Casiraghi v. Casiraghi ( 2020 )

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CHRISTOPHER CASIRAGHI v. PAULA CASIRAGHI
(AC 42299)
Alvord, Prescott and Moll, Js.
Syllabus
The plaintiff, whose marriage to the defendant previously had been dis-
solved, appealed to this court from the judgment of the trial court
granting the defendant’s motions for contempt. He claimed that the
court improperly determined that he wilfully had failed to comply with
his financial obligations to the defendant despite a lack of any finding
by the court regarding his assertion that he lacked the ability to pay
and found that his investment in a certain franchise, C Co., breached
the parties’ separation agreement despite also finding that he was current
on his financial obligations to the defendant at the time that the invest-
ment was made. Held:
1. The trial court’s findings that the plaintiff engaged in wilful violations of
his financial obligations were clearly erroneous and it was an abuse of
discretion for the court not to have considered the issue of the plaintiff’s
ability to pay or to have rejected that defense before finding that his
failure to meet his financial obligations was wilful: the plaintiff unques-
tionably raised as a defense that he no longer could fully satisfy his
financial obligations as set forth in the dissolution judgment because
he had suffered a considerable drop in income due to health problems,
and, in support, provided evidence regarding his finances; moreover,
the court expressly credited some of the plaintiff’s evidence in its written
decision and made no indication that it did not credit any of the financial
information provided by the plaintiff and the defendant provided no
contrary financial records to the court, and the court’s finding of wil-
fulness stood in direct contradiction to the facts found related to the
plaintiff’s ability to pay; accordingly, the plaintiff met his burden of both
raising the inability to pay defense and presenting evidence supporting
it that was at least in part credited by the court.
2. The trial court’s interpretation of the parties’ separation agreement was
clearly erroneous, and its finding that the plaintiff breached the agree-
ment by investing in C Co. could not stand; the only evidence before
the court was that the plaintiff’s investment in C Co. occurred in July,
2015, which unquestionably was before the earliest date on which the
plaintiff’s obligation to make a lump sum installment payment arose
pursuant to the agreement, December, 2015, and, because the agreement
limited the plaintiff’s right to make such investments only in the event
that he was not current on his lump sum payment obligations, and no
such obligation existed at the time he invested in C Co., the court’s
finding was a misinterpretation of the express terms of the agreement.
Argued February 20—officially released October 13, 2020
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, Hon. Stan-
ley Novack, judge trial referee, rendered judgment dis-
solving the marriage and granting certain other relief
in accordance with the parties’ separation agreement;
thereafter, the court, Hon. Michael Shay, judge trial
referee, granted two motions for contempt and denied a
motion for contempt filed by the defendant, and granted
certain other relief, and the plaintiff appealed to this
court. Reversed in part; further proceedings.
Christopher Casiraghi, self-represented, the appel-
lant (plaintiff).
Paula Casiraghi, self-represented, the appellee
(defendant).
Opinion
PRESCOTT, J. The plaintiff, Christopher Casiraghi,
appeals from the judgment of the trial court rendered
on three postdissolution motions for contempt filed by
the defendant, Paula Casiraghi.1 Specifically, the court
granted two of the motions for contempt, concluding
that the plaintiff wilfully had failed to pay in full his
unallocated alimony and child support obligation to the
defendant or to make required installment payments
toward the satisfaction of a lump sum property distribu-
tion award. The court denied a third motion for con-
tempt that alleged that the plaintiff wilfully violated the
parties’ separation agreement (agreement), which was
incorporated into the dissolution judgment, by making
a postdissolution investment in a CrossFit franchise,
but nonetheless made a finding that the investment had
breached the parties’ agreement.2
On appeal, the plaintiff claims that the court improp-
erly (1) determined that he wilfully had failed to comply
with his financial obligations to the defendant despite
a lack of any finding by the court regarding his assertion
that he lacked the ability to pay, and (2) found that
his investment in the CrossFit franchise breached the
parties’ agreement despite also finding that he was cur-
rent on his financial obligations to the defendant at the
time that the investment was made, which, according
to the express terms of the agreement, rendered the
investment permissible.3 For the reasons that follow,
we agree that the court improperly granted the defen-
dant’s motions for contempt regarding the unallocated
support orders and the installment payments on the
lump sum property award because the court failed to
consider and to determine whether the plaintiff had the
ability to pay. We further agree that the court’s finding
that the plaintiff breached the agreement by investing
in the CrossFit franchise was clearly erroneous. We
accordingly reverse those aspects of the trial court’s
judgment, including the court’s remedial orders, and
remand for further proceedings on the improperly
granted motions for contempt. We otherwise affirm the
judgment of the court.
