Puff v. Puff , 177 Conn. App. 103 ( 2017 )

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CLAUDIA PUFF v. GREGORY PUFF
(AC 37640)
DiPentima, C. J., and Beach and Bishop, Js.
Syllabus
The plaintiff, whose marriage to the defendant previously had been dis-
solved, appealed to this court from certain postjudgment orders of the
trial court modifying alimony and finding her in contempt. The plaintiff
had filed a motion seeking an upward modification of alimony on the
basis of, inter alia, a diagnosis of multiple sclerosis. At a subsequent
hearing, counsel for the defendant orally presented an agreement
between the parties. Pursuant to the agreement, the defendant was to
pay $10,000 per month for 120 months in periodic alimony and the
plaintiff could, in turn, choose to assign those payments to a special
needs trust. The agreement indicated that the defendant was to be named
a residual beneficiary to the trust and that the plaintiff was required to
secure, or endeavor to secure, a legal opinion that such an arrangement
would not affect the defendant’s federal tax deductions. Finally, the
agreement contained a nondisparagement clause and required the defen-
dant to retract certain statements. The parties also indicated that, after
consulting with experts on trust formation and taxation, they intended
to submit a written document embodying the agreement to the court.
The court then canvassed the parties, entered a finding that the terms
presented were fair and equitable under the circumstances, and
approved the oral agreement. The plaintiff subsequently filed a motion
to open the court’s order on the agreement, arguing that the trust contem-
plated by the parties would not qualify as a special needs trust under
the law and that the defendant would not be able to deduct payments
from his taxable income as alimony. Following certain subsequent dis-
agreements between the parties, the court reviewed the transcript of
the hearing and reduced the terms of the parties’ previous oral agreement
into a written decision. The defendant subsequently filed a motion for
contempt asserting, inter alia, that the plaintiff had failed to obtain an
opinion letter regarding the tax deductibility of the defendant’s alimony
payments as required by the agreement. In response, the plaintiff argued
that she had tried but was unable to obtain such a letter because the
defendant’s status as a residual beneficiary likely jeopardized his right
to deduct alimony payments. The trial court subsequently granted the
motion for contempt, concluding that the plaintiff had wilfully violated
its order. On the plaintiff’s appeal to this court, held:
1. The trial court did not err in concluding that the parties’ oral agreement
was an enforceable, binding agreement and not merely an agreement
to agree: the parties had expressed an intent to resolve the matter at
the hearing and, notwithstanding the provision requiring consultation
with experts, sought to have the court approve their oral agreement as
an enforceable order; moreover, the parties had reached an agreement
on the relevant material terms including the amount of alimony, the
method of payment, the retraction of statements by the defendant, and
the nondisparagement clause.
2. The plaintiff could not prevail on her claim that the trial court improperly
modified the parties’ oral agreement when reducing it to a written deci-
sion; the court’s written decision did not modify or improperly rewrite
the oral agreement between the parties, but simply memorialized the
terms expressed at the hearing, and the court did not act improperly
by not including in its written decision a term requiring the plaintiff to
receive tax free alimony because such a term was not included in parties’
original oral agreement.
3. The plaintiff could not prevail on her claim that the trial court did not
adequately canvass her, as required by statute (§ 46b-66), at the hearing
at which the parties presented the oral agreement and at the proceeding
at which the court had reduced the oral agreement to a written order:
the court’s canvass following presentation of the oral agreement was
sufficient to satisfy the requirements of § 46-66, which required the court
to ensure that the terms were fair and equitable under the circumstances,
as the financial affidavits were set forth in the record, the transcript of
the hearing was replete with references to the plaintiff’s disability, the
plaintiff’s counsel had the opportunity to present additional information
to the court, and the court’s canvass revealed that the plaintiff had
knowingly entered into the agreement; moreover, the court was not
required by § 46-66 to conduct an additional canvass after issuing its
written decision, which merely summarized the parties’ previous oral
agreement and did not alter its terms.
4. The trial court improperly granted the defendant’s postjudgment motion
for contempt; given that the plaintiff was required under the agreement
to secure, or endeavor to secure, an opinion letter regarding the tax
deductibility of the defendant’s alimony payments, and given the undis-
puted fact that the plaintiff had made at least some effort to secure the
opinion letter required under the agreement, this court was left with
the definite and firm conviction that the trial court’s finding of contempt
was clearly erroneous.
Argued March 16—officially released October 10, 2017
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, where the court, Grogins, J.,
rendered judgment dissolving the marriage and granting
certain other relief in accordance with the parties’ sepa-
ration agreement; thereafter, the court, Emons, J.,
granted the plaintiff’s motion for modification; subse-
quently, the court, Emons, J., granted the plaintiff’s
motion to open; thereafter, the court, Heller, J., issued
certain orders in accordance with the parties’ stipula-
tion; subsequently, the court, Heller, J., denied the plain-
tiff’s motion to reargue, and the plaintiff appealed to
this court; thereafter, the court, Tindill, J., granted the
defendant’s motion for contempt, and the plaintiff filed
an amended appeal. Reversed in part; judgment
directed.
Samuel V. Schoonmaker IV, with whom, on the brief,
was Wendy Dunne DiChristina, for the appellant
(plaintiff).
