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DiGiuseppe v. DiGiuseppe

Court of Appeals of Connecticut

July 25, 2017

ELIZABETH G. DIGIUSEPPE
v.
VINCENT J. DIGIUSEPPE

         SYLLABUS

          Argued March 22, 2017

          Steven H. Levy, for the appellant (defendant).

          Campbell D. Barrett, with whom were Johanna S. Katz and, on the brief, Jon T. Kukucka, for the appellee (plaintiff).

          Lavine, Sheldon and Keller, Js.

         The defendant, whose marriage to the plaintiff previously had been dissolved, appealed to this court from the judgment of the trial court denying the plaintiff's motion for contempt and ordering the defendant to pay what he owed for the college expenses of his two minor children. As part of their separation agreement, the parties had agreed that should certain education accounts for each child become insufficient, the defendant would be solely responsible for the additional college education expenses. When the defendant failed to pay for the children's college expenses, the plaintiff filed the motion for contempt.

         Held:

         1. This court declined to review the defendant's claim that the trial court erred in not finding a latent ambiguity in the college expenses provision of the parties' agreement when examining it in conjunction with another document that was signed by the parties regarding education support orders under statute (§ 46b-56c), the defendant having failed to distinctly raise the claim at trial; a careful review of the record demonstrated that the defendant did not assert before the trial court any claim concerning a latent ambiguity in the agreement created by the other document that was executed by the parties, but rather that he based his objection to the plaintiff's motion for contempt on two entirely different arguments, and this court was under no obligation to consider a claim that was not distinctly raised at the trial level.

         2. The defendant's claim that the trial court erred in finding that he was responsible for all of his children's college expenses was not reviewable; although the defendant claimed on appeal that the parties' agreement was unenforceable because it contained no reasonable limitations on his liability for the college expenses, he did not inquire of the trial court as to the exact limits of the college expenses for which he was liable, nor did he argue that the provision in the agreement for the payment of college expenses was so uncertain and indefinite as to be unenforceable, and, therefore, he failed to preserve the claim by distinctly raising it before the trial court.

         Procedural History

         Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Litchfield, where the court, Ginocchio, J., rendered judgment dissolving the marriage and granting certain relief in accordance with the parties' separation agreement; thereafter, the court, Hon. Elizabeth A. Gallagher, judge trial referee, denied the plaintiff's motion for contempt and issued certain orders, and the defendant appealed to this court. Affirmed.

          OPINION

          KELLER, J.

         The defendant, Vincent J. DiGiuseppe, appeals from the judgment of the trial court rendered when it denied a postdissolution motion for contempt filed by the plaintiff, Elizabeth G. DiGiuseppe, and ordered him to pay what he owed for his children's college expenses. The issue on appeal concerns the extent of the defendant's obligation to pay for the college expenses of the parties' two children beyond what is covered by Connecticut Higher Education Trust (CHET) accounts that the parties had established for each of them. The defendant claims that the court erred in (1) not finding a latent ambiguity in the provision of the parties' separation agreement (agreement) regarding college expenses when examining it in conjunction with another document signed by the parties entitled ‘‘Education Support Orders [General Statutes § 46b-56c]'' (form), which would render the agreement unenforceable, and (2) its determination that the defendant is responsible for 100 percent of college expenses of the two children without limitation. We conclude that the defendant failed to preserve either of his claims before the trial court, and, therefore, we decline to review them.

         The following facts, as found by the court in its written memorandum of decision, and procedural history are relevant to this appeal: ‘‘The parties were divorced on June 25, 2013. Their [agreement] contained a provision for the payment of the educational expenses of their two children, who are currently [nineteen] and [eighteen] years old. [The plaintiff] has moved for contempt based on [the defendant's] failure to pay the children's college expenses. . . .

         ‘‘The parties do not communicate. When [the plaintiff] learned that [the defendant] was refusing to pay the children's college expenses, [the plaintiff] attempted to contact [the defendant], but he refused to communicate with her.

         ‘‘At the time of the hearing on the motion for contempt, the parties' son was entering his second year at Bentley College, and their daughter was hoping to begin her freshman year at Syracuse University. The provisions for the postmajority educational expenses are set forth in paragraph 8 of the parties' [separation] agreement.

         ‘‘Paragraph 8.1 of the parties' separation agreement provides: ‘The parties established CHET accounts for the benefit of each of their children. These CHET accounts shall be used for the college education of both children. Should the CHET accounts be insufficient to educate both of the parties' children, the [defendant] shall be solely responsible for the additional college education expenses for the benefit of the parties' children.'

         ‘‘Paragraph 8.2 provides: ‘In the event there is a balance in the CHET accounts after the children have completed their college educations, the parties may divide any remaining balance equally. However, in the event the [defendant] contributes any additional funds to these accounts after the date of dissolution, the [defendant] shall be entitled to a refund of these ...


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