JAMES K. GROGAN
April 15, 2019
for the dissolution of marriage, and for other relief,
brought to the Superior Court in the judicial district of
Hartford and tried to the court, Olear, J.; judgment
dissolving the marriage and granting certain other relief in
accordance with the parties' separation agreement;
thereafter, the court, Nastri, J., denied the
defendant's motion for contempt and the plaintiff's
request for attorney's fees and costs, and the defendant
appealed and the plaintiff cross appealed to this court.
L. Katz, with whom was Melissa Gagne, for the appellant-cross
V. Connolly, for the appellee-cross appellant (plaintiff).
Lavine, Bright and Bear, Js.
defendant, Jill Penza, appeals from the judgment denying her
postdissolution motion for contempt. On appeal, she claims
that the trial court improperly concluded that the plaintiff,
James K. Grogan, had not violated a ‘‘true
up'' alimony obligation contained in the parties'
separation agreement. The plaintiff cross appeals, claiming
that the trial court abused its discretion in denying his
request for statutory attorney's fees incurred in
defending against the defendant's motion for contempt. We
disagree with the parties' claims and, accordingly,
affirm the judgment of the trial court.
following facts, as found by the trial court, and procedural
history are relevant to our resolution of this appeal and
cross appeal. On September 25, 2013, the parties, each of
whom is an attorney, and each of whom was represented by an
attorney, entered into a twenty-three page divorce settlement
agreement (agreement). On September 27, 2013, the court,
Olear, J., dissolved the parties' marriage. At
the time of the dissolution, the plaintiff was a partner at
the law firm of McCormick, Paulding & Huber, LLP (MPH).
In accordance with General Statutes § 46b-66, the
judgment of dissolution incorporated by reference the
agreement. Article I of the agreement addressed the
plaintiff's various alimony obligations and specified how
to calculate such alimony.
1.1 of the agreement provided in relevant part:
‘‘The alimony payments detailed [herein] are
based on an annual earned income/earning capacity attributed
to [the defendant] of $35, 000 and the [plaintiff's]
‘annual income from employment' (hereinafter
‘income') which, for purposes of the alimony
formula[s] herein, is presently defined as [l]ine 1 on [the
plaintiff's] annual [schedule] K-1 from [MPH]. The
alimony paid by the [plaintiff] to the [defendant] shall be
paid in three components (monthly . . . and quarterly
payments totaling $160, 000 based on the first $550, 000 of
[the plaintiff's] income, and a year-end ‘true
up' alimony payment based on gross income of the
[plaintiff] between $550, 000 and $750, 000).''
true up alimony formula applicable in the present case was
set forth in § 1.1 D of the agreement, which provided in
relevant part: ‘‘For the tax year 2014 and
thereafter, [the plaintiff] shall pay ‘true up'
alimony to [the defendant] of 25 [percent] of the amount of
[the plaintiff's] income between $550, 000 and $700, 000
as reflected on [l]ine 1 of [the plaintiff's schedule]
K-1 and 20 [percent] of any income between $700, 000 and
$750, 000. For example, if [the plaintiff's schedule] K-1
for 2014 shows [l]ine 1 income of $775, 000, [the plaintiff]
would owe [the defendant] additional ‘true up'
alimony in the amount of $47, 500 . . . .''
June, 2015, the plaintiff sold his interest in MPH, where he
had been a partner for over twenty years, and created a new
law firm, Grogan, Tuccillo & Vanderleeden, LLP (GTV),
located in Springfield, Massachusetts. GTV, like MPH, was
structured as a partnership. As a result, the plaintiff
received two schedule K-1s for the 2015 tax year, one from
MPH covering the period between January 1 and May 31, 2015,
and one from GTV covering the period between June 1 and
December 31, 2015. The schedule K-1 issued by MPH listed
negative $93, 463 of ‘‘[o]rdinary business income
(loss)'' on line 1 and $605, 000 of
‘‘[g]uaranteed payments'' on line
4. The schedule K-1 issued by GTV listed
$103, 017 on line 1 and $127, 178 on line 4. In previous
years, when he was employed by MPH, all of the income the
plaintiff received from employment had been reported on line
1 of his schedule K-1s.
31, 2017, the defendant filed a motion for contempt alleging
that the plaintiff wilfully had violated the parties'
agreement by failing to pay her true up alimony for the 2015
tax year. More specifically, the defendant claimed that the
plaintiff's 2015 ‘‘annual income from
employment'' was $741, 732-the total of lines 1 and 4
from both schedule K-1s-and that, consequently, she was
entitled to $45, 846 of true up alimony pursuant to §
1.1 D of the agreement. In his memorandum of law in
opposition to the motion, the plaintiff countered that §
1.1 D clearly and unambiguously provided that his annual
income from employment was to be determined solely by
reference to line 1 of his schedule K-1s. Accordingly, the
plaintiff argued that he owed no true up alimony for 2015
because his total line 1 income across both schedule K-1s
amounted to only $9554-well below the $550, 000 threshold
required by the agreement. The plaintiff therefore requested
that the court deny the defendant's motion for contempt
and award him costs and reasonable attorney's fees
pursuant to General Statutes § 46b-87.
