TRACY M. THOMASI
EDWARDJ. THOMASI, SR.
December 5, 2017
for the dissolution of a marriage, and for other relief,
brought to the Superior Court in the judicial district of New
Haven at Meriden and tried to the court, Klatt, J.;
judgment dissolving the marriage and granting certain other
relief; thereafter, the court, Klatt, J., enforced
the parties' domestic relations order, and the plaintiff
appealed to this court; subsequently, the court, Klatt,
J., denied the plaintiff's motion for contempt;
thereafter, the court, Klatt, J., denied the
defendant's motion to modify alimony, and the defendant
appealed to this court; subsequently, the court, Harmon,
J., granted the plaintiff's motion for order.
Reversed in part; further proceedings.
Timothy J. Fitzgerald, with whom was Douglas T. Barall, for
the appellant in AC 39452 and appellee in AC 39814
F. McKeon, for the appellee in AC 39452 and appellant in AC
Keller, Prescott and Bishop, Js.
appeals arise from the dissolution of marriage between the
plaintiff, Tracy M. Thomasi, and the defendant, Edward J.
Thomasi, Sr. In AC 39452, the plaintiff appeals from the
postdissolution order of the trial court regarding the
division of the defendant's defined benefit pension plan.
In her appeal, the plaintiff argues that the court erred in
determining that the term "marital portion, " as
used in the parties' marital dissolution agreement
regarding a division of the defendant's defined benefit
pension plan, clearly and unambiguously provided for the
coverture method to be utilized in calculating the marital
portion. We conclude that the term, under the limited
circumstances of this case, contains a latent ambiguity, and,
accordingly, reverse the judgment of the trial court.
39814, the defendant appeals from the trial court's
postdissolution orders denying his motion for alimony
modification and interpreting the dissolution agreement to
require him to make payments to the plaintiff from his
pension plan retroactive to the date of the marital
dissolution. On this claim, he makes four arguments that the
court erred (1) by finding that he did not experience a
substantial change in his financial circumstances justifying
a downward modification in his alimony obligation; (2) by
declining to consider the plaintiff's receipt of
settlement proceeds from a personal injury lawsuit; (3) by
improperly taking into consideration his receipt of a
pension; and (4) by determining that the dissolution
agreement requires him to make pension payments to the
plaintiff as of the date of the marital dissolution even
though the qualified domestic relations order (QDRO)
contemplated by their agreement was not then in place. We
agree with the trial court that a fair reading of the
agreement requires the defendant to begin making payments
from his pension to the plaintiff as of the date of the
dissolution. We do not believe, however, that the record
supports the court's finding that the defendant's
loss of employment was due to his own fault. Accordingly, we
reverse in part, and affirm in part, the orders of the trial
following facts pertain to both appeals. The defendant began
working for the state of Connecticut in November, 1967, and,
as a state employee, he participated in the Connecticut state
employees retirement system, which features a defined benefit
pension pro-gram. The parties were married on April 5, 1991,
by which time the defendant had accrued twenty-four years and
four months of state service. The defendant retired from
state employment on June 1, 2003, after thirty-seven years
and six months of service. The marriage of the parties was
dissolved on July 22, 2015. Thus, the parties were married
for a total of approximately twenty-four years and three
months. Although the defendant was employed by the state for
a total of 426 months, the parties' marriage spanned 145
months within this period, or approximately 34 percent of the
defendant's total period of employment with the state.
of the parties' property settlement agreement, paragraph
9B of the dissolution agreement provided: "Husband shall
immediately transfer one-half of the marital portion of
[h]usband's [s]tate of Connecticut [p]ension [p]lan that
is currently in pay status to [w]ife valued as of the date of
dissolution and including cost of living over the payment
period. This transfer shall be by a QDRO that shall be
drafted by Attorney Elizabeth McMahon, with the parties
splitting Attorney McMahon's fees equally. The [c]ourt
will retain jurisdiction over this entire [p]aragraph to
effectuate the intent of the parties." (Footnote added.)
appeal, the parties do not dispute that the term
"marital portion" refers to the amount of pension
benefit earned during the course of the marriage, and agree
that the plaintiff is entitled to one half of that amount.
Thus, the term "marital portion" is not patently
ambiguous. The question remains, however, whether the
term, as used in the parties' marital dissolution
agreement, contains a latent ambiguity because there is more
than one method for calculating the marital portion of a
defined benefit pension.
following additional facts and procedural history are
relevant to the resolution of this appeal. Following the
marital dissolution, Attorney McMahon sent a letter dated
September 17, 2015, along with a drafted domestic relations
order to both parties. In the letter, Attorney McMahon stated
in relevant part: "Since the judgment does not specify
how to determine the marital portion, I have used a coverture
fraction . . . . If this approach is not acceptable to
[either party], please let me know and then contact your
attorneys for guidance." The September 17, 2015 domestic
relations order prepared by Attorney McMahon was signed by
the defendant, but not by the plaintiff. On October 26, 2015,
Attorney McMahon recirculated a revised domestic relations
order, dated September 26, 2015, which corrected a
miscalculation in the coverture formula. Later, on December
2, 2015, Attorney McMahon sent a letter to the parties and
their prior attorneys stating in relevant part: "The
judgment does not specify how the marital portion is to be
calculated, and there is more than one way to do so. My role
is to craft an order that is consistent with the judgment; I
do not advocate for either party. If the parties cannot reach
an agreement on their own, they will have to return to court
for clarification of the judgment." Pursuant to a
request from the defendant's prior counsel, Attorney
McMahon drafted a revised domestic relations order on January
11, 2016, that utilized the subtraction method to calculate
the marital portion.