Edward M. Kweskin, with whom were Sarah Glea-
son and, on the brief, Zachary J. Phillipps and Leonard
M. Braman, for the appellee (defendant).
Opinion
BEACH, J. The plaintiff, Claudia Puff, appeals from
the orders of the trial court entered in connection with
various motions following the dissolution of her mar-
riage to the defendant, Gregory Puff. The plaintiff claims
that the court erred in (1) approving a stipulated
agreement between the parties, (2) modifying the par-
ties’ agreement, (3) approving the parties’ agreement
without first conducting an adequate canvass pursuant
to General Statutes § 46b-66, and (4) granting the defen-
dant’s motion for contempt. We agree with the plaintiff’s
fourth claim and disagree with her other claims. Accord-
ingly, we affirm in part, and reverse in part, the judgment
of the trial court.
The following facts, as they appear in the record,
and procedural history are relevant. The parties were
married in 1988. There were no children issue of the
marriage. In September, 2002, the plaintiff commenced
an action for dissolution of the marriage. On December
19, 2002, the court, Grogins, J., rendered judgment dis-
solving the parties’ marriage. The judgment of dissolu-
tion incorporated by reference a separation agreement,
which provided that the defendant was to pay the plain-
tiff periodic alimony of $5900 per month, and an addi-
tional $5000 each August and December, for ten years,
subject to earlier termination for reasons not rele-
vant here.
In March, 2009, the plaintiff filed a motion for an
upward modification of alimony as to amount and dura-
tion, on the bases of increases in the defendant’s income
and in her living expenses. In June, 2010, the plaintiff
filed an amended motion for modification of alimony
on the additional basis of her deteriorating health; she
recently had received a diagnosis of multiple sclerosis.
On February 28, 2012, the court, Emons, J., granted the
motion for modification, but ordered that the increase
in duration and amount was nonmodifiable. The plain-
tiff filed a motion to open and set aside the February
28, 2012 decision. On April 9, 2013, the court, Emons,
J., granted the plaintiff’s motion to open and vacated
its February 28, 2012 decision for the purpose of hearing
additional evidence.
On February 19, 2014, a hearing was held before
Judge Heller. During that hearing, the defendant’s attor-
ney stated the terms of a stipulated agreement regarding
the plaintiff’s motion to modify and other motions. The
plaintiff’s attorney stated that the parties were relying
on experts to create a special needs trust into which
the defendant would pay alimony, but that ‘‘[there are]
some terms that we are just unfamiliar with . . . so
the concept will be put on the record, but the actual
term of how that’s [going to] take place is not [going
to] be put on the record.’’ He explained that the parties
would ‘‘work on the details of the writing, and . . .
submit it at a later date.’’ The defendant’s attorney said,
‘‘This is . . . a postjudgment stipulation. It comes upon
the plaintiff’s motion for modification of alimony. And
so the agreement is as follows . . . .’’ He proceeded
to state the agreement, which contained twelve para-
graphs, on the record.
The court then canvassed both parties. The plaintiff
indicated that she had reviewed the terms of the
agreement with her attorney, that she understood all
of the provisions and that she believed the agreement
to be fair and equitable. The court stated that it found
the stipulated agreement to be fair and equitable and
approved the agreement.
The defendant filed a motion on May 16, 2014,
requesting the court to approve his proposed draft
reducing, into writing, the terms of the oral stipulation
presented at the February 19, 2014 hearing. The court,
Heller, J., held a hearing on the defendant’s motion on
June 17, 2014. The plaintiff objected on the ground
that the stipulation presented at the February 19, 2014
hearing should be vacated because it was impossible
to execute. The court stated that it would compare
the draft of the agreement with the transcript of the
February 19, 2014 proceedings, and it continued the
matter to a later date.
On June 18, 2014, the plaintiff filed a motion to open
and vacate the February 19, 2014 order. In that motion,
the plaintiff argued that the trust contemplated in the
February 19, 2014 oral stipulation could not qualify
under the law as a special needs trust in the circum-
stances presented and that the defendant would not be
able to deduct the $10,000 monthly payment required
under the agreement from his gross income for the
purpose of reducing his taxes.
The defendant’s attorney presented a revised draft
of the stipulation at a hearing before Judge Heller on
August 18, 2014. The plaintiff’s attorney argued that
the revised draft stipulation was inconsistent with the
February 19, 2014 oral stipulation, and that the terms
of the February 19, 2014 oral stipulation could not be
implemented according to trust and tax law. The court
stated: ‘‘I think what the parties believed at the time
[of the February 19, 2014 hearing] may not be what
they believe today. But what I will do is enter an order
and turn the stipulation into a written order of the court.
. . . And then we’ll proceed with [the plaintiff’s motion
to open and vacate the February 19, 2014 order].’’
On November 17, 2014, the court, Heller, J., reduced
the February 19, 2014 oral stipulation to a written order
entitled ‘‘memorandum of decision on postjudgment
motions resolved by stipulation approved and so
ordered on February 19, 2014.’’ The document set forth
the terms of the stipulated agreement stated on the
record at the February 19, 2014 hearing. Several para-
graphs are especially germane to the issues on appeal.
Paragraph one provided that the defendant was to pay
to the plaintiff as periodic alimony $10,000 per month
for 120 months and that the plaintiff had the right to
assign the alimony to a special needs trust, subject to
the defendant’s ability to deduct the alimony from his
gross income under the Internal Revenue Code. Para-
graph six provided that the defendant was to be a resid-
ual beneficiary of the special needs trust in the same
proportion as the sum of the alimony payments made
or assigned to the special needs trust was to the total
contributions to the special needs trust from all sources.
Paragraph eight provided that the plaintiff was to pre-
pare a list of the defendant’s statements that she
deemed ‘‘hurtful or nasty,’’ that the defendant was to
retract those statements, that those retractions would
not be deemed admissions, and that neither party was
to disparage the other personally or professionally.
