dissolution, when they realized that
an ‘‘in kind’’ division was not possible. The court, how-
ever, never incorporated the parties’ modified
agreement regarding distribution of income from the
§ III (G) assets into its dissolution decree, or any other
court order. Consequently, the plaintiff’s claim fails
because breaching the modified agreement, which was
not an order of the court, cannot be the basis for a
finding of contempt.
Furthermore, the court specifically found, and the
plaintiff does not dispute, that it was impossible for the
defendant to comply with paragraph 6.15. ‘‘The inability
of a contemnor to obey a court order through no fault
of [his] own is a defense to a claim of contempt. . . . In
other words, the act for which the penalty was imposed
cannot constitute contempt if the actor was unable to
obey the order.’’ (Citations omitted.) Tatro v. Tatro, 24
Conn. App. 180, 186, 587 A.2d 154 (1991).
For these reasons, the court properly declined to find
the defendant in contempt even though it ordered him
to pay the plaintiff an additional $9602.62, representing
her share of the income from the § III (G) assets.
II
The plaintiff next claims that the court erred by not
finding the defendant in contempt for underpaying ali-
mony in 2007. The plaintiff argues that because the
court found that ‘‘the defendant failed to establish a
reasonable factual or legal basis, under the circum-
stances of this case, and under the specific language
of the [separation] agreement, for his exclusion from
gross income of an ordinary income loss in the amount
of $150,025,’’ it was an abuse of discretion not to find
the defendant in contempt. The plaintiff argues that
such a conclusion is further compelled because the
court specifically found the defendant’s explanation for
the deduction ‘‘not credible.’’ The defendant argues that
the plaintiff’s argument is based on a selective reading
of the court’s opinion and ignores the court’s finding
that the defendant’s argument was not frivolous and
was made in good faith. We agree with the defendant.
As previously set forth in part I of this opinion: ‘‘A
finding of contempt is a question of fact, and our stan-
dard of review is to determine whether the court abused
its discretion in failing to find that the actions or inac-
tions of the [party] were in contempt of a court order.
To constitute contempt, a party’s conduct must be wil-
ful. . . . Noncompliance alone will not support a judg-
ment of contempt.’’ (Internal quotation marks omitted.)
McGuire v. McGuire, supra, 102 Conn. App. 82. The
defendant is correct that the plaintiff ignores significant
findings of the court. Although the court rejected the
defendant’s argument as not having a reasonable basis,
it nonetheless concluded that the argument was made
in good faith and was not frivolous. Furthermore, after
hearing the testimony of both parties, the court con-
cluded that neither party completely understood the
current court orders. The plaintiff points to nothing in
the record that undermines or is even inconsistent with
the court’s findings. Consequently, there is no basis to
conclude that the court’s findings were clearly errone-
ous or that the court abused its discretion when it
refused to find the defendant in contempt.
III
The plaintiff next claims that the court erred by
determining that paragraph 3.1 of the separation
agreement is ambiguous when it denied her May 29,
2014 motion for order. The plaintiff argues that the
court ‘‘improperly considered parol evidence in inter-
preting the [s]eparation [a]greement, and . . . the
court . . . ignored the plain language of [paragraph]
3.1 (f) and strained the language, interpreting it to say
something that it simply does not.’’ According to the
plaintiff, because the separation agreement contains a
merger clause, and previously was found by this court
to be a fully integrated agreement, the court should not
have considered parol evidence that contradicts the
writing. The plaintiff further argues that it was improper
for the court to consider parol evidence because para-
graph 3.1 (f) is clear and unambiguous. The plaintiff
does not challenge the court’s conclusion, based on the
parol evidence, regarding the parties’ intent.
In response, the defendant argues that paragraph 3.1
(f) cannot be read in isolation but must be read in the
context of paragraph 3.1 as a whole. The defendant
argues that, in context, paragraph 3.1 (f) is not clear
and does not unequivocally express the intent of the
parties. Consequently, he argues, the court correctly
determined that the provision is ambiguous and prop-
erly considered parol evidence. The defendant argues
further that, because the evidence relied on by the court
did not contradict the terms of the separation
agreement, the evidence was not precluded by the sepa-
ration agreement’s merger clause or by the fact that
the separation agreement is a fully integrated contract.
We agree with the defendant.
