WENDY J. DEJANA v. MICHAEL DEJANA
(AC 38884)
Connecticut Appellate Court
September 5, 2017
Keller, Prescott and Beach, Js.
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Syllabus
The plaintiff, whose marriage to the defendant previously had been dissolved, 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, thereforе, 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 entitled 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 hаving 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 district 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.
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 postjudgment motion for contempt against the defendant, Michael Dejana. On appeal, the plaintiff claims that the court, in declining to hold the defendant in сontempt, improperly interpreted the parties’ separation agreement, which had been incorporated into the judgment 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 relevant 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 thеir 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 unallocated 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
“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 approximately $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 College. [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] education 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 separation 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 compensation which was comprised of mon[eys] declared as ‘income’ on his income tax return from [the LTIP].
“[The plaintiff] called Dr. Daniel Purushothan in support 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 pursuant to the [LTIP] established by his [former] employer, [the bank]... Purushothan testified that, as an individual 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
“Notwithstanding the testimony of... Purushothan, 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 remаining, 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 defendant 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.е., 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 preserved 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 quotаtion 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 defendant owed her apрroximately $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 representations 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
“The Court: Isn‘t the plaintiff‘s claim a matter of setting 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 paycheck, 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 hе 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.
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 compensation for additional unallocated alimony and child support 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 interrelated.
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 intеnt of the parties from the language used interpreted in the light of the situation of the parties and the circumstances connected 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 language 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 аmbiguous, the determination of the parties’ intent is a question of fact... When the language is clear and unambiguous, however, the contract must
“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 рarties 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 susceptible to more than one reasonable interpretation, the contract is ambiguous.” (Internal quotation marks omitted.) Nation-Bailey v. Bailey, 316 Conn. 182, 192, 112 A.3d 144 (2015).
The plaintiff claims that the court improperly interpreted the parties’ separation agreement as (1) requiring the defendant to pay unallocated alimony and child support based upon a percentage of his base sаlary 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 employer‘s LTIP to fund the private college education of the parties’ son. The defendant argues that the court properly interpreted the plain and unambiguous language of the separation agreement as requiring the defendant, under
At the time of the parties’ divorce in 2009, the defendant 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 compensation, specifically, the defendant‘s base salary and annual incentive cash bonus, are indisputably addressed in
The dispute centers around whether, in addition to the annual incentive cash bonus that the defendant received every December 15, the term “bonus,” in
The plaintiff relies on a broad definition of “bonus,” the word used in
The defendant counters that although the LTIP generally might be considered as a form of bonus compensation, the court correctly construed the specific language of
The record reveals that the court in the present case determined that the contractual language in
Although the plaintiff would like to have the expansive general definition of the word “bonus” applied to incorporate the LTIP funds into
We further note that the separation agreement, in
The court correctly determined that the language in
The judgment is affirmed.
In this opinion the other judges concurred.