Paragraph nine provided that the plaintiff ‘‘shall imme-
diately secure, or endeavor to secure, a legal opinion
to the effect that any action taken by the plaintiff to
assign the alimony payments to the special needs trust
does not affect the deductibility of such payments by
the defendant under the tax laws of the United States.’’
Paragraph ten gave the defendant the ability to recoup
certain amounts from the special needs trust in the
event that he was unable to deduct the alimony pay-
ments from his gross income. Paragraph eleven pro-
vided that the parties’ February 19, 2014 oral stipulation
was to supersede all prior orders in the case.
The court’s recitation of the agreement was made
available to the parties at a hearing on November 18,
2014, in connection with the plaintiff’s motion to open
and vacate the February 19, 2014 order. At the hearing
the court stated the following: ‘‘I thought it would be
helpful to the parties to have a written opinion of the
court that tracked all of the orders that were put on
the record on February [19, 2014].’’ The court said that
‘‘there was a binding agreement that was approved and
ordered by the court on February [19, 2014]. It was not
contingent. There were provisions that needed to be
addressed relating to the terms of the special needs
trust. But the parties had put the terms of their
agreement on the record, and that agreement was
approved and so ordered by the court.’’ At the hearing,
the plaintiff said that, on further consideration, her
motion to open was ‘‘superfluous’’ and that she would
not proceed with it. In her view, there had been no
meeting of the minds on February 19, 2014, sufficient
to form a settlement agreement on which a stipulation
could be based. The plaintiff asserted that there was,
then, no valid postjudgment order and, thus, nothing
to open. The court disagreed with the plaintiff. This
appeal followed.
On December 22, 2014, the defendant filed a motion
seeking sanctions and a finding of contempt. On March
23, 2015, the court held a hearing on the defendant’s
motion. On March 27, 2015, the court, Tindill, J.,
granted the defendant’s motion. The plaintiff then filed
an amended appeal.1
I
The plaintiff claims that on February 19, 2014, the
court misapplied § 46b-662 when it approved the parties’
stipulated agreement as an order of the court. The plain-
tiff claims that the stipulation did not create an enforce-
able agreement, but only an ‘‘agreement to agree.’’ We
are not persuaded.
We begin by setting forth the following general princi-
ples. ‘‘A stipulated judgment constitutes a contract of
the parties acknowledged in open court and ordered
to be recorded by a court of competent jurisdiction.
. . . A stipulated judgment allows the parties to avoid
litigation by entering into an agreement that will settle
their differences once the court renders judgment on
the basis of the agreement. . . . A stipulated judgment,
although obtained through mutual consent of the par-
ties, is binding to the same degree as a judgment
obtained through litigation. . . .’’ (Internal quotation
marks omitted.) Housing Authority v. Goodwin, 108
Conn. App. 500, 506–507, 949 A.2d 494 (2008).
‘‘The well settled standard of review in domestic rela-
tions cases is that this court will not disturb trial court
orders unless the trial court has abused its legal discre-
tion or its findings have no reasonable basis in the facts.
. . . As has often been explained, the foundation for
this standard is that the trial court is in a clearly advanta-
geous position to assess the personal factors significant
to a domestic relations case . . . . [U]nless the trial
court applied the wrong standard of law, its decision
is accorded great deference because the trial court is
in an advantageous position to assess the personal fac-
tors so significant in domestic relations cases . . . .’’
(Citation omitted; internal quotation marks omitted.)
Mundell v. Mundell, 110 Conn. App. 466, 472, 955 A.2d
99 (2008).
‘‘The rules governing contract formation are well set-
tled. To form a valid and binding contract in Connecti-
cut, there must be a mutual understanding of the terms
that are definite and certain between the parties. . . .
To constitute an offer and acceptance sufficient to cre-
ate an enforceable contract, each must be found to have
been based on an identical understanding by the parties.
. . . If the minds of the parties have not truly met, no
enforceable contract exists. . . . [A]n agreement must
be definite and certain as to its terms and requirements.
. . . So long as any essential matters are left open for
further consideration, the contract is not complete.
. . . A contract requires a clear and definite promise.’’
(Citation omitted; internal quotation marks omitted.)
Geary v. Wentworth Labs., Inc., 60 Conn. App. 622, 627,
760 A.2d 969 (2000); see also id., 628 (duration, salary,
fringe benefits and other conditions of employment
deemed essential to employment contract). ‘‘An
agreement to agree to a material term at a later time
is no agreement at all.’’ (Internal quotation marks omit-
ted.) Kominski v. O’Keefe, Superior Court, judicial dis-
trict of Danbury, Docket No. FA-05-4001578-S (January
10, 2007) (42 Conn. L. Rptr. 650, 652); see Geary v.
Wentworth Laboratories, Inc., supra, 627 (‘‘[a] contract
requires a clear and definite promise’’).
The following additional facts are relevant. At the
February 19, 2014 hearing, prior to stating the terms of
the agreement on the record, the parties expressed their
understandings as to the nature and effect of the
agreement. The agreement was somewhat complex, as
the defendant lived in Hong Kong and the plaintiff
desired a special needs trust. The defendant’s attorney
noted the following: ‘‘[S]ubject to the court’s permis-
sion, we’d like to put on . . . an oral stipulation. We’ve
negotiated at some length, and . . . I think that we
would like to make sure that the points are in the record
today. And if the court sees fit to approve it, then at least
we’ll have an order.’’ The plaintiff’s attorney responded:
‘‘And then it’s going to require some doing . . . in
terms of drafting because the agreement contemplates
the creation of a special needs trust . . . and the right
to receive alimony into that trust. And the mechanics
and logistics of that are being handled by people who
are experts in those particular fields. . . . [W]hat we
intend to do is encompass what we put on the record
today within a written document that we’re [going to]
submit. But we want to make sure . . . that this matter
[is] resolved. [The defendant] doesn’t live in the area.