We begin our analysis by setting forth the applicable
standard of review. ‘‘It is well established that a separa-
tion agreement, incorporated by reference into a judg-
ment of dissolution, is to be regarded and construed
as a contract . . . . Accordingly, our review of a trial
court’s interpretation of a separation agreement is
guided by the general principles governing the construc-
tion of contracts. . . . A contract must be construed to
effectuate the intent of the parties, which is determined
from the language used interpreted in the light of the
situation of the parties and the circumstances con-
nected with the transaction. . . . If a contract is unam-
biguous within its four corners, the determination of
what the parties intended by their contractual commit-
ments is a question of law. . . . When the language of
a contract is ambiguous, [however] the determination
of the parties’ intent is a question of fact, and the trial
court’s interpretation is subject to reversal on appeal
only if it is clearly erroneous. . . . In interpreting con-
tract items, we have repeatedly stated that the intent of
the parties is to be ascertained by a fair and reasonable
construction of the written words and that the language
used must be accorded its common, natural, and ordi-
nary meaning and usage where it can be sensibly applied
to the subject matter of the contract.’’ (Citations omit-
ted; internal quotation marks omitted.) Hirschfeld v.
Machinist, supra, 137 Conn. App. 694–95.
‘‘The court’s determination as to whether a contract is
ambiguous is a question of law; our standard of review,
therefore, is de novo.’’ (Internal quotation marks omit-
ted.) Meridian Partners, LLC v. Dragone Classic
Motorcars, Inc., 171 Conn. App. 355, 364, 157 A.3d 87
(2017). ‘‘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
different interpretations of the language in question
does not necessitate a conclusion that the language is
ambiguous. . . .
‘‘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.) Parisi v. Parisi, supra, 315 Conn. 383–84.
‘‘The parol evidence rule prohibits the use of extrinsic
evidence to vary or contradict the terms of an integrated
written contract. . . . The rule does not forbid the pre-
sentation of parol evidence, but prohibits the use of
such evidence to vary or contradict the terms of the
contract. . . . When a court is faced with an issue of
the construction of a contract containing inconsistent
clauses, the parol evidence rule does not apply. All
relevant evidence is admissible on the issue of contract
interpretation . . . . The only limitation is that the
asserted meaning must be one to which the language
of the writing read in context, is reasonably susceptible
in the light of all of the evidence introduced. . . . The
operative question becomes whether parol evidence is
offered to contradict the writing or to aid in its interpre-
tation.’’ (Citations omitted; internal quotation marks
omitted.) Foley v. Huntington Co., 42 Conn. App. 712,
733–34, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683
A.2d 397 (1996).
‘‘[W]hen the words used in the contract are uncertain
or ambiguous, parol evidence of conversations between
the parties or other circumstances antedating the con-
tract may be used as an aid in the determination of the
intent of the parties which was expressed by the written
words.’’ Kronholm v. Kronholm, 16 Conn. App. 124,
131, 547 A.2d 61 (1988).
Paragraph 3.1 (f) of the separation agreement pro-
vides that ‘‘[m]inimum alimony under [paragraph] 3.1
(a) shall be $160,000 per year.’’ The plaintiff argues that
this language clearly and unambiguously obligates the
defendant always to pay the plaintiff at least $160,000
each year for alimony regardless of his income or any
other requirements of the separation agreement. The
plaintiff, however, reads paragraph 3.1 (f) in isolation,
which is incorrect for two reasons. First, as previously
noted, a ‘‘contract must be viewed in its entirety, with
each provision read in light of the other provisions
. . . .’’ (Internal quotation marks omitted.) Parisi v.
Parisi, supra, 315 Conn. 384. Second, paragraph 3.1 (f)
specifically references paragraph 3.1 (a), and, therefore,
the two provisions must be read together. When para-
graph 3.1 (f) is read in conjunction with paragraph 3.1
(a), the internal inconsistency readily is apparent.
Paragraph 3.1 (a) obligated the defendant to pay 40
percent of the first $400,000 of his annual income as
alimony to the plaintiff until December 31, 2013. As of
January 1, 2014, the percentage to be applied to the
first $400,000 of income is reduced to 32.5 percent, or
$130,000. The question for the court was how to inter-
pret the minimum alimony requirement of $160,000 in
paragraph 3.1 (f) in light of the explicit language in
paragraph 3.1 (a) reducing the maximum payment the
defendant would have to make on his first $400,000 of
income as of January 1, 2014, to $130,000. The court
found that the separation agreement was ambiguous
‘‘due to the inconsistency between subparagraphs (a)
and (f) of [paragraph] 3.1, as each party initially offered
a seemingly plausible explanation for their respective
positions.’’
