Magsig v. Magsig , 183 Conn. App. 182 ( 2018 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
KIM MAGSIG v. MICHAEL MAGSIG
(AC 39544)
DiPentima, C. J., and Prescott and Bozzuto, Js.
Syllabus
The plaintiff, whose marriage to the defendant previously had been dis-
solved, appealed to this court from the trial court’s denial of her postjudg-
ment motion for contempt, in which she claimed that the defendant had
breached the terms of parties’ separation agreement that made the
defendant responsible for certain debt to W Co. and required that the
plaintiff be held harmless for that debt. Specifically, she claimed that
the defendant had not made the required payments to W Co. for approxi-
mately one year and had not notified her of any significant developments
or discussions regarding this debt, namely, that he intentionally had
defaulted on the loan. As a result, the plaintiff claimed that she suffered
losses, including diminished creditworthiness. The defendant main-
tained that because W Co. had not commenced any proceedings regard-
ing that debt, his obligation to hold the plaintiff harmless had not yet
been triggered. The trial court denied the plaintiff’s motion for contempt
on the ground that the plaintiff failed to prove, by clear and convincing
evidence, that the defendant wilfully and intentionally had violated the
separation agreement, reasoning that the agreement did not require the
plaintiff to be indemnified for any collateral damages that may be caused
directly or indirectly by the nonpayment of the W Co. debt. Held:
1. The plaintiff’s claim that, because the agreement was unambiguous, the
trial court improperly considered evidence outside of the four corners
of the contract in determining the parties’ intent with respect to the
indemnification language of the agreement was unavailing; the defen-
dant’s testimony regarding his understanding of what triggered his obli-
gation to indemnify the plaintiff was admitted for the purpose of
determining whether he had wilfully violated the agreement and the
court did not use that evidence to interpret the parties’ intent with
respect to the agreement, as the mere fact that the court permitted the
defendant to testify about his understanding of the agreement did not
mean, a fortiori, that the court used that testimony to interpret the
parties’ separation agreement, particularly where the court specifically
identified the basis of its conclusion in its memorandum of decision
and noted that the defendant’s testimony was admitted for the purpose
of determining whether he had violated the agreement wilfully.
2. The plaintiff could not prevail on her claim that because similar language
used in the agreement has been interpreted in other cases as an indem-
nity against liability and not simply loss, she was not required to wait until
she sustained an actual loss to bring a successful motion for contempt:
although the indemnification clause provided that the defendant would
hold the plaintiff harmless from ‘‘any loss, injury, debt, charge, legal
fees, or liability’’ with respect to the debt to W Co., the agreement further
required that the defendant secure his indemnification obligation with
particular assets and notify the plaintiff of any and all material, signifi-
cant developments regarding that debt, and those provisions would have
been rendered useless and unnecessary under the plaintiff’s interpreta-
tion of the agreement, under which she already would have been entitled
to full and immediate recourse on the indemnification provision on the
day of the dissolution judgment; accordingly, the trial court properly
concluded that the defendant’s indemnity obligation was not triggered
until W Co. commenced an action against the plaintiff or otherwise took
affirmative steps to collect from her with respect to the debt.
Argued February 13—officially released July 3, 2018
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, and tried to the court, Hon.
Stanley Novack, judge trial referee; judgment dissolving
the marriage and granting certain other relief in accor-
dance with the parties’ separation agreement; there-
after, the court, Colin, J., denied the plaintiff’s motion
for contempt, and the plaintiff appealed to this court.
Affirmed.
Meredith C. Braxton, for the appellant (plaintiff).
Edward M. Kweskin, with whom, on the brief, was
Sarah E. Gleason, for the appellee (defendant).
Opinion
DiPENTIMA, C. J. The plaintiff, Kim Magsig,1 appeals
from the denial of her postdissolution motion for con-
tempt. On appeal, she claims that the trial court improp-
erly concluded that the defendant, Michael Magsig, had
not violated an indemnification obligation contained in
the parties’ separation agreement. We disagree and,
accordingly, affirm the judgment of the trial court.2
The record reveals the following relevant facts and
procedural history. On April 16, 2013, the court, Hon.