He’s going to be released and he’s [going to] go back
home. And we will work on the details of the writing,
and we’ll submit it at a later date.’’ The defendant’s
attorney clarified: ‘‘But the understanding will be . . .
that the writing will be consistent with what we’re say-
ing here today. And in the event that there were a
dispute, that would be decided by a judge, consistent
with the points raised today . . . without the necessity
of the parties being here because it would just be a
matter of working out the wording.’’ The plaintiff’s
attorney agreed.
The court inquired as follows: ‘‘And this agreement,
the stipulation that you want to put on the record is
resolving all of the issues subject to there being a writ-
ing? Is that the intent?’’ The defendant’s attorney
responded: ‘‘Well, actually it’s not [subject to a writing].
The writing will be the embodiment of . . . what we’re
saying today. . . . So this would be the order, and an
enforceable order today. . . . [J]ust as a judgment file,
for example, confirms the terms of the judgment. . . .
If we had a dispute . . . we’d say here were the terms
. . . that everybody stipulated to . . . . [If] for some
reason we were unable to work out the wording, the
court would help us through that then.’’ The plaintiff’s
attorney agreed and added the following: ‘‘However,
with that . . . being said, there’re some . . . terms
that we are just unfamiliar with . . . for example the
specific logistics of how the alimony is [going to] get
assigned into the special needs trust. So the concept
will be put on the record, but the actual terms of how
that’s [going to] take place is not [going to] be put on
the record.’’ The defendant’s attorney further explained:
‘‘That’s correct. But the further understanding . . . is
that [the writing] . . . would still have to be consistent
with what [we] are speaking about today.’’ (Empha-
sis added).
The defendant’s attorney then stated the terms of the
agreement. He prefaced the recitation by saying that
‘‘this is a postjudgment stipulation. It comes upon plain-
tiff’s motion for modification of alimony. And so the
agreement is as follows, Your Honor.’’
Regarding paragraph nine, the defendant’s attorney
stated the following: ‘‘The plaintiff immediately shall
secure or endeavor to secure a legal opinion that the
deductibility by the defendant of the alimony is not
impacted by any action taken by the plaintiff to assign
the alimony to the trust.’’ The plaintiff’s attorney stated
that ‘‘the linchpin of this whole deal is that [the defen-
dant] wants the income tax deduction on the $10,000
a month . . . and that [the plaintiff] wants to actually
receive the $10,000 a month. . . . So it’s really, really
important to each of these people to have the tax treat-
ment that we believe, and that we both have been
advised, exists.’’ The defendant’s attorney continued by
stating that ‘‘paragraph nine also continues that in order
to accomplish the deductibility, it may be a matter of
assigning the right to receive the alimony, or simply
. . . directing the payments be made to the trust or
some mechanism that the parties, though counsel, will
work in good faith to achieve with the result that the
defendant shall have the right under the Internal Reve-
nue [Code] to deduct the alimony on his income taxes,
and income taxes are paid in accordance with [federal
tax] law.’’ The plaintiff’s attorney again stated the fol-
lowing: ‘‘[T]he linchpin of the whole deal is that [the
defendant] gets to deduct the payments that he’s making
pursuant to paragraph one, and that [the plaintiff gets]
to actually receive [those] payments . . . .’’
Following the parties’ recitation of the agreement on
the record,3 the court stated the following: ‘‘[W]e’ll note
that this disposes of all open issues, and the only thing
that is left to do is to have the parties prepare your
agreement that’s going to track . . . the agreement
that you’ve put on the record.’’ The court then can-
vassed the parties. Both reported that they understood
the agreement, had reviewed it completely with their
attorney, and thought the agreement was fair and equi-
table. Following the canvass, the court stated: ‘‘So we
will put on the record that I find the [parties’] oral
stipulation that was put on the record today to be fair
and equitable. And it will be approved and so ordered.’’
The parties agreed that the ‘‘order is today,’’ though a
written version was to be submitted.
At the November 18, 2014 hearing, when the enforce-
ability of the February 19, 2014 stipulation was being
considered, the court found that ‘‘there was a binding
agreement that was approved and ordered by the court
on February [19, 2014]. It was not contingent. There
were provisions that needed to be addressed relating
to the terms of the special needs trust. But the parties
had put the terms of their agreement on the record,
and that agreement was approved and so ordered by
the court.’’
The plaintiff argues that in order for an agreement
to be enforceable pursuant to § 46b-66, there must be
a contract between the parties and that the court erred
in applying that statute because no contract existed.
She contends that the February 19, 2014 oral agreement
was an ‘‘agreement to agree’’ rather than an enforceable
contract. She argues that the ‘‘extremely complex oral
understanding’’ placed on the record ‘‘was replete with
tentativeness and ambivalence’’ and that the purpose
of the February 19, 2014 hearing was only to place a
concept on the record. She argues that, because essen-
tial terms of the proposed agreement—that the alimony
payments would be tax deductible for the defendant
and the plaintiff would receive the alimony payments
tax free—were unresolved and required expert opin-
ions, there was no meeting of the minds and, accord-
ingly, no valid contract. She further argues that there
were additional ‘‘unresolved and important terms,’’
including the future retraction by the defendant of cer-
tain remarks and the defendant’s ability to recoup con-
tributions to the special needs trust. The plaintiff argues
as well that, on February 19, 2014, the parties had not
yet drafted the written agreement and had not obtained
legal and tax opinions on essential contract terms and,
therefore, there was no meeting of the minds and no
enforceable contract.