The plaintiff argued before the trial court that the
language of paragraph 3.1 was intended to always main-
tain minimum alimony in the amount of $160,000, and
that the language in paragraph 3.1 (a) reducing the
percentage from 40 percent to 32.5 percent ‘‘only
changed the amount of alimony paid on income in
excess of $400,000.’’ By way of example, the plaintiff
argued that if the defendant made $550,000 in a calendar
year after January 1, 2014, he ‘‘would pay 32.5 [percent]
on the first $400,000 ($130,000) and 30 [percent] of the
next $150,000 ($45,000), for a total of $175,000.’’ Prior
to January 1, 2014, the same $550,000 in income would
have resulted in the defendant paying alimony of
$205,000. Thus, according to the plaintiff, the ‘‘step-
down’’ language in paragraph 3.1 (a) would not be
superfluous because it still confers the intended benefit
on the defendant of reducing his alimony obligation,
and paragraph 3.1 (f) simply ensured that the plaintiff
would always receive at least $160,000. The defendant
argued that paragraph 3.1 (f) was intended only to apply
until January 1, 2014, when the percentage due on the
first $400,000 of income was reduced to 32.5 percent.
After hearing testimony from witnesses involved in
the negotiation of the separation agreement, the court
accepted the defendant’s proposed interpretation. The
court concluded that the plaintiff’s proposed reading
of paragraph 3.1 was not reasonable because it created
a minimum alimony obligation under paragraph 3.1,
even though the language of paragraph 3.1 (f) is not
that broad. ‘‘Notably, [paragraph] 3.1 (f) expressly notes
that the minimum alimony of $160,000 per year is under
paragraph 3.1 (a), the paragraph that deals with the
defendant’s first $400,000 of earned income; [para-
graph] 3.1 (f) does not say that the minimum alimony
is under all of [paragraph] 3.1 in its entirety.’’ (Emphasis
in original). The court then used the plaintiff’s example
to show that the plaintiff’s interpretation would result
in the defendant paying varying percentages of the first
$400,000 of his income depending on how much he
made. For example, under the plaintiff’s interpretation,
if the defendant earned exactly $400,000, he would pay
40 percent of his income, as opposed to 32.5 percent
on the first $400,000 of his income if he earned $550,000,
as in the plaintiff’s example. The court concluded that
the language of the separation agreement did not sup-
port such an interpretation and that the evidence
adduced at trial did not support a finding that the parties
ever intended such a result. Consequently, the court
held that ‘‘the parties intended the minimum alimony
under [paragraph] 3.1 (f) to apply only to the period
before the ‘step-down’ on January 1, 2014. There is no
provision in the [separation] agreement for a minimum
alimony payment after that date.’’
Because the plaintiff does not claim that the court’s
finding as to the parties’ intent, based on the language
of the separation agreement and the parol evidence,
was clearly erroneous, the only question for this court
is whether the trial court erred in determining that the
separation agreement was ambiguous and, thereafter,
improperly considered parol evidence. We conclude
that the court properly determined that the separation
agreement was ambiguous.
The inconsistency in language between paragraphs
3.1 (a) and 3.1 (f) created ambiguity in the contract.
See Thoma v. Oxford Performance Materials, Inc., 153
Conn. App. 50, 60, 100 A.3d 917 (2014) (‘‘[i]rreconcilable
inconsistent provisions have been treated by this court
and our Supreme Court as creating an ambiguity within
the contract’’). Furthermore, both parties offered rea-
sonable interpretations to resolve the inconsistency in
the language of paragraphs 3.1 (a) and 3.1 (f). In fact,
the plaintiff’s claim that the language of paragraph 3.1
(f) is clear and unambiguous is completely undermined
by the fact that, during the trial and appellate proceed-
ings in the present case, she has offered two very differ-
ent interpretations of that paragraph. Before the trial
court, she argued that paragraphs 3.1 (a) and 3.1 (f)
could be harmonized as set forth in the illustration that
she presented to the court. Then, perhaps recognizing
the same weakness in her argument that the trial court
recognized, the plaintiff has offered a totally different
interpretation on appeal. Instead of arguing that the
two provisions should be read together, the plaintiff
now argues that ‘‘[p]aragraph 3.1 (f) supplants para-
graph 3.1 (a) because that is what it says it does.’’