Stanley Novack, judge trial referee, dissolved the mar-
riage of the parties. In accordance with General Statutes
§ 46b-66, the judgment of dissolution incorporated by
reference the parties’ separation agreement
(agreement). Article 9 of the agreement addressed past
and future debts of the parties.
Section 9.2 of the agreement provided: ‘‘The [defen-
dant] shall be solely responsible for the Wells Fargo
Bank debt (formerly the home equity line of credit on
the parties’ foreclosed Greenwich property) as a sup-
port obligation and shall indemnify and hold the
[plaintiff] harmless from any loss, injury, debt,
charge, legal fees, or liability whatsoever with respect
thereto. The [plaintiff] shall secure this indemnification
obligation with his Schwab IRA and Korn Ferry 401 (K)
and provide the [plaintiff] semiannually with a state-
ment for each account so long as he shall have this
indemnification obligation. The [defendant] shall notify
the [plaintiff] of any and all material, significant devel-
opments or discussions that take place between him
and his representatives and Wells Fargo or its represen-
tatives. The [defendant] shall promptly notify the [plain-
tiff] in the event he learns that Wells Fargo is about to
commence an action or seek a lien on the [plaintiff’s]
real property. In the alternative, if the [defendant] is
able to remove the [plaintiff’s] name as a joint and
severally liable obligor on the promissory note to Wells
Fargo, which shall be no later than November 16, 2018,
the time of the expiration of the statute of limitations
on the Wells Fargo liability, all obligations to the [plain-
tiff] to hold her harmless from liability from Wells Fargo
shall terminate.’’ (Emphasis added.)
On January 23, 2014, the plaintiff filed a motion for
contempt pursuant to Practice Book § 25-27, alleging
that the defendant had violated § 9.2 of the agreement.
Specifically, she claimed that the defendant had not
made the ‘‘required, regular payments to [the Wells
Fargo debt] for approximately one year’’ and had not
notified her of ‘‘any and all material, significant develop-
ments or discussions’’ regarding this debt; namely, that
he intentionally had defaulted on the loan, resulting in
an immediate debt of $434,958.
The plaintiff further alleged that the defendant had
agreed to indemnify her for both loss and liability and
that, under Connecticut law, she became entitled to
indemnification as soon as the defendant caused her
to be liable to Wells Fargo for the entire balance due.
Additionally, she claimed injury in that, as a result of the
defendant’s actions, (1) her credit score had ‘‘dropped
precipitously’’; and (2) she would not be able to remove
him from the mortgage note for a South Carolina prop-
erty as required by the terms of the agreement. Finally,
the plaintiff requested attorney’s fees pursuant to § 11.3
of the agreement.3
The defendant filed an objection to the plaintiff’s
contempt motion, disputing her claims. Specifically, he
argued that because Wells Fargo had not commenced
a legal action to enforce its right on the debt, his indem-
nification obligation had not been triggered. He further
claimed that the agreement did not require him to make
any payments at any particular time to Wells Fargo.
The defendant also maintained that he had secured his
indemnity obligation as required by the agreement and
had not learned of any material, significant develop-
ments regarding the debt, nor had he had any discus-
sions with Wells Fargo. Finally, the defendant requested
attorney’s fees incurred in responding to the plaintiff’s
motion and on the basis of ‘‘litigation misconduct.’’
On September 4, 2015, the plaintiff filed a reply in
further support of her motion. She iterated that, under
Connecticut law, she was entitled to prosecute this
motion at the time her liability was incurred and was
not required to wait for an actual loss. She also claimed
that relevant principles of contract interpretation sup-
ported her position.