trial court, Nastri, J., conducted an evidentiary
hearing on the defendant's motion for contempt on
September 28 and October 13, 2017. On December 4, 2017,
following posttrial briefing by the parties, the court issued
a memorandum of decision holding that § 1.1 D of the
agreement was clear and unambiguous and limited the
plaintiff's income from his employment for purposes of
calculating true up alimony to the amount listed on line 1 of
the plaintiff's schedule K-1. The court rejected the
defendant's argument that it should look to lines 1 and 4
of the 2015 schedule K-1s to determine the total of the
plaintiff's income from his employment. It explained that
the defendant's argument, that the amounts listed on both
lines 1 and 4 of the schedule K-1s should be considered
income, required the court to ignore the language in §
1.1 C and D of the agreement. Accordingly, the court denied
the defendant's motion, but it declined to award
attorney's fees to the plaintiff. This appeal and cross
appeal, the defendant claims that the trial court improperly
concluded that the plaintiff had not violated the true up
alimony provision contained in § 1.1 D of the agreement.
Her principal argument is that the court erred in determining
that only income listed on line 1 of a schedule K-1 may be
considered for purposes of calculating true up alimony due to
her under § 1.1 D of the agreement. We disagree.
begin with general principles and the applicable standards of
review. ‘‘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 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 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. . . .
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. . . .
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 susceptible to more
than one reasonable interpretation, the contract is
ambiguous.'' (Citation omitted; emphasis omitted;
internal quotation marks omitted.) Parisi v.
Parisi, 315 Conn. 370, 383-84, 107 A.3d 920 (2015);
see also Nation-Bailey v. Bailey, 316 Conn. 182,
191-92, 112 A.3d 144 (2015); Dejana v. Dejana, 176
Conn.App. 104, 115, 168 A.3d 595 (when language in question
is clear and unambiguous, contract must be given effect
according to its terms, and determination of parties'
intent is question of law), cert. denied, 327 Conn. 977, 174
A.3d 195 (2017). ‘‘Furthermore, [i]n giving
meaning to the language of a contract, we presume that the
parties did not intend to create an absurd result.''
(Internal quotation marks omitted.) South End Plaza
Assn., Inc. v. Cote, 52 Conn.App. 374,
378, 727 A.2d 231 (1999).
defendant argues that the court's interpretation of the
true up alimony provision set forth in § 1.1 D was
flawed because it rendered superfluous the
‘‘presently defined'' language in §
1.1, which, according to the defendant, applies to subsection
D. More specifically, the defendant contends that,
‘‘[b]y specifically stating that income was
‘presently defined' as line 1 of [the
defendant's] schedule K-1, it is abundantly clear that
the parties did not intend to permanently define income as
line 1 of a schedule K-1.'' (Emphasis omitted.)
Rather, in the defendant's view, this language indicates
that the reference to line 1 income ‘‘was an
example and [was] not meant to be determinative.''
Thus, according to the defendant, ‘‘[t]he
placement of the plaintiff's earnings, whether on line 4
or line 1 of the schedule K-1 or any other income reporting
form, should not bar recovery of true up alimony.''
(Internal quotation marks omitted.)
1.1 of the parties' agreement sets forth the definition
of the plaintiff's income ‘‘for purposes
of the alimony formula herein . . .
.'' (Emphasis added.) The only alimony
formulas in the agreement that refer to the plaintiff's
income are the true up alimony formulas contained in
subsections C and D of § 1.1. Pursuant to § 1.1,
the income to be used to calculate the plaintiff's true
up alimony obligations under these subsections
‘‘is presently defined as [l]ine 1 on
[the plaintiff's] annual [schedule] K-1 from
[MPH].'' (Emphasis added.) We disagree with the
defendant, however, that this ‘‘presently
defined'' language requires that the reference to
line1income was meant merely to be an example of one type of
employment income that could be considered, at the
defendant's election to do so, with other types of
alleged income in calculating the plaintiff's true up
alimony obligation. This claim is belied by the clear and
unambiguous language of § 1.1 D, which provides that
‘‘[f]or the tax year 2014 and thereafter, [the
plaintiff] shall pay ‘true up' alimony to [the
defendant] of 25 [percent] of the amount of [his] income
between $550, 000 and $700, 000 as reflected on [l]ine 1 of
[the plaintiff's schedule] K-1 and 20 [percent] of any
income between $700, 000 and $750, 000. For example, if [the
plaintiff's schedule] K-1 for 2014 shows [l]ine 1 income
of $775, 000, [the plaintiff] would owe [the defendant]
additional ‘true up' alimony in the amount of $47,
500 . . . .'' A court cannot ignore or disregard the
language of the agreement because in hindsight an additional
or more expansive term would have been better for one of the
parties. See, e.g., Crews v. Crews, 295
Conn. 153, 169, 989 A.2d 1060 (2010); Chang v.
Chang, 170 Conn.App. 822, 828, 155 A.3d 1272, cert.
denied, 325 Conn. 910, 158 A.3d 321 (2017).
extent that there is any conflict in the reasonable
interpretation of the language of the agreement set forth in
§ 1.1 and § 1.1 D, which we do not credit, the more
specific language in § 1.1 D controls over the more
general language in § 1.1: ‘‘[I]t has been
well settled that ‘the particular language of a
contract must prevail over the general.' ''
Issler v.Issler, 250 Conn. 226, 237 n.12,
737 A.2d 383 (1999), see also Bead Chain Mfg. Co.
v.Saxton Products, Inc., ...