(Emphasis added.) In support of her most recent inter-
pretation, the plaintiff offers a new illustration that
leads to a markedly different result than does the exam-
ple she offered before the trial court.3 By offering her
own competing interpretations of paragraph 3.1, the
plaintiff effectively has demonstrated that the trial court
was correct in determining that the separation
agreement is ambiguous, and, thereafter, properly
admitted parol evidence to determine the parties’ intent.
The fact that the separation agreement is an inte-
grated contract and contains a merger clause does not
alter this conclusion. As noted, parol evidence, includ-
ing conversations of those involved in drafting the con-
tract, ‘‘may be used as an aid in the determination of
the intent of the parties which was expressed by the
written words.’’ Kronholm v. Kronholm, supra, 16
Conn. App. 131; see also Brett Stone Painting & Main-
tenance, LLC v. New England Bank, 143 Conn. App.
671, 687, 72 A.3d 1121 (2013) (‘‘[p]arol evidence may
be admissible to explain ambiguities that exist in the
contract’’ [internal quotation marks omitted]). Although
the plaintiff contends that the court used parol evidence
‘‘to vary or contradict’’ paragraph 3.1 (f) of the parties’
separation agreement, this contention is inaccurate.
The court used the parol evidence, including the testi-
mony of the defendant and his former attorney, to
resolve the inconsistency between paragraphs 3.1 (a)
and 3.1 (f). Thus, the court properly considered the
parol evidence to explain an ambiguity that existed in
the separation agreement. See Brett Stone Painting &
Maintenance, LLC v. New England Bank, supra, 687.
Because we conclude that paragraph 3.1 of the sepa-
ration agreement is ambiguous, the court was required
to resolve the ambiguity by considering extrinsic evi-
dence and making factual findings as to the parties’
intent. Consequently, we conclude that the court prop-
erly considered parol evidence in order to determine
the parties’ intent.
IV
Finally, the plaintiff claims that the court abused its
discretion in failing to award her attorney’s fees on any
of her motions. This claim requires little discussion.
The plaintiff’s argument is premised on her preceding
claims that the defendant should have been held in
contempt pursuant to the three motions before the
court because his conduct was wilful and intentional.
In short, because we conclude that the trial court did
not err in declining to find the defendant in contempt
of court, there is no basis to conclude that the court
abused its discretion by not awarding the plaintiff attor-
ney’s fees.4
The judgment is affirmed.
In this opinion the other judges concurred.
1
The parties have been in almost continuous litigation since their marriage
was dissolved. Between March 6, 2007, and June 22, 2017, more than 300
entries were added to the case docket, including more than 150 posttrial
motions, and the parties have been before this court on four other occasions
and before our Supreme Court twice. We have limited our discussion of the
procedural history of the parties’ dispute to that which relates to the issues
now before us.
2
Neither party claims that the exception in paragraph 3.2 (d) was at issue
before the court or is relevant to this appeal.
3
Moreover, the plaintiff’s new interpretation would render paragraph 3.1
(a) superfluous. Such an interpretation is contrary to the fundamental princi-
ple that ‘‘in construing contracts, we give effect to all the language included
therein, as the law of contract interpretation . . . militates against interpre-
ting a contract in a way that renders a provision superfluous.’’ (Internal
quotation marks omitted.) EH Investment Co., LLC v. Chappo, LLC, 174
Conn. App. 344, 358, 166 A.3d 800 (2017).
4
To the extent the plaintiff also is claiming that, in the absence of a
finding of contempt, the failure to award attorney’s fees was an abuse of
discretion because it undermines the court’s previous financial orders, we
agree with the defendant that such a claim was not raised before the trial
court. Accordingly, we decline to review it for the first time on appeal. See
DiGiuseppe v. DiGiuseppe, 174 Conn. App. 855, 864, 167 A.3d 411 (2017)
(‘‘[w]e will not promote a Kafkaesque academic test by which [a trial judge]
may be determined on appeal to have failed because of questions never
asked of [him] or issues never clearly presented to [him]’’ [internal quotation
marks omitted]).