The court, Colin, J., conducted hearings on May 18,
May 19, and May 20, 2016.4 An employee of Wells Fargo,
the plaintiff and the defendant testified, and, following
the presentation of evidence, the court heard argument
from counsel. On May 23, 2016, the court issued a mem-
orandum of decision denying the plaintiff’s motion for
contempt. The court concluded that the plaintiff failed
to prove, by clear and convincing evidence, that the
defendant wilfully and intentionally had violated § 9.2
of the agreement.
Specifically, the court found that the plaintiff had not
produced sufficient evidence that she had suffered any
loss, injury, debt, charge, legal fees or liability as to the
Wells Fargo debt since the date of the dissolution of
the marriage. The court also found that although prior
to judgment, the real property that originally secured
the Wells Fargo debt had been foreclosed and the debt
was in default status, Wells Fargo had not taken any
‘‘formal collection actions against the parties.’’
The court noted that the plaintiff had produced evi-
dence that ‘‘due to a derogatory reference on her credit
report regarding the Wells Fargo debt, she was unable
to secure a rental property for herself and therefore
must continue to live in the more expensive South Caro-
lina property . . . . The court finds that this claim is
not a ‘loss’ or ‘injury’ . . . with respect [to the Wells
Fargo debt] contemplated by the parties’ agreement.’’
Put another way, the court determined that this type
of impact was ‘‘collateral damage’’ and was not within
the scope of the indemnification clause.5
The court also examined the language of § 9.2 of the
agreement and concluded that the defendant’s indemni-
fication obligation was triggered when the plaintiff suf-
fered an actual loss, injury, debt, charge, legal fees, or
liability directly related to the Wells Fargo debt; in other
words, when Wells Fargo ‘‘actually makes a claim
against the plaintiff or otherwise takes an affirmative
step against the plaintiff to collect the funds due. That
has not happened, and it may not happen.’’ The court
reached this conclusion by considering the entire lan-
guage of § 9.2; that is, the requirement that the defen-
dant keep the plaintiff informed of material and
significant developments and discussions regarding the
debt, his obligation to notify her if he learned that Wells
Fargo was about to commence an action or seek a lien
on her property and the reference to the 2018 statute
of limitations regarding the Well Fargo debt. The court
also noted that the parties had agreed that § 9.2 did not
require the defendant to pay Wells Fargo on time each
month. Simply stated, the court determined that ‘‘[t]he
agreement does not provide that the plaintiff shall be
indemnified for any collateral damages that may be
caused directly or indirectly by the nonpayment of the
Wells Fargo debt, such as the impact on the plaintiff’s
credit rating or her ability to rent a dwelling or obtain
a car loan . . . .’’
Next, the court concluded that the relevant language
of § 9.2 of the agreement was clear and unambiguous.
Then, it explained the flaw in the plaintiff’s interpreta-
tion of the indemnification clause. ‘‘Under the plaintiff’s
theory of the case, once liability attached to her, the
defendant’s indemnification obligation is triggered and
she is entitled to compensation. The plaintiff’s liability
in connection with this joint [Wells Fargo] debt attached
before the date of the dissolution degree, when the
parties signed the note and borrowed the money. Thus,
under her theory, the defendant’s indemnification obli-
gation arguably was triggered immediately upon the
dissolution court’s approval and entry of the decree. If
that is the case, then the other portions of [§] 9.2 would
likely be rendered useless. For example, why would the
defendant need to secure his obligation with anything
if he was already required to fulfill the indemnification
obligation and pay off the debt? If the defendant was
already required to fulfill the indemnification obliga-
tion, then why would he need to notify the plaintiff of
any future collection actions taken by the lender? These
provisions would be unnecessary under the plaintiff’s
present argument since the plaintiff would already have
been entitled to full and immediate recourse on the
indemnification provision on the day of the dissolution
court’s entry of judgment. The court rejects this inter-
pretation of the agreement because it is inconsistent
with the parties’ intent . . . . The plaintiff has failed
to prove that, since the date of the dissolution of the
marriage, she has suffered ‘any loss, injury, debt,
charge, legal fees, or liability . . . with respect to [the
Wells Fargo Bank debt]’ within the meaning of [§] 9.2
of the parties’ agreement. The plaintiff is now
attempting to read into the parties’ agreement a pay-
ment obligation by the defendant that is not contained
in the language of the document.’’