The record reveals the following relevant facts and
procedural history. The plaintiff and the defendant mar-
ried in August, 1997. For decades, the plaintiff has
owned and operated a successful business that special-
izes in the installation and repair of paddle tennis
courts. As the trial court indicated in its memorandum
of decision, the plaintiff considers his business to be
the premier company in this field, and it has operated,
at least until recently, profitably and without significant
competition. The business requires the plaintiff to travel
all over the country, particularly between the months
of January and July, to conduct tours of inspection that
the court described as ‘‘fly-drive weekends in which he
traditionally views and assesses literally hundreds of
paddle tennis courts.’’
In December, 2012, the plaintiff filed for a dissolution
of the parties’ marriage, and, on September 11, 2014,
the trial court, Hon. Stanley Novack, judge trial referee,
rendered a judgment of dissolution on the stipulated
ground that the parties’ marriage had broken down
irretrievably.4 The court’s dissolution judgment incor-
porates by reference a comprehensive, written agree-
ment entered into by the parties, both of whom were
represented by counsel. Of particular relevance to the
issues in the present appeal are articles II, V, and VI of
that agreement.
Article II of the agreement addresses the division of
the parties’ real property. It provides in relevant part
that, following the dissolution of the parties’ marriage,
the parties would continue to own their former marital
residence in Wilton as tenants in common, but that the
defendant would have the exclusive use and occupancy
of the home. The parties agreed to share equally in most
of the ownership and maintenance expenses postdisso-
lution, including with respect to, inter alia, payment of
the mortgage, real estate taxes, and an existing home
equity line of credit. The plaintiff is also responsible
for one third of the cost of the homeowners insurance.
Pursuant to the agreement, the defendant can elect to
sell the marital residence at any time following the
dissolution of the parties’ marriage in accordance with
the terms set forth in the agreement provided that, at
the latest, she list the home for sale sixty days before
their youngest daughter’s completion of high school.5
See footnote 4 of this opinion.
Pursuant to article V of the agreement, the plaintiff
agreed to complete a lump sum property distribution
of $485,950 to the defendant on or before December 1,
2024. The plaintiff further agreed to satisfy this obliga-
tion by making, at a minimum, ten annual installment
payments of $48,595, which were due each year on
December 1, beginning in 2015. Payments are to include
‘‘all interest due and payable on the remaining bal-
ance.’’6 Simple interest of 3 percent is to accrue on any
unpaid balance of the lump sum property distribution
beginning on March 1, 2019. The agreement also pro-
vides, however, that, notwithstanding the 3 percent
interest provision, ‘‘if the [plaintiff] tenders late a pay-
ment due under this [a]rticle V for any reason, defined
as more than thirty days following December 1 in any
given year, interest shall thereafter accrue on the
remaining principal balance at a rate of [10] percent
per annum.’’ The plaintiff further agreed that the lump
sum property payment as set forth in article V of the
agreement is to take ‘‘precedence to [his] undertaking
any new business ventures or opportunities’’ and that he
would not open any new business or make any capital
investment in a business of more than $25,000 ‘‘unless
he [was] current on his obligations to the [defendant]
pursuant to this [a]rticle V.’’ Significantly, paragraph
B of article V expressly provides that the plaintiff’s
obligation to make any lump sum property installment
payments and the accrual of any interest on that obliga-
tion is ‘‘suspended . . . during any month that the
[plaintiff] has paid all of the obligations set forth in
[article II],’’ which, as we have discussed, pertains to
the ownership and maintenance of the former marital
residence.
Article VI of the agreement sets forth the plaintiff’s
obligation to make monthly unallocated alimony and
child support payments to the defendant for a period
of twelve years. For the first seventy-eight months, the
plaintiff is required to pay to the defendant $16,666.66
per month, amounting to $200,000 per year, following
which the payments would step down to $11,666.66 for
an additional thirty months, and, finally, to $9000 a
month through the end of August, 2026. Article VI
expressly preserves the plaintiff’s rights to seek modifi-
cation pursuant to General Statutes § 46b-86 (b),7 but
precludes him from seeking modification on the basis
of any increase in the defendant’s earnings unless they
exceed $75,000 annually. It further precludes the plain-
tiff from seeking a downward modification for all other
reasons other than a ‘‘medical catastrophe’’ that pre-
vents him from operating his business or a declaration
of a recession by the National Bureau of Economic
Research, provided such recession also has a measur-
ably negative effect on his own employment, income,
or business.
At the time of dissolution, the plaintiff was in reason-
ably good health. In February, 2015, however, the plain-
tiff was diagnosed with atrial fibrillation. In July, 2015,
he had open-heart surgery to repair his heart’s mitral
valve, which was followed by what the trial court found
was ‘‘a four month period of recovery [in which] his
activities, including driving, were limited.’’ Although the
plaintiff was current with his unallocated support obli-
gations through the end of 2015, starting in January,
2016, he unilaterally began reducing his payment from
$16,667 to $10,000 per month.
In February, 2016, the plaintiff filed a motion seