Casablanca v. Casablanca , 190 Conn. App. 606 ( 2019 )

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HECTOR L. CASABLANCA v.
ANOLAN CASABLANCA
(AC 40332)
Alvord, Keller and Beach, Js.
Syllabus
The defendant, whose marriage to the plaintiff previously had been dis-
solved, appealed to this court from the judgment of the trial court
resolving certain postjudgment motions. The trial court had incorporated
into the dissolution judgment the terms of an agreement between the
parties, which included a retirement asset provision that required the
plaintiff to transfer to the defendant via a qualified domestic relations
order, 50 percent of the value of the marital portion of his benefit in a
certain retirement fund, minus the amount of the defendant’s social
security benefit. After the plaintiff submitted a proposed qualified
domestic relations order to the defendant, the defendant refused to sign
it, and the plaintiff filed a motion to compel, which sought a court order
requiring the defendant to execute the proposed qualified domestic
relations order. Thereafter, the defendant filed a motion to open the
dissolution judgment on the grounds of mutual mistake and unilateral
mistake, and on the basis of equitable principles. She claimed that the
relevant part of the retirement asset provision that required the amount
of her anticipated future social security benefit to be subtracted from
the amount of her share of the plaintiff’s pension benefit was entered
upon mutual mistake, and provided an inequitable and unconscionable
windfall to the plaintiff. At a hearing on the parties’ motions, the trial
court granted a motion in limine filed by the plaintiff, which sought to
preclude the defendant from presenting parol evidence in support of
her motion to open the judgment. The court subsequently denied the
defendant’s motion to open, granted the plaintiff’s motion to compel
and ordered the defendant to sign the qualified domestic relations order.
On the defendant’s appeal to this court, held that the trial court errone-
ously determined that the retirement asset provision of the parties’
agreement was unambiguous, as the language of the provision was
susceptible to more than one reasonable interpretation: in light of the
language in the provision, there was more than one possible approach
to calculating the amount of the defendant’s social security benefit
and, therefore, the provision was ambiguous, and because the court’s
underlying determination that the provision was unambiguous was erro-
neous, its subsequent conclusion that the evidence regarding the intent
of the parties was irrelevant necessarily also was erroneous; accordingly,
a remand to the trial court was necessary for the court to hold a new
hearing on the parties’ motions and to determine the intent of the parties
after consideration of all the available extrinsic evidence and the circum-
stances surrounding the entering of the agreement.
Argued March 19—officially released June 18, 2019
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Hartford and tried to the court, Suarez, J.; judg-
ment dissolving the marriage and granting certain other
relief; thereafter, the court, Nastri, J., granted the plain-
tiff’s motion in limine, denied the defendant’s motion
to open the judgment, and granted the plaintiff’s motion
to compel; subsequently, the court, Nastri, J., denied
the defendant’s motion to reargue, and the defendant
appealed to this court; thereafter, the court, Nastri, J.,
granted in part the defendant’s motion for articulation;
subsequently, this court granted the defendant’s motion
for review but denied the relief requested therein.
Reversed; further proceedings.
Brandon B. Fontaine, with whom, on the brief, was
C. Michael Budlong, for the appellant (defendant).
Steven R. Dembo, with whom were Caitlin E. Koz-
loski and, on the brief, P. Jo Anne Burgh, for the appel-
lee (plaintiff).
Opinion
ALVORD, J. In this marital dissolution action brought
by the plaintiff, Hector L. Casablanca, the defendant,
Anolan Casablanca, appeals from the judgment of the
trial court resolving certain postjudgment motions. On
appeal, the defendant claims that the court erred by
(1) granting the plaintiff’s motion to compel the defen-
dant to execute the plaintiff’s proposed qualified domes-
tic relations order (QDRO)1 and (2) granting the
plaintiff’s motion in limine to preclude the defendant
from offering parol evidence in support of her motion
to open the dissolution judgment. We conclude, con-
trary to the decision of the trial court, that the provision
of the dissolution settlement agreement at issue in this
case is ambiguous. Thus, we determine that the court
should have considered extrinsic evidence of, and made
additional factual findings regarding, the parties’ intent
in agreeing to this provision before it denied the defen-
dant’s motion to open the judgment and adjudicated
the plaintiff’s motion to compel the defendant to sign
the proposed QDRO. Accordingly, we reverse the judg-
ment of the court and remand this case for further pro-
ceedings.
The record reveals the following relevant facts and
procedural history. The parties were married on July
23, 2005. The parties’ marriage was dissolved on January
21, 2016. On that date, the parties entered into a separa-
tion agreement (agreement). Article 11 of the agreement
(retirement asset provision), titled ‘‘Retirement/Stock
Accounts,’’ provided: ‘‘The husband shall transfer to the
wife, via QDRO, fifty (50%) percent of the value of the
marital portion of his benefit under the City of Hartford
Municipal Retirement fund, valued as of date of dissolu-
tion, minus the amount of the wife’s Social Security
Benefit. The assigned benefit shall be paid as a separate
interest payment over the life of the wife. The husband
shall retain his Mass Mutual 457 Plan and wife shall
make no claim to same. Attorney Jeffrey Winnick shall
prepare said QDRO(s) and the parties shall be equally
responsible for the cost of same.’’ The court, Suarez,
J., found the agreement fair and equitable and incorpo-
rated its terms into the dissolution judgment. Attorney
Winnick subsequently prepared a proposed QDRO and
transmitted it to the parties. The defendant refused to
sign it.
On May 23, 2016, the defendant filed the first of a
series of motions to open the dissolution judgment.2 On
October 25, 2016, the plaintiff filed a motion captioned
‘‘motion to compel,’’ which sought a court order requir-
ing the defendant to execute the proposed QDRO.3 On
February 14, 2017, the defendant filed the operative
motion to open the dissolution judgment on grounds
of mutual mistake and unilateral mistake, and on the
basis of equitable principles. Specifically, she con-
tended that the relevant part of the retirement asset
provision, the phrase ‘‘ ‘minus the amount of the wife’s
Social Security Benefit,’ was entered upon mutual mis-
take of the parties.’’ In her memorandum of law in
support of the motion, the defendant maintained that
the intent of the parties was to equalize the plaintiff’s
retirement pension benefits and the defendant’s social
security benefits. According to the defendant, she was
to receive 50 percent of the marital portion of the plain-
tiff’s monthly pension benefit until she became eligible
to receive social security benefits some thirty years
in the future, whereupon her assigned portion of the
monthly pension benefit would be reduced by the
amount of her monthly social security benefit she was
then receiving.
Under the proposed QDRO, however, the defendant’s
share of the pension benefit was reduced by immedi-
ately subtracting her anticipated future social security
benefit amount of $1479 a month at her full retirement
age (sixty-seven years old), which resulted in a current
monthly retirement asset payment to the defendant of
$242.75. She argued that because she was not entitled
to receive her social security benefit until age sixty-five,
approximately thirty years in the future, the proposed
QDRO provided the plaintiff with ‘‘an inequitable and
unconscionable windfall of $1479 per month . . . .’’
On February 22, 2017, the parties appeared for a
hearing on the defendant’s motion to open the judgment
and the plaintiff’s motion to compel. On the day of the
hearing, the plaintiff filed a motion in limine seeking to
preclude the defendant from presenting parol evidence,
including testimony of the defendant herself, in support
of her motion to open the judgment.4 According to the
plaintiff, the agreement was fully integrated and there-
fore no evidence could be introduced to vary or contra-
dict its terms. The plaintiff also argued that even if
the defendant was permitted to testify that she was
mistaken as to the language of the retirement asset
provision, her claim of mutual mistake would necessar-
ily fail on the basis that the plaintiff would testify in
opposition that the provision accurately reflected the
parties’ intent. After hearing oral argument on the
motion in limine, the court, Nastri, J., granted the
motion in part, stating: ‘‘The parol evidence rule prohib-
its the use of extrinsic evidence to vary [or] to contradict
the terms . . . of a fully integrated written contract.
The parties’ separation agreement is a fully integrated
written contract, therefore the motion in limine is
granted, the court will not hear parol evidence.’’ As to
the second ground challenging the merits of the defen-
dant’s mutual mistake claim, the court stated: ‘‘I’m not
going to grant the motion in limine on that basis.’’ The
court then asked whether the defendant’s counsel was
prepared to proceed, to which counsel replied: ‘‘I’m not
quite sure then, the court will not accept testimony
from my client?’’ The court responded: ‘‘Well the court
will not accept testimony that is contrary to the written
contract. I don’t know what your client is prepared to
testify to or what the substantive evidence is, but the
court will not hear parol evidence.’’
The court then held an evidentiary hearing, during
which the defendant presented the testimony of the
defendant, Attorney Winnick, Attorney Kim Duell (who
represented the plaintiff during the dissolution proceed-
ings), and the plaintiff. The attorney who represented
the defendant during the dissolution proceedings did
not testify. See footnote 4 of this opinion. At the conclu-
sion of the hearing, the court issued an oral ruling deny-
ing the motion to open. It stated: ‘‘The court finds that
there was no mutuality of mistake, there’s no mutual
mistake or any unilateral mistake and [it] is not uncon-
scionable or inequitable to enforce the contract. The
parties entered the agreement knowingly, voluntarily
and intelligently with the assistance of competent coun-
sel. Judge Suarez canvassed the parties and made a
finding that the agreement was fair and equitable.’’ With-
out hearing further evidence, the court thereafter
granted the plaintiff’s motion to compel and, affording
the defendant sufficient time to take an appeal from
the decision, ordered the defendant to sign the QDRO
on or before March 24, 2017. The court subsequently
issued a written order to the same effect.
On March 14, 2017, the defendant filed a motion to
reargue the court’s February 22, 2017 rulings. In her
motion, she argued that the court’s granting of the
motion in limine improperly precluded her from elic-
iting testimony as to the intent of the parties, which
would have been offered in support of her claims of
mutual and unilateral mistake.5 She further argued that
the testimony she sought to introduce in support of
her motion to open did not constitute parol evidence
because, as evidence of the parties’ intent, it was not
introduced to vary or contradict the terms of the
agreement. The plaintiff filed an objection on March
21, 2017. The court denied the motion to reargue on
the papers without comment, and this appeal followed.
The defendant sought articulation of the court’s deci-
sion denying the motion to reargue and its February
22, 2017 orders. The defendant’s fifth request asked the
court to articulate ‘‘whether, when granting the plain-
tiff’s motion in limine . . . to exclude parol evidence
and when enforcing that ruling during the February 22,
2017 hearing, the court: (a) considered whether article
11 of the parties’ separation agreement contained any
relevant ambiguities, particularly regarding its proper
application, and (b) determined that article 11 of the
separation agreement is clear and unambiguous.’’ The
plaintiff objected on the basis that the defendant had
not raised the issue of ambiguity during the hearing.
Over the plaintiff’s objection, the court granted the
request for articulation in part. Answering question five
in the affirmative, the court stated: ‘‘After carefully con-
sidering the arguments advanced in the defendant’s
motion to open, the testimony of the witnesses,6 the
well-articulated arguments of counsel and applicable
case law, the court found no ambiguities in Article 11.
In the absence of any ambiguity or uncertainty, the
evidence the defendant [sought] to introduce regarding
the intent of the parties or their object was irrelevant.’’7
(Footnote added.) The defendant filed a motion for
review of the court’s partial denial of articulation. This
court granted review but denied the relief requested.
On appeal, the defendant claims that the court erred
by granting both the plaintiff’s motion to compel the
defendant to execute the proposed QDRO and the plain-
tiff’s motion in limine to preclude parol evidence. We
begin by addressing the defendant’s claim of error as
to the court’s ruling on the motion to compel because
our resolution of whether the court properly found the
retirement asset provision unambiguous will inform our
consideration of the defendant’s claim that the trial
court improperly excluded extrinsic evidence in sup-
port of her motion to open the judgment.
In his motion to compel, the plaintiff requested an
order requiring the defendant to execute the QDRO.
As support, the plaintiff cited to the retirement asset
provision and a separate provision of the agreement
requiring the parties to ‘‘execute such additional docu-
ments as may be necessary to carry out the provisions
of this agreement.’’ (Internal quotation marks omitted.)
Captioned ‘‘motion to compel,’’ the motion in substance
sought enforcement of the agreement’s retirement asset
provision, which had been incorporated into the disso-
lution judgment. In order to grant the motion and order
compliance with the judgment in the manner requested
by the plaintiff, however, the court necessarily had to
determine that the judgment was clear. See Rozbicki
v. Gisselbrecht, 152 Conn. App. 840, 847, 100 A.3d 909
(2014) (‘‘[t]he trial court’s continuing jurisdiction to
effectuate its prior judgments, either by summarily
ordering compliance with a clear judgment or by inter-
preting an ambiguous judgment and entering orders to
effectuate the judgment as interpreted, is grounded in
its inherent powers, and is not limited to cases wherein
the noncompliant party is in contempt, family cases,
cases involving injunctions, or cases wherein the parties
have agreed to continuing jurisdiction’’ [internal quota-
tion marks omitted]), cert. denied, 315 Conn. 922, 108
A.3d 1123 (2015).8 Likewise, ‘‘[a] trial court has the
inherent power to enforce summarily a settlement
agreement as a matter of law when the terms of the
agreement are clear and unambiguous.’’ Audubon Park-
ing Associates Ltd. Partnership v. Barclay & Stubbs,
Inc., 225 Conn. 804, 811, 626 A.2d 729 (1993); see also
Matos v. Ortiz, 166 Conn. App. 775, 777, 144 A.3d 425
(2016) (‘‘[i]t is well established that a court may sum-
marily enforce—within the framework of existing litiga-
tion—a clear and unambiguous settlement agreement
reached during that litigation’’).
It is evident from the trial court’s articulation that it
did consider whether the retirement asset provision
was ambiguous and expressly concluded that it was
unambiguous. The court articulated as follows: ‘‘After
carefully considering the arguments advanced in the
defendant’s motion to open, the testimony of the wit-
nesses, the well-articulated arguments of counsel and
applicable case law, the court found no ambiguities in
article 11.’’ We disagree with this legal determination.
At the outset, we address the plaintiff’s argument
that this court should decline to review the defendant’s
claim of error as to the granting of the motion to compel.
He argues that the defendant, in failing to file a written
objection or to raise objection at the hearing, induced
or invited the granting of the motion to compel. We
first note that the plaintiff does not direct this court’s
attention to any authority requiring that the defendant
file a written objection to his motion. Furthermore, the
defendant’s counsel opposed the motion through his
attempt to elicit the defendant’s testimony as to why
she did not sign the QDRO when it was presented to
her. However, counsel was unable to pursue this line
of questioning, as the plaintiff’s counsel objected to the
questioning of the defendant regarding her defense to
the motion. The plaintiff’s counsel stated, ‘‘I’m going to
object in so far as it seeks to vary, contradict, and it
would be law of the case in terms of your ruling,’’ and
the court sustained the objection.9 Moreover, the record
reflects that the court viewed the motion to compel as
contested. In responding to a question from the plain-
tiff’s counsel regarding whether the parties would need
to return, the court stated: ‘‘[W]ell it depends on what
they take an appeal from, they may also appeal . . .
from the order granting the motion to compel.’’ We
conclude that the defendant’s claim of error as to the
granting of the motion to compel is reviewable.10
We begin by setting forth relevant law and our stan-
dard 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 con-
nected 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 lan-
guage 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. . . .
‘‘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 differ-
ent interpretations of the language in question does not
necessitate a conclusion that the language is ambigu-
ous. . . .
‘‘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 suscepti-
ble to more than one reasonable interpretation, the
contract is ambiguous.’’ (Internal quotation marks omit-
ted.) Gabriel v. Gabriel, 324 Conn. 324, 341–42, 152 A.3d
1230 (2016). ‘‘[T]he construction of a written contract
is a question of law for the court. . . . The scope of
review in such cases is plenary.’’ (Citations omitted;
internal quotation marks omitted.) Sachs v. Sachs, 60
Conn. App. 337, 342, 759 A.2d 510 (2000).11
With these principles in mind, we turn to the retire-
ment asset provision of the agreement in the present
case, which states: ‘‘The husband shall transfer to the
wife, via QDRO, fifty (50%) percent of the value of the
marital portion of his benefit under the City of Hartford
Municipal Retirement fund, valued as of date of dissolu-
tion, minus the amount of the wife’s Social Security
Benefit. The assigned benefit shall be paid as a separate
interest payment over the life of the wife. The husband
shall retain his Mass Mutual 457 Plan and wife shall
make no claim to same. Attorney Jeffrey Winnick shall
prepare said QDRO(s) and the parties shall be equally
responsible for the cost of same.’’ On the basis of the
language in this provision, we conclude that there is
more than one possible approach to calculating the
amount of the defendant’s social security benefit and,
therefore, that the provision is ambiguous. The ambigu-
ity of the retirement asset provision is framed by the
plaintiff’s Exhibit 4, the defendant’s social security
statement, which states, ‘‘Your payment would be about
$1479 a month at full retirement age,’’ and also states,
on the first line: ‘‘You have earned enough credits to
qualify for benefits. At your current earnings rate, if
you continue working until . . . your full retirement
age (67 years), your payment would be about . . .
$1479 a month; age 70, your payment would be about
. . . $1834 a month; age 62, your payment would be
about . . . $1030 a month.’’
There are at least three possible interpretations of the
retirement asset provision. First, that provision could
be interpreted as captured in the proposed QDRO, i.e.,
the defendant’s estimated full retirement (age sixty-
seven) payment of ‘‘about . . . $1479 a month’’ must be
subtracted, as though it were commencing immediately,
from the defendant’s 50 percent assigned monthly bene-
fit. Second, the provision could be read to require that
the defendant receives her 50 percent assigned benefit
until such time as she elects to receive her social secu-
rity benefit,12 at which future time her 50 percent
assigned benefit would be reduced by the monthly
social security benefit she actually elects to receive.
A third interpretation of the provision would require
calculating the present lump sum equivalent of the
defendant’s future estimated full retirement (age sixty-
seven) payment of ‘‘about . . . $1479 a month,’’ which
lump sum would then be converted to an immediate
stream of payments, each of which would be subtracted
from the 50 percent monthly assigned benefit.13
Because the language of the provision is susceptible
to more than one reasonable interpretation, the court
erroneously determined that the provision is unambigu-
ous. See Thomasi v. Thomasi, 181 Conn. App. 822, 831,
188 A.3d 743 (2018) (‘‘A word is ambiguous when it is
capable of being interpreted by reasonably well
informed persons in either of two or more senses. . . .
Ambiguous can be defined as unclear or uncertain, or
that which is susceptible of more than one interpreta-
tion, or understood in more ways than one.’’ [Internal
quotation marks omitted.]); Schimenti v. Schimenti,
181 Conn. App. 385, 398, 186 A.3d 739 (2018) (‘‘[b]ecause
the phrase ‘initiation fee’ in the modified judgment
could have referred to any one of three available levels
of membership in the Innis Arden Country Club, each
with its distinct initiation fee, that phrase, as used in
the modified judgment, was ambiguous’’).
On the basis of our conclusion that the court errone-
ously determined that the provision was unambiguous,
we conclude that a remand to the trial court is necessary
for the court to hold a new hearing on the parties’
motions14 and to determine the intent of the parties after
consideration of all the available extrinsic evidence and
the circumstances surrounding the entering of the
agreement. See Hirschfeld v. Machinist, 181 Conn. App.
309, 328, 186 A.3d 771 (court was required to resolve
ambiguity by considering extrinsic evidence and mak-
ing factual findings as to parties’ intent), cert. denied,
329 Conn. 913, 186 A.3d 1170 (2018); see also Parisi v.
Parisi, 315 Conn. 370, 386, 107 A.3d 920 (2015)
(remanding case to trial court to resolve ambiguity in
parties’ separation agreement ‘‘through a determination
of their intent after consideration of all available extrin-
sic evidence and the circumstances surrounding the
entering of the agreement’’); Fazio v. Fazio, 162 Conn.
App. 236, 251, 131 A.3d 1162 (same), cert. denied, 320
Conn. 922, 132 A.3d 1095 (2016).
After stating in its articulation that it found no ambi-
guities in the retirement asset provision, the court con-
tinued: ‘‘In the absence of any ambiguity or uncertainty,
the evidence the defendant [sought] to introduce
regarding the intent of the parties or their object was
irrelevant.’’ Because the court’s underlying determina-
tion that the provision was unambiguous was errone-
ous, its subsequent conclusion that the evidence
regarding the intent of the parties was irrelevant neces-
sarily also is erroneous. Because the issue may arise on
remand, we note the general legal principles concerning
the parol evidence rule and its exceptions.15
‘‘Parol evidence offered solely to vary or contradict
the written terms of an integrated contract is . . .
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 (1) to explain an
ambiguity appearing in the instrument; (2) to prove a
collateral oral agreement which does not vary the terms
of the writing; (3) to add a missing term in a writing
which indicates on its face that it does not set forth
the complete agreement; or (4) to show mistake or
fraud. . . . These recognized exceptions are, of
course, only examples of situations where the evidence
(1) does not vary or contradict the contract’s terms, or
(2) may be considered because the contract has been
shown not to be integrated, or (3) tends to show that the
contract should be defeated or altered on the equitable
ground that relief can be had against any deed or con-
tract in writing founded in mistake or fraud.’’ (Internal
quotation marks omitted.) Sullo Investments, LLC v.
Moreau, 151 Conn. App. 372, 378–79, 95 A.3d 1144
(2014); see Hirschfeld v. Machinist, supra, 181 Conn.
App. 328 (‘‘parol evidence, including conversations of
those involved in drafting the contract, may be used as
an aid in the determination of the intent of the parties
which was expressed by the written words’’ [internal
quotation marks omitted]).
This court cannot find facts in the first instance. See
Fazio v. Fazio, supra, 162 Conn. App. 251. Thus, a
remand is necessary for the trial court to hold a new
hearing on the parties’ motions16 and to ‘‘determine
the intent of the parties after consideration of all the
available extrinsic evidence and the circumstances sur-
rounding the entering of the agreement.’’ Id.; see also
Parisi v. Parisi, supra, 315 Conn. 386.
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
1
‘‘A QDRO is the exclusive means by which to assign to a nonemployee
spouse all or any portion of pension benefits provided by a plan that is
governed by the Employee Retirement Income Security Act, 29 U.S.C. § 1001
et seq.’’ (Internal quotation marks omitted.) Richman v. Wallman, 172 Conn.
App. 616, 617 n.1, 161 A.3d 666 (2017).
2
The May 23, 2016 motion to open was dismissed for lack of personal
jurisdiction due to insufficiency of process and insufficiency of service of
process. The motion to open the judgment that was adjudicated on its merits
and is at issue in this appeal was filed February 14, 2017.
3
On November 2, 2016, the plaintiff also filed a disclosure of expert
witness, stating that Attorney Winnick was expected to testify concerning
the QDRO ‘‘required by the judgment in this matter, the plaintiff’s City of
Hartford Municipal Retirement fund, the defendant’s social security benefit
and the calculation required to comply with the terms of the judgment.’’
The disclosure further stated that Winnick would testify that he drafted the
QDRO ‘‘in compliance with the terms of the judgment.’’
4
Following a motion filed by the plaintiff to disqualify Attorney Frank
Romeo from representing the defendant on the basis that he would be a
necessary witness in connection with the motion to open the judgment,
the court approved the parties’ stipulation that Attorney Romeo ‘‘shall not
provide any testimony or act as a witness of any type.’’ The parties’ stipula-
tion, regardless of whether it should have been accepted by the court under
the circumstances of this matter, as Attorney Romeo was the defendant’s
counsel at the time the separation agreement was executed, is no longer
in effect on remand.
5
Although she did not argue expressly that the evidence she sought to
introduce as to intent was admissible to explain an ambiguity in the retire-
ment asset provision, she argued relatedly as follows: ‘‘The intent of both
parties upon entering into article 11 of the separation agreement was to
equalize the value of [the plaintiff’s] Hartford retirement pension with [the
defendant], by assigning her 50 [percent] of his $5554/month pension, or
$2777.02/month, from the date of dissolution, until she was eligible for Social
Security benefits. This language fails to include precise language as to exactly
when [the defendant] is eligible for social security benefits, [and] the defini-
tion of the exact benefit, although it is logically presumed [the defendant]
would not be entitled to social security benefits until she reached the age
of [sixty-five]. The vague language also does not account for if the [defendant]
failed to reach the age of [sixty-five]. Thus, the vague language and omission
of exact dates and explanation of the term ‘benefit’ makes it impossible to
decipher the true intent of either party, making [the] plaintiff’s assertion
that mutual mistake does not exist . . . unfounded.’’ (Emphasis omitted.)
6
As noted previously, the attorney who represented the defendant during
the dissolution proceedings did not testify. See footnote 4 of this opinion.
7
As to a separate request for articulation regarding whether the QDRO
properly conformed to the judgment, the court stated that the motion to
open had not sought the court’s determination of this issue, nor was it raised
during the hearing.
8
A threshold determination as to ambiguity likewise would have been
required had the plaintiff sought relief by way of a motion for contempt
and for order. See Hansen v. Hansen, 80 Conn. App. 609, 609, 612, 836 A.2d
1228 (2003) (affirming finding of contempt on basis that defendant refused
to accede to proposed QDRO and holding that court did not abuse its
discretion in refusing to hear evidence of parties’ intent in formulating
portion of marital dissolution agreement, where language was susceptible
to only one meaning).
9
In responding to the argument of the plaintiff’s counsel on the motion
to compel, the defendant’s counsel stated: ‘‘I have to talk to my client to
see if she’s going to appeal this, but certainly the court can order whatever
the court wants.’’ He further stated: ‘‘I don’t know if you want to withhold
ruling on [the motion to compel] or if you want to order it and we can file
[our] appeal.’’
We conclude that the comments of the defendant’s counsel do not rise
to the level of implicating the doctrine of induced error, as that doctrine
has been applied. See Healey v. Haymond Law Firm, P.C., 174 Conn. App.
230, 241, 166 A.3d 10 (2017) (‘‘[t]he term induced error, or invited error, has
been defined as [a]n error that a party cannot complain of on appeal because
the party, through conduct, encouraged or prompted the trial court to make
the erroneous ruling’’ [internal quotation marks omitted]). The cases cited
by the plaintiff demonstrate the types of factual scenarios this court has
previously found to constitute encouraging or prompting the court to make
an erroneous ruling. See id., 242 (defendant induced alleged instructional
impropriety by affirmatively requesting language it sought to challenge on
appeal); Gorelick v. Montanaro, 119 Conn. App. 785, 796–97, 990 A.2d 371
(2010) (party could not claim error on appeal that court should not have
decided matter without live testimony where party had signed stipulation,
orally requested court to decide cases on basis of trial transcripts, exhibits,
briefs, and oral argument, and counsel assured trial court that parties wanted
to proceed in that fashion); Moran v. Media News Group, Inc., 100 Conn.
App. 485, 502, 918 A.2d 921 (2007) (‘‘[a] party may not attend an informal
hearing, fail to object to an issue being addressed, voluntarily enter into
an agreement and later claim that the commissioner should never have
entertained the issue that led to an agreement’’); State v. Maskiell, 100 Conn.
App. 507, 517, 918 A.2d 293 (under unique circumstances of case, party’s
failure to object was conduct that implicated the doctrine of induced error,
where defense counsel’s silence in the face of representation by prosecutor
that there was agreement as to admissibility of state’s evidence prompted
or encouraged court to rely upon report), cert. denied, 282 Conn. 922, 925
A.2d 1104 (2007).
10
The plaintiff also argues that the defendant did not argue during the
hearing that the QDRO was not drafted in conformance with the agreement.
The court stated as much in its articulation. Because we disagree with the
court’s conclusion that the agreement was unambiguous, and we remand
the matter for a new hearing during which the court is directed to hear
extrinsic evidence and make factual findings as to the parties’ intent regard-
ing the provision at issue, we do not reach the issue of whether the QDRO
conformed to the agreement. See Hirschfeld v. Machinist, 181 Conn. App.
309, 328, 186 A.3d 771 (court was required to resolve ambiguity by consider-
ing extrinsic evidence and making factual findings as to parties’ intent),
cert. denied, 329 Conn. 913, 186 A.3d 1170 (2018).
It is the plaintiff’s position that the defendant’s argument that the retire-
ment asset provision is ambiguous should not be reviewed because it was
not raised until her motion for articulation. We note that the trial court, in
its articulation, answered that it had considered whether the provision was
ambiguous, and, therefore, the circumstances do not amount to a trial by
ambuscade of the trial judge. Cf. Musolino v. Musolino, 121 Conn. App.
469, 477, 997 A.2d 599 (2010). Moreover, as discussed further infra, the issue
of whether the provision was ambiguous was necessarily subsumed within
the plaintiff’s motion to compel.
11
The plaintiff contends that the proper standard of review is one of abuse
of discretion and summarily provides in his brief the general standard of
review applicable to factual decisions in family matters. See Harlow v.
Stickels, 151 Conn. App. 204, 208, 94 A.3d 706 (2014) (‘‘[a]n appellate court
will not disturb a trial court’s orders in domestic relations cases unless the
court has abused its discretion or it is found that it could not reasonably
conclude as it did, based on the facts presented’’ [internal quotation marks
omitted]). Because the motion presented issues of law, including the con-
struction of the separation agreement’s retirement asset provision, we agree
with the defendant that the applicable scope of review is plenary.
12
As noted previously, the plaintiff’s exhibit 4 identified three different
approximate social security benefit amounts corresponding with the age of
the defendant upon retirement.
13
We express no opinion as to the feasibility or the validity of any of the
three illustrated interpretations of the retirement asset provision.
14
The plaintiff argues that the defendant has not claimed error in the denial
of her motion to open the dissolution judgment. The defendant responds
that she ‘‘indirectly challenges the motion to open ruling, by arguing that
the court erred by granting the motion in limine and misapplying the parol
evidence rule, which prevented the defendant from presenting the evidence
necessary to support her motion to open.’’ We agree with the defendant
that her claim is adequately raised as a challenge to the denial of her motion
to open the judgment.
15
The plaintiff argues in the alternative that any error in granting the
motion in limine was harmless. Because we reverse the decision of the trial
court on the basis that it improperly concluded that the provision was
unambiguous and we remand for a new hearing during which the court
should consider all available extrinsic evidence, we need not address the
claim of harmless error.
16
Because the court erroneously concluded as a matter of law that the
retirement asset provision was unambiguous, and thus did not make the
necessary factual determination of the intent of the parties in agreeing to
the provision, the court could not reasonably have reached a conclusion as
to whether the arguments raised by the defendant in her motion to open
the judgment had merit.