The court further determined that the plaintiff had
not incurred a new postdissolution liability and that
she was liable for the Wells Fargo debt at the time of
the dissolution judgment. Therefore, it concluded ‘‘the
parties did not intend that this preexisting liability
would be used as the basis for an action, postjudgment,
under the indemnification from liability provision of [§]
9.2 without there being any additional affirmative
actions being taken by the lender.’’ (Emphasis added.)
Accordingly, the court denied the plaintiff’s motion for
contempt and her requests for ‘‘nearly $500,000 plus
counsel fees . . . .’’6 This appeal followed.
As an initial step, we set forth the relevant legal princi-
ples and applicable standards of review. ‘‘Contempt is
a disobedience to the rules and orders of a court which
has power to punish for such an offense. . . . A con-
tempt judgment cannot stand when, inter alia, the order
a contemnor is held to have violated is vague and indefi-
nite, or when the contemnor, through no fault of his
own, was unable to obey the court’s order.’’ (Internal
quotation marks omitted.) Gabriel v. Gabriel, 324 Conn.
324, 330, 152 A.3d 1230 (2016); see also Malpeso v.
Malpeso, 165 Conn. App. 151, 181–82, 138 A.3d 1069
(2016).
‘‘First, we must resolve the threshold question of
whether the underlying order constituted 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 suffi-
ciently clear and unambiguous, we must then determine
whether the trial court abused its discretion in issuing,
or refusing to issue, a judgment of contempt, 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. . . .
In domestic relations cases, [a] judgment rendered in
accordance with . . . a stipulation of the parties is to
be regarded and construed as a contract. . . . Accord-
ingly, our resolution of the plaintiff’s claim is guided
by the general principles governing the construction of
contracts.’’ (Citation omitted; internal quotation marks
omitted.) Mettler v. Mettler, 165 Conn. App. 829, 835–36,
140 A.3d 370 (2016); see also Gabriel v. Gabriel, supra,
324 Conn. 330–31; Dowd v. Dowd, 96 Conn. App. 75,
79, 899 A.2d 76, cert. denied, 280 Conn. 907, 907 A.2d
89 (2006).
‘‘When construing a contract, we seek to determine
the intent of the parties from the language used interpre-
ted 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 possi-
ble, the court need not look outside the four corners
of the contract. . . . 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.’’ (Emphasis in
original; internal quotation marks omitted.) Dejana v.
Dejana, 176 Conn. App. 104, 114, 168 A.3d 595, cert.
denied, 327 Conn. 977, 174 A.3d 195 (2017); see also
Nation-Bailey v. Bailey, 316 Conn. 182, 191–92, 112
A.3d 144 (2015); Schimenti v. Schimenti, 181 Conn.
App. 385, 396–97, A.3d (2018).
In the present case, the plaintiff’s appellate argument
rests on two foundations. First, she contends that
because the language of § 9.2 is unambiguous7 and the
agreement contains a merger clause in § 11.48 resulting
in an integrated contract, the court was prohibited from
considering anything except the language contained in
the agreement.9 Essentially, she claims that the court
improperly heard and used parol evidence, namely, the
defendant’s testimony regarding his understanding
when his indemnification obligation was triggered, to
interpret § 9.2. Second, she argues that the language
used in § 9.2 of the agreement should be interpreted as
indemnity against liability, and, therefore, she was not
required to wait until a loss occurred to initiate and
prevail on her motion for contempt. See 24 Leggett
Street Ltd. Partnership v. Beacon Industries, Inc., 239
Conn. 284, 306, 685 A.2d 305 (1996); see also Amoco
Oil Co. v. Liberty Auto & Electric Co., 262 Conn. 142,
148, 810 A.2d 259 (2002); Balboa Ins. Co. v. Zaleski, 12
Conn. App. 529, 534–35, 532 A.2d 973, cert. denied, 206
Conn. 802, 535 A.2d 1315 (1987). We consider each
argument in turn.