The defendant argues that the February 19, 2014 oral
stipulation was an enforceable agreement. He contends
that this oral agreement was not ‘‘a mere placeholder
pending fulfillment of conditions precedent’’ and that
if the plaintiff had such subjective intent, that intent
was not expressed to the court on February 19, 2014.
The defendant argues that the parties and the court
stated that the order was binding and final. Further-
more, he argues that the parties were free to enter into
a contract that contained a term requiring the parties to
refer to a professional’s opinion regarding the technical
provisions of the special needs trust without creating
a condition precedent or a contingency. We agree with
the defendant.
No intent contrary to the creation of an enforceable
order was expressed at the February 19, 2014 hearing,
and the court’s finding of such was not clearly errone-
ous. Both parties expressed the intent to resolve the
matter on February 19, 2014, and sought to have the
court approve the agreement as an enforceable order.
The plaintiff’s attorney agreed with the defendant’s
attorney that the contemplated written document
would simply embody the agreement stated on the
record, and that they considered the agreement to be
‘‘an enforceable order today.’’
The provisions concerning the special needs trust,
were, according to both parties, the ‘‘linchpin[s]’’ of the
agreement. Although the plaintiff’s attorney noted that
the parties needed to consult with experts to draft the
special needs trust and that the concept of the trust
was being placed on the record, neither the plaintiff
nor her attorney expressed any desire not to create an
immediately enforceable order; indeed, they expressed
the contrary intent.
Although the intent as expressed may be useful, the
critical question is whether the essential terms were
actually agreed upon. The plaintiff argues on appeal
that one term essential to her was that the plaintiff
would receive $10,000 per month that would not be
subject to taxation, and this term, as matters developed,
was not agreed upon. No such term, however, was
expressly stated on the record at the February 19, 2014
hearing. Describing paragraph one of the agreement,
the defendant’s attorney stated that ‘‘the defendant shall
pay to the plaintiff the sum of $10,000 per month for a
term of 120 months, as taxable alimony, tax deductible
to the defendant.’’ (Emphasis added.) The plaintiff’s
attorney agreed, stating the importance of the defen-
dant’s being able to deduct the amount of $10,000 and
the plaintiff ‘‘actually receiv[ing] the $10,000 a month.’’
Receiving $10,000 a month is different from receiving
it tax free; there is nothing in the February 19, 2014
record expressing a term that the plaintiff would not
pay taxes on the amount received.4 The essential term
of the defendant’s alimony payments was objectively
agreed upon at the hearing: the plaintiff would receive
$10,000 in presumptively taxable alimony.
The plaintiff further argues that the ‘‘agreement’’ left
unclear how much maintenance she would receive net
of taxes, in light of the recoupment provisions in para-
graph ten. As previously noted in this opinion, para-
graph ten allowed the defendant to deduct certain
amounts from future alimony payments, should he not
be allowed to deduct his alimony payments. There was
indeed uncertainty, but the parties expressly agreed to
a very specific method of adjusting payments in the
event of a contingency. The plaintiff’s attorney
expressed an identical understanding of paragraph ten.
He stated, in response to the placement of paragraph
ten on the record, that: ‘‘what [the defendant’s attorney]
has said is accurate with just a clarification: we are
talking about [United States] law only, okay [United
States] tax law only. This is an international situation.’’
The plaintiff further argues that there were other
material unresolved terms, such as the requirement that
the defendant retract ‘‘hurtful and nasty things that were
said,’’ the plaintiff’s eligibility for Medicaid and other
state and federal assistance programs, and the terms
of the nondisparagement clauses. The agreement pro-
vided in paragraph eight that the plaintiff was to provide
a list of comments that she deemed hurtful by March
15, 2014, and that the defendant was to issue retractions.
This term was not unresolved; rather, the parties were
simply required to perform at a later date. Additionally,
at the February 19, 2014 hearing, the plaintiff’s attorney
expressed his understanding that ‘‘the intention of all
of this is . . . to try to make sure that [the plaintiff]
qualifies under both the income and the assets thresh-
olds for the services available to people with her types
of disabilities.’’ The discussion of state and federal assis-
tance programs was not a missing or unresolved mate-
rial term, but rather expressed the plaintiff’s motivation
for entering into the agreement—namely, trying to inte-
grate substantial payments by the defendant while
remaining qualified for public assistance. Paragraph
eight included a nondisparagement clause, whereby nei-
ther party would disparage the other personally or pro-
fessionally. The plaintiff’s attorney further clarified this
provision at the February 19, 2014 hearing, stating that
the parties ‘‘can’t circumvent the nondisparagement
[provision] by getting someone else to do it for [them].’’
The nondisparagement term was stated clearly on the
record, thus, and was not unresolved.
The plaintiff additionally argues that the complex
scheme was unworkable and therefore there was no
contract. The formation of a binding contract requires
a mutual understanding of the terms that are definite
and certain between the parties. See Geary v. Went-
worth Labs., Inc., supra, 60 Conn. App. 627–28. The
material terms, including the amount of alimony and
method of payment, were agreed upon. If one or more
subordinate aspirations later proved unworkable, this
event would not negate the existence of a present
agreement on the essential terms. For the foregoing
reasons, we conclude that the court did not err in con-
cluding that the parties’ agreement was enforceable and
not merely an agreement to agree.
II
The plaintiff claims, in the alternative, that even if
the February 19, 2014 agreement was enforceable, the
court improperly modified that agreement when it
promulgated its November 17, 2014 decision, substitut-
ing that document for the transcript of the previous
oral agreement of the parties. She contends that the
November 17, 2014 decision included the defendant’s
‘‘linchpin’’ term, that he would be able to deduct the
amount of alimony payments, but eliminated the plain-
tiff’s ‘‘linchpin’’ term, which was that she would actually
receive $10,000 per month tax free. She also argues
that the court eliminated from its November 17, 2014
decision certain statements made at the February 19,
2014 hearing to the effect that the agreement was a
‘‘concept,’’ that creating the trust documents was ‘‘going
to require some doing,’’ that there were ‘‘some terms
that we are just unfamiliar with,’’ and that the written
‘‘agreement is really [going to] be the controlling thing,’’
that paragraph six of the written agreement would be
‘‘augmented by provisions of paragraph eight, ten and
eleven,’’ and that the parties should return to court with
the ‘‘full agreement with the terms of the trust . . . .’’
We do not agree.
In the court’s November 17, 2014 ‘‘memorandum of
decision on postjudgment motions resolved by stipula-
tion approved and so ordered on February 19, 2014,’’
it explained that at the February 19, 2014 hearing, the
parties entered an oral stipulation on the record resolv-
ing all outstanding postjudgment motions. The court
stated that the plaintiff’s counsel had explained at the
hearing that the parties ‘‘were putting the concept of
the special needs trust—but not its actual terms—on
the record at that time, because the trust instrument
had to be prepared by an attorney who was an expert
in the law of special needs trusts. In particular, the
special needs trust counsel would have to address the
mechanics of paying or assigning alimony to a special
needs trust so that the plaintiff would qualify for Medic-
aid and other services and programs available to individ-
uals with disabilities while receiving the benefit of the
alimony paid by the defendant, and the defendant would
receive a federal income tax deduction for the alimony
that he paid.’’ (Footnote omitted.) The court then stated
that defendant’s attorney had recited the specific terms
of the agreement, and listed them in twelve numbered
paragraphs. The court concluded by stating that, after
canvassing both parties, it had approved the oral stipu-
lation, entered it as an order, and that it had directed
the parties to prepare and execute a written agreement
that included the relevant terms.
The equitable powers of a trial court in a dissolution
action do not include the power to rewrite an agreement
made by the parties. See Eckert v. Eckert, 285 Conn.
687, 696, 941 A.2d 301 (2008). In this case, however,
the court’s written recitation set forth in its November
17, 2014 decision did not modify or improperly rewrite
the terms of the February 19, 2014 oral agreement. The
November 17, 2014 decision memorialized the February
19, 2014 oral agreement. At a hearing on November 18,
2014, the court gave counsel a copy of the November 17,
2014 decision and stated, ‘‘I prepared a memorandum
of decision that put, in the context of a memorandum,
the stipulation and the orders that were entered on
February 19. . . . I thought that it would be helpful to
the parties to have a written opinion of the court that
tracked all of the orders that were put on the record
on February [19, 2014]. So that’s what this is.’’ The
court further explained that ‘‘the [November 17, 2014]
decision embodies, basically restates, the oral stipula-
tion and those terms that were put on the record, just
not in the course of a colloquy among counsel, the
parties, and the court. So there’s nothing new in [the
November 17, 2014] decision. The stipulation was
entered on February [19, 2014].’’
The plaintiff claims that the court modified several
provisions of the February 19, 2014 agreement in its
November 17, 2014 decision. The court simply memori-
alized the previously expressed terms of the February
19, 2014 agreement on the record. Cf. Sisk v. Meagher,
82 Conn. 376, 377, 73 A. 785 (1909) (preparation of
judgment file constitutes clerical action). For example,
the court did not act improperly by not including a term
that the plaintiff was to receive the $10,000 per month
tax free, as the plaintiff claims, because, as stated in
part I of this opinion, the February 19, 2014 agreement
did not include such a term. The court did not unfairly
eliminate the plaintiff’s statements regarding certain
terms being placed on the record as ‘‘concepts.’’5 The
court specifically stated that the plaintiff’s attorney had
‘‘explained that they were putting the concept of the
special needs trust—but not its actual terms—on the
record.’’ (Emphasis added).
We have examined the transcript of the February 19,
2014 proceedings and the court’s November 17, 2014
decision and find the remainder of the plaintiff’s claims
regarding the court’s summary of the agreement to be
without merit.
III
The plaintiff next claims that the court’s canvasses
of the plaintiff regarding (a) the February 19, 2014
agreement and (b) the November 17, 2014 order did not
satisfy the requirements of § 46b-66. We do not agree.
Section 46b-66 (a) provides in relevant part: ‘‘In any
case under this chapter where the parties have submit-
ted to the court an agreement concerning . . . alimony
. . . the court shall inquire into the financial resources
and actual needs of the spouses . . . in order to deter-
mine whether the agreement of the spouses is fair and
equitable under all the circumstances. . . .’’ According
to § 46b-66, ‘‘a court has an affirmative obligation, in
divorce proceedings, to determine whether a settlement
agreement is fair and equitable under all the circum-
stances. . . . The presiding judge has the obligation
to conduct a searching inquiry to make sure that the
settlement agreement is substantively fair and has been
knowingly negotiated. . . . With such judicial supervi-
sion, private settlement of the financial affairs of
estranged marital partners is a goal that courts should
support rather than undermine.’’ (Citations omitted;
internal quotation marks omitted.) Baker v. Baker, 187
Conn. 315, 321–22, 445 A.2d 912 (1982).
A
The plaintiff claims that the court did not conduct
an adequate inquiry pursuant to § 46b-66 before approv-
ing the agreement on February 19, 2014. She claims
that the court (1) did not have the entire file before it
and, therefore, was unable to review the underlying
motions and the February 28, 2012 memorandum of
decision, which included a finding that the plaintiff had
been severely impacted by her diagnosis of multiple
sclerosis, (2) failed to inquire into the plaintiff’s health
or the medications she was taking on the day of the
canvass, (3) did not inquire into the actual needs of the
parties or their respective financial resources, and (4)
failed explicitly to find that the plaintiff knowingly nego-
tiated the complicated oral agreement. We do not agree.
The court’s inquiry was sufficient to satisfy the
requirements of § 46b-66. Section 46b-66 requires an
inquiry into the parties’ financial circumstances and the
actual needs of the parties. The court had before it
the financial affidavits of both parties. The plaintiff’s
argument that the court was not aware of the plaintiff’s
medical condition is not supported by the record. The
plaintiff’s attorney stated at the February 19, 2014 hear-
ing that a special needs trust was contemplated in order
to ensure that the plaintiff would qualify for federal and
state assistance programs for individuals with disabili-
ties. The finding of the court, Emons, J., in its February
28, 2012 memorandum of decision that the plaintiff had
a diagnosis of multiple sclerosis was in the court file
and there was no indication that this information was
missing from the court file when the court determined
that the agreement was fair and equitable.6 See Brash
v. Brash, 20 Conn. App. 609, 612, 569 A.2d 44 (1990)
(judge presumed to have performed duties correctly in
absence of evidence to contrary). More critically, the
transcript is replete with references to her disability;
indeed, her disability was the impetus for the compli-
cated stipulated agreement. If the plaintiff’s attorney
wanted the court to know more details about the plain-
tiff’s condition or medication, he could have placed
that information on the record. See Grayson v. Wofsey,
Rosen, Kweskin & Kuriansky, 231 Conn. 168, 175–76,
646 A.2d 195 (1994) (‘‘lawyers who represent clients in
matrimonial dissolutions have a special responsibility
for full and fair disclosure, for a searching dialogue,
about all of the facts that materially affect the client’s
rights and interests’’ [internal quotation marks
omitted]).
The court’s obligation pursuant to § 46b-66 is to
ensure that the agreement is fair and equitable, after
becoming familiar with the circumstances; there is no
explicit requirement in that section that the court find
that a party has knowingly entered into the agreement,
though that will likely be the case. Here, the court’s
canvass of the plaintiff nonetheless revealed that she
knowingly entered into the agreement. During her can-
vass, the plaintiff indicated that she had heard the defen-
dant’s attorney recite the terms of the agreement, that
she understood what the defendant’s attorney was
describing, that she had an opportunity thoroughly to
review the terms of the agreement completely with her
attorney and that she believed the agreement was fair
and equitable under the circumstances. The court did
not err by declining to conduct a more exhaustive
canvass.
B
The plaintiff argues alternatively that, even if the
court’s November 17, 2014 decision did not improperly
rewrite the February 19, 2014 agreement, the November
17, 2014 decision was nonetheless improper because
the court failed to conduct a contemporaneous inquiry
pursuant to § 46b-66. We are not persuaded.
On February 19, 2014, the parties presented the
agreement to the court, the court conducted an inquiry
pursuant to § 46b-66 and the court found the agreement
to be fair and equitable. The court’s November 17, 2014
decision did not alter the February 19, 2014 agreement,
but rather summarized it. See part I of this opinion.
The court was not required pursuant to § 46b-66 to
conduct an additional inquiry before memorializing the
oral agreement.
IV
The plaintiff finally claims that the court, Tindill, J.,
erred in granting the defendant’s postjudgment motion
for contempt.7 We agree.
‘‘[O]ur analysis of a judgment of contempt consists
of two levels of inquiry. First, we must resolve the
threshold question of whether the underlying order con-
stituted 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.
. . .
‘‘A finding of contempt is a question of fact, and our
standard of review is to determine whether the court
abused its discretion in [finding] that the actions or
inactions of the [party] were in contempt of a court
order. . . . We review the court’s factual findings in
the context of a motion for contempt to determine
whether they are clearly erroneous. . . . A factual find-
ing is clearly erroneous when it is not supported by
any evidence in the record or when there is evidence
to support it, but the reviewing court is left with the
definite and firm conviction that a mistake has been
made. . . . The trial court’s findings are binding upon
this court unless they are clearly erroneous in light of
the evidence and the pleadings in the record as a whole.
. . . We cannot retry the facts or pass on the credibility
of the witnesses.’’ (Citation omitted; internal quotation
marks omitted.) Mekrut v. Suits, 147 Conn. App. 794,
799, 84 A.3d 466 (2014).
The following additional facts are relevant. On
December 22, 2014, the defendant filed a motion for
contempt and sanctions. In this motion, he argued that
paragraph nine of the February 19, 2014 agreement
required the plaintiff to ‘‘ ‘secure or endeavor to
secure’ ’’ a legal opinion that the tax deductibility of
the defendant’s alimony payments was not affected by
an assignment of the alimony payments to the trust. He
argued that the plaintiff wilfully violated that order by
failing to produce any legal opinion regarding the tax
deductibility and failing to draft the special needs trust,
but instead ‘‘placed every obstacle she could in the way
of reducing to writing the oral stipulation,’’ including
the filing of a motion to open that she later withdrew.
At the February 19, 2014 hearing, the defendant’s
attorney stated, when discussing paragraph nine, that
‘‘in order to sign off on paragraph ten, which is coming
up, [the plaintiff] in and—I don’t even think it’s abun-
dance of caution, just . . . in prudent practice, is going
to get an opinion letter from a special needs and a
tax person, who will opine that yes, [the defendant’s]
deducibility is not impacted at all by the scheme that
we contemplate.’’ The court then asked the plaintiff’s
attorney the following: ‘‘And you expect you’re going
to get that letter?’’ The plaintiff’s attorney responded
by stating that ‘‘[w]e expect we’re [going to] get that
[letter].’’ In the November 17, 2014 decision memorializ-
ing the February 19, 2014 agreement, the court stated
under paragraph nine that ‘‘[t]he plaintiff shall immedi-
ately secure, or endeavor to secure, a legal opinion to
the effect that any action taken by the plaintiff to assign
the alimony payments to the special needs trust does
not affect the deductibility of such alimony payments by
the defendant under the tax laws of the United States.’’
At the November 18, 2014 hearing, the issue of
whether the plaintiff obtained the opinion letter was
discussed and the plaintiff’s attorney stated that ‘‘it was
done in good faith and . . . the letter was obtained,’’
and she explained that ‘‘[the plaintiff] did not get a letter
that said it would be . . . deductible.’’ The plaintiff’s
attorney had, in fact, attached a draft opinion letter to
her June 18, 2014 motion to open.
A hearing was held on the defendant’s motion for
contempt on March 23, 2015. At the hearing, the plain-
tiff’s attorney argued that the plaintiff did not wilfully
violate the February 19, 2014 order because it was
impossible to comply with paragraph nine of the
agreement, stating that the inclusion of the defendant as
a residual beneficiary was a complication which likely
jeopardized his ability to deduct his payments. The
plaintiff’s attorney stated that on March 6, 2014, the
plaintiff’s former attorney stated in a letter to the defen-
dant’s attorney that the preliminary research of his tax
attorney suggested this difficulty with deductibility. The
defendant’s attorney stated that the opinion to which
the plaintiff referred was a draft letter from an accoun-
tant for discussion purposes only. The court inquired
whether there was a final opinion. The plaintiff’s attor-
ney stated that no further research was conducted, as
the plaintiff’s former attorney had filed a motion to
withdraw in the interim. The defendant’s attorney
stated that he had a witness available who was prepared
to say that the scheme was viable. In its written order
granting the defendant’s motion for contempt, the court
found ‘‘by clear and convincing evidence that a court
order was entered on February 19, 2014, that the plain-
tiff violated that court order, and that the plaintiff’s
violation of the order was wilful.’’ The court awarded
the defendant attorney’s fees and fees for expert wit-
nesses in the amount of $169,225.61.
The plaintiff argues on appeal that the February 19,
2014 and November 17, 2014 court orders were interloc-
utory in nature and were ambiguous as to whether the
plaintiff would be in violation of the order if she was
unable to obtain the requisite legal opinion. The plaintiff
further argues that the failure to follow the order was
not wilful.
The November 17, 2014 decision memorializing the
February 19, 2014 order provided that the plaintiff was
to ‘‘secure or endeavor to secure’’ an opinion letter. It
is undisputed that the plaintiff made some effort to
secure such a letter. Relying on the draft opinion letter,
she contends that it was impossible to obtain a correct
opinion that the defendant’s tax deductibility was not
jeopardized by his putative status as residual benefi-
ciary. The defendant counters that not only was it possi-
ble to obtain such a letter, but that he had obtained
such an opinion. In light of the undisputed fact that the
plaintiff made at least some effort to secure the opinion
letter, we are left with a definite and firm conviction that
the court’s finding of contempt was clearly erroneous.
The judgment is reversed only as to the finding of
contempt and the case is remanded with direction to
deny the defendant’s motion for contempt; the judg-
ment is affirmed in all other respects.
In this opinion the other judges concurred.
1
The defendant argues that the portion of the plaintiff’s appeal challenging
the merits of the February 19, 2014 order should be dismissed. The defendant
filed two motions in this court seeking to dismiss the appeal, in which he
raised the same grounds as he now does on appeal. This court denied
both motions.
2
General Statutes § 46b-66 (a) provides in relevant part: ‘‘In any case under
this chapter where the parties have submitted to the court an agreement
concerning . . . alimony . . . the court shall inquire into the financial
resources and actual needs of the spouses . . . in order to determine
whether the agreement of the spouses is fair and equitable under all the
circumstances. . . .’’
3
The parties recited and discussed, on the record, each of the twelve
paragraphs in the stipulated agreement.
4
The agreement did contain, in paragraph ten, a mechanism by which
the defendant’s payments could be modified if, because of the intricacies
of the arrangement, his payments were determined not to be deductible by
him. In that event, he could reduce his alimony payments by the amounts
of the disallowed deductions. The plaintiff’s expression that she needed to
‘‘actually receive’’ $10,000 per month is, then, consistent with the ability of
the defendant to deduct the amount of alimony he paid.
5
To the extent that the plaintiff argues the court erred in modifying the
February 19, 2014 ‘‘agreement to agree’’ into a contract with clear and
definite terms, that argument fails because the February 19, 2014 agreement
was, in fact, an enforceable agreement. See part I of this opinion.
6
Following the court’s canvass of the parties, the court indicated that it
would ‘‘grab the file and the financial affidavits.’’ The courtroom clerk indi-
cated that the file was with Judge Emons, but then stated ‘‘Oh, no, it’s not.
I take it back.’’ The court stated that it only had ‘‘part of the file here.’’
There was no indication from the record that the court was not aware of
the portions of the record relevant to this issue.
7
The plaintiff also claims that the court’s award of attorney’s fees to
the defendant on his motion for contempt was unreasonable. Because we
determine that the court erred in granting the defendant’s motion for con-
tempt, we need not address this claim.