the marital dissolution and over a period of several months,
the parties, through counsel, exchanged correspondence
regarding their disagreement on how to calculate the marital
portion of the defendant's pension in accordance with the
terms of the marital dissolution agreement, and both parties
filed several motions reflecting their disagreement. In
conjunction with these exchanges, the plaintiff received a
correspondence from the State of Connecticut Retirement
Services Division dated December 9, 2014, which had been sent
to the defendant. This letter outlined the defendant's
participation in the state employees retirement system. The
correspondence indicates that as of April 5, 1991, the date
of the parties' marriage, the defendant had accrued the
right to receive $1833 as a monthly pension benefit upon the
normal retirement age of sixty-five. The letter states, as
well, that by the time the defendant retired on June 1, 2003,
his monthly benefit had risen to $5227.49. As of the date of
the parties' marital dissolution, his monthly benefit had
risen to $6937.92 due to cost of living increases built into
the pension plan. Neither the contents nor accuracy of this
letter is disputed by the parties.
hearing on the parties' motions was scheduled for May 23,
2016. At the hearing, and in response to arguments that there
are different methods to calculate the "marital
portion" of the defendant's pension benefits, the
court stated the following: "[A]s far as the court is
concerned, if Attorney McMahon, the person preparing the
qualified domestic relations order says the word marital
portion is ambiguous to her, [t]hen, I think you have an
argument. The bottom line . . . you are going to have to have
[Attorney McMahon] in here, to testify, that [the] term is
ambiguous." The court further opined that it would not
permit testimony from other individuals until it heard from
on July 7, 2016, the court heard testimony from Attorney
McMahon. She stated that when she first reviewed the
dissolution agreement, to her, "marital portion meant
one thing. . . . I have seen other approaches in other cases.
That's not how I do it. So I didn't see an ambiguity
initially, but . . . when a discussion arose and I saw the
parties were . . . taking different approaches, then I
thought either approach could fit what the judgment
[stated]." When the plaintiff's counsel asked
Attorney McMahon "if marital portion, standing alone
without any further formula or description, was ambiguous,
" she replied in the affirmative.
cross-examination by the defendant's counsel, the
following exchange occurred:
"Q. [W]hen you get no other instruction from the court
or from the parties or you see the agreement as you did in
this, do you . . . normally use the coverture method?
"A. I do.
"Q. Okay. The subtraction method, is that a method you
"A. Only if it's specified in the judgment."
same day, the court issued an order, stating: "The court
heard evidence on the motions in limine and finds the
contract in the separation agreement is clear and unambiguous
regarding [paragraph] 9B, ‘marital portion.' The
last sentence of the paragraph, the court determines means
the enforcement of the signing of the [QDRO] by the parties.
The other motions are moot. See transcript . . . for the
elaboration of the court's ruling and findings."
transcript of the July 7, 2016 hearing reveals that the court
stated: "I see nothing ambiguous or hear nothing and
determine nothing ambiguous about the language. It is the
typical language that you see . . . in a situation such . . .
as this. . . . [T]estimony from Attorney McMahon established
just that, there is nothing ambiguous. The parties agreed to
use Attorney McMahon, therefore, they agreed to use her
method of calculation and she clearly testified as to what
her method of calculation was. Moreover, [paragraph] 9C of
the parties' agreement uses the same . . . term, marital
portion, and there's no claim of ambiguity
there." Finding no ambiguity in the language of
the agreement, the court concluded that the September 26,
2015 domestic relations order which employed the coverture
method of determining the marital portion of a monthly
pension benefit was the appropriate version to be enforced.
This appeal followed.
begin with our standard of review. "It is well
established that a separation agreement, incorporated by
reference into a judgment 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
construction 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 connected with
the transaction. . . . If a contract is unambiguous within
its four corners, the determination of what the parties
intended by their contractual commitments 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." (Citations omitted; internal quotation marks
omitted.) Remillard v. Remillard, 297 Conn. 345,
354-55, 999 A.2d 713 (2010).
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. . . . Where the
language of the contract is clear and unambiguous, the
contract is to be given effect according to its terms. A
court will not torture words to import ambiguity where the
ordinary meaning leaves no room for ambiguity . . . .
Similarly, any ambiguity in a contract must emanate from the
language used in the contract rather than from one
party's subjective perception of the terms."
(Internal quotation marks omitted.) Watkins v.
Watkins, 152 Conn.App. 99, 104, 96 A.3d 1264 (2014).
"A word is ambiguous when it is capable of being
interpreted by reasonably well informed persons in either of
two or more senses. . . . Ambiguous can be defined as unclear
or uncertain, or that which is susceptible of more than one
interpretation, or understood in more ways than one."
(Internal quotation marks omitted.) Flaherty v.
Flaherty, 120 Conn.App. 266, 269, 990 A.2d 1274 (2010).
noted, the plaintiff asserts that she believed the parties
intended to calculate the domestic relations order by
utilizing the subtraction method. Attorney McMahon testified
that determination of the marital portion by this method
involves taking "the benefit earned as of the date of
marriage and subtract[ing] it from the benefit earned as of
the date of divorce. . . . [T]he difference would be what
they call the marital portion." See generally E. Brandt,
"Valuation, Allocation, and Distribution of Retirement
Plans at Divorce: Where ...