First, we consider the plaintiff’s argument that the
court improperly considered evidence outside of the
four corners of the contract in determining the parties’
intent with respect to § 9.2 of the agreement. The parties
and the court agreed that § 9.2 was unambiguous. Addi-
tionally, the plaintiff contends that, due to the use of
a merger clause in § 11.4, the agreement was completely
integrated. For these reasons, the plaintiff maintains
that it was improper for the court to use parol evidence
to determine the parties’ intent with respect to § 9.2.
The court did admit into evidence the defendant’s
testimony regarding his understanding of what trig-
gered his indemnification obligation to the plaintiff.
This evidence, however, was admitted for the purpose
of determining whether the defendant had wilfully vio-
lated § 9.2 of the agreement. After a review of the record
and the court’s decision, we are persuaded that the
court did not use this evidence to interpret the parties’
intent with respect to § 9.2.
The following additional facts are necessary for our
discussion. During direct examination the defendant
stated that he had not taken any action with respect to
making payments to Wells Fargo. He testified that he
chose not to act after consulting with a foreclosure
attorney. The court interjected as follows: ‘‘It seems
like now everybody agreed—everybody agrees that [the
defendant] didn’t have to do anything in connection
with the bank. The question is what does he have to
pay or what does he have to do in connection to his
former wife?’’ The defendant’s counsel agreed with the
court’s statement and suggested that the remaining
question was when the defendant’s indemnity obliga-
tion was triggered.
The defendant’s counsel then sought permission to
question the defendant regarding his understanding of
what would activate his obligation to indemnify the
plaintiff. The purpose of this testimony was to deter-
mine if the defendant had wilfully violated the parties’
agreement. The court permitted the following question
from the defendant’s counsel to the defendant: ‘‘So what
is your understanding about when this indemnity is
triggered, sir?’’ The defendant responded that he
believed that the indemnification clause was triggered
if Wells Fargo notified the defendant or his representa-
tives that it intended to take action on the debt, such
as filing a lawsuit or referring the matter to a collection
agency. Thereafter, the court inquired: ‘‘So is it your
understanding, sir, that if Wells Fargo never comes after
[the plaintiff] ever for this loan, then your indemnifica-
tion obligation never gets triggered?’’ The defendant
responded in the affirmative.
On appeal the plaintiff argues that the court first
should have construed § 9.2 of the agreement according
to its plain language and then determined whether the
defendant had wilfully violated its terms. ‘‘Instead, the
court admitted parol evidence to determine [the] defen-
dant’s wilfulness but then used it to interpret the indem-
nification provision based on [the] defendant’s intent
. . . .’’
Contrary to the plaintiff’s claims, the court did not
use the defendant’s testimony to determine the parties’
intent with respect to § 9.2 of the agreement. As explic-
itly stated in its memorandum of decision, the court
relied on ‘‘the other provisions in [§] 9.2, including (a)
the defendant’s obligation to keep the plaintiff informed
of any ‘material, significant developments or discus-
sions between him and his representatives and Wells
Fargo or its representatives’; (b) the defendant’s obliga-
tion to notify the plaintiff ‘in the event he learns that
Wells Fargo is about to commence an action or seek a
lien on the [plaintiff’s] real property’; and (c) the refer-
ence to the expiration of the statute of limitation in
2018 on the Wells Fargo liability, at which time ‘all
obligations to the [plaintiff] to hold her harmless from
liability from Wells Fargo shall terminate.’ ’’
The mere fact that the court permitted the defendant
to testify about his understanding of § 9.2 does not
mean, a fortiori, that the court used that testimony
to interpret the parties’ separation agreement. This is
particularly true given that the court (1) specifically
noted that the defendant’s testimony was admitted for
the purpose of determining whether he had violated
the agreement wilfully, and (2) specifically identified
the basis of its conclusion in a memorandum of deci-
sion. This court will presume that the trial court acted
properly in the performance of its duties. See Zenon v.
Mossy, 114 Conn. App. 734, 737, 970 A.2d 814 (2009).
Finally, we note that the plaintiff’s appellate argument
that the court improperly used the testimony regarding
the defendant’s understanding of § 9.2 to interpret that
part of the agreement amounts to nothing more than
conjecture and speculation, which have no place in
appellate review. Konefal v. Konefal, 107 Conn. App.
354, 360, 945 A.2d 484, cert. denied, 288 Conn. 902, 952
A.2d 810 (2008). For these reasons, we disagree that
the court improperly used the defendant’s testimony to
interpret the intent of § 9.2 of the parties’ agreement.
Next, we consider the plaintiff’s argument that the
court misinterpreted § 9.2 of the agreement. Specifi-
cally, she contends that the language used in § 9.2 has
been interpreted as indemnity against liability in other
cases, and therefore she was not required to wait until
a loss to bring a successful motion for contempt. We
disagree.
The plaintiff relies primarily on 24 Leggett Street Ltd.
Partnership v. Beacon Industries, Inc., supra, 239
Conn. 284, and Balboa Ins. Co. v. Zaleski, supra, 12
Conn. App. 529, in support of this argument. In the
former, the defendant contracted to ‘‘defend, indemnify
and hold the plaintiff harmless from and against any
liabilities, losses, damages, costs or expenses (including
reasonable attorneys’ fees) of any nature arising from
the environmental conditions of or problems with the
Property [that the plaintiff had purchased from the
defendant], which conditions or problems arose prior
to Closing and whether known . . . or unknown.’’
(Internal quotation marks omitted.) 24 Leggett Street
Ltd. Partnership v. Beacon Industries, Inc., supra, 288.
In that case, our Supreme Court then set forth the
relevant legal principles regarding indemnification
clauses. ‘‘Generally, indemnity agreements fall broadly
into two classes, those where the contract is to indem-
nify against liability and those where it is to indemnify
against loss. In the first, the cause of action arises as
soon as liability is incurred, but in the second it does
not arise until the indemnitee has actually incurred the
loss. . . . Where an indemnity agreement, however,
indemnifies against liability as well as against loss . . .
the indemnitee does not have to wait until the loss
occurs, but may sue on the agreement as soon as liability
is incurred.’’ (Internal quotation marks omitted.) Id.,
306; see also Fairfield v. D’Addario, 149 Conn. 358,
361, 179 A.2d 826 (1961).
The court then rejected the defendant’s claim that it
was liable only for the costs actually incurred by the
plaintiff, that is, its obligation was limited to a loss
suffered by the plaintiff rather than liability. 24 Leggett
Street Ltd. Partnership v. Beacon Industries, Inc.,
supra, 239 Conn. 306. ‘‘On the issue of whether, in the
event of a breach of the contract, the plaintiff’s damages
would be limited to those actually incurred, this con-
tract presents clear and definitive language that for
more than sixty years has been interpreted but one way.
The terms . . . are unambiguous in their requirement
that the defendant will hold the plaintiff harmless from
and against any liabilities, losses, damages, costs or
expenses arising from an environmental condition of
the property. . . . Because the indemnity protects
against liability in addition to loss, the plaintiff need
not wait until an actual loss occurs, but may sue once
liability is incurred. . . . Accordingly, we conclude as
a matter of law . . . that the plaintiff’s damages are not
limited to those costs it actually incurred.’’ (Citations
omitted; emphasis omitted; internal quotation marks
omitted.) Id., 306–307. This court reached the same
conclusion with respect to similar contract language in
Balboa Ins. Co. v. Zaleski, supra, 12 Conn. App. 535–36.
The plaintiff argues that the indemnification language
used in § 9.2 of the agreement is similar to that used
in 24 Leggett Street Ltd. Partnership v. Beacon Indus-
tries, Inc., supra, 239 Conn. 287–88, and Balboa Ins.
Co. v. Zaleski, supra, 12 Conn. App. 535–36, and, accord-
ingly, must be interpreted as requiring the defendant
to indemnify her from liability and not simply loss. This
argument, however, ignores the other language used by
the parties in § 9.2. The indemnification clause provided
that the defendant would hold the plaintiff harmless
from ‘‘any loss, injury, debt, charge, legal fees, or liabil-
ity’’ with respect to the Wells Fargo debt. It also obli-
gated the defendant to ‘‘secure this indemnification
obligation with his Schwab IRA and Korn Ferry 401 (K)
and provide the [plaintiff] semiannually with a state-
ment for each account so long as he shall have this
indemnification obligation.’’ Section 9.2 further
required the defendant to notify the plaintiff of ‘‘any and
all material, significant developments or discussions’’
between himself and his representatives and Wells
Fargo and its representatives. The defendant also was
obligated to notify the plaintiff if Wells Fargo was
‘‘about to commence an action or seek a lien on the
[plaintiff’s] real property.’’
The trial court properly concluded that these provi-
sions would be rendered useless and unnecessary under
the plaintiff’s interpretation of § 9.2. ‘‘The law of con-
tract interpretation militates against interpreting a con-
tract in a way that renders a provision superfluous.’’
(Internal quotation marks omitted.) Barber v. Skip Bar-
ber Racing School, LLC, 106 Conn. App. 59, 81, 940 A.2d
878 (2008); see also 24 Leggett Street Ltd. Partnership v.
Beacon Industries, Inc., supra, 239 Conn. 298 (because
parties ordinarily do not insert meaningless provisions
into agreements, every provision of contract must be
given effect if it can be done reasonably); Snydergen-
eral Corp. v. Lee Parcel 6 Associates Ltd. Partnership,
43 Conn. App. 32, 36, 681 A.2d 1008 (1996) (same);
Plikus v. Connecticut Light & Power Co., 42 Conn. App.
299, 303, 679 A.2d 401 (1996) (same).
Significantly, the court found that the parties were
liable for the entire Wells Fargo debt prior to the dissolu-
tion judgment incorporating the agreement of the par-
ties.10 As aptly stated by the trial court, other obligations
of the defendant set forth in § 9.2 would be unnecessary
because, under the plaintiff’s interpretation, she ‘‘would
already have been entitled to full and immediate
recourse on the indemnification provision on the day
of the dissolution court’s entry of judgment.’’ There
would be no need for the defendant to notify the plaintiff
of future collection actions or to secure his obligation
with his retirement accounts under her interpretation
of § 9.2.
We conclude, therefore, that the court’s interpreta-
tion of § 9.2 of the agreement was not improper given
the court’s obligation ‘‘to determine the intention of the
parties from the language used interpreted in the light
of the situation of the parties and the circumstances
connected with the transaction.’’ (Emphasis added.)
Kronholm v. Kronholm, 16 Conn. App. 124, 130, 547
A.2d 61 (1988); see also Eckert v. Eckert, 285 Conn.
687, 692, 941 A.2d 301 (2008). Under these facts and
circumstances, where the debt was incurred and the
entire amount was due prior to the dissolution judgment
and their agreement, and in light of the language used
in § 9.2, we agree with the trial court that the defendant’s
indemnity obligation is not triggered until Wells Fargo
commences an action against the plaintiff or otherwise
takes an affirmative step to collect from the plaintiff
with respect to the debt. Accordingly, the plaintiff’s
claim that the court misinterpreted § 9.2 must fail.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The judgment of dissolution restored the plaintiff’s name to Kim Carney.
2
In the proceedings before the trial court, the plaintiff sought attorney’s
fees pursuant to §§ 9.2 and 11.3 of the parties’ separation agreement. The
trial court denied her motion for contempt and her request for attorney’s
fees. On appeal, the plaintiff argued that if we reverse the judgment of the
trial court, then, pursuant to the terms of the separation agreement, the
defendant should be ordered to pay her trial and appellate attorney’s fees.
As a result of our conclusion that the judgment of the trial court should be
affirmed, we need not address the plaintiff’s claim regarding attorney’s fees.
3
Section 11.3 of the agreement provided: ‘‘In the event a party is found
to have breached this [a]greement, or to be in contempt of any of the
provisions of this [a]greement, that Party shall be responsible for the reason-
able legal fees and costs associated with the enforcement of this
[a]greement.’’
4
Prior to the hearings on the contempt motion, the plaintiff filed a motion
in limine, pursuant to Practice Book § 15-3, to preclude the testimony of
attorneys Judith Ellenthal and Jill Bicks, who previously had represented the
plaintiff and the defendant respectively. The plaintiff also joined Ellenthal’s
motion to quash the subpoena filed by the defendant. The plaintiff argued
that the defendant sought to question Ellenthal and Bicks regarding the
negotiation of the terms of the agreement and that such parol evidence was
irrelevant and inadmissible where the terms of the agreement were unam-
biguous.
On April 22, 2016, the court held a hearing on the motion in limine and
the motion to quash. After hearing from the parties, the court issued an
oral ruling granting the plaintiff’s motion in limine as follows: ‘‘Extrinsic
evidence of the intent of the parties shall be inadmissible to vary or contradict
the language of the separation agreement unless the trial court determines
that parol evidence will be permitted.’’ The court denied the motion to quash.
5
The court also determined that the plaintiff had failed to meet her burden
of proving that her credit score changed from the date of the dissolution
to the present date. It noted that the parties’ failure to pay the Wells Fargo
debt prior to the dissolution of the marriage and the loss of the collateral,
through foreclosure, likely caused the decline in her credit score, rather
than the postdissolution events.
6
The court also denied the defendant’s request for attorney’s fees.
7
‘‘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 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.’’
(Internal quotation marks omitted.) Dejana v. Dejana, supra, 176 Conn.
App. 115.
8
Section 11.4 of the agreement provided: ‘‘The [defendant] and the [plain-
tiff] have incorporated in this [a]greement their entire understanding, and
no oral statement or prior written matter extrinsic to this [a]greement. The
parties agree that each is not relying upon any representations other than
those expressly set forth herein.’’
9
‘‘[T]he parol evidence rule is not an exclusionary rule of evidence . . .
but a rule of substantive contract law . . . . The rule is premised upon the
idea that when the parties have deliberately put their engagements into
writing, in such terms as import a legal obligation, without any uncertainty
as to the object or extent of such engagement, it is conclusively presumed,
that the whole engagement of the parties, and the extent and manner of their
understanding, was reduced to writing. After this, to permit oral testimony,
or prior or contemporaneous conversations, or circumstances, or usages
. . . in order to learn what was intended, or to contradict what is written,
would be dangerous and unjust in the extreme. . . . Ordinarily, a merger
clause provision indicates that the subject agreement is completely inte-
grated, and parol evidence is precluded from altering or interpreting the
agreement. . . .
‘‘The parol evidence rule does not of itself, therefore, forbid the presenta-
tion of parol evidence, that is, evidence outside the four corners of the
contract concerning matters governed by an integrated contract, but forbids
only the use of such evidence to vary or contradict the terms of such a
contract. Parol evidence offered solely to vary or contradict the written
terms of an integrated contract is, therefore, legally irrelevant. When offered
for that purpose, it is inadmissible not because it is parol evidence, but
because it is irrelevant. By implication, such evidence may still be admissible
if relevant . . . to prove [inter alia] a collateral oral agreement which does
not vary the terms of the writing . . . .’’ (Citations omitted; internal quota-
tion marks omitted.) Weiss v. Smulders, 313 Conn. 227, 248–49, 96 A.3d
1175 (2014); see also Perricone v. Perricone, 292 Conn. 187, 194, 972 A.2d
666 (2009).
10
This factual finding is supported by the testimony of Stephen Miller, an
employee of Wells Fargo, who stated that the relevant account has been in
default status since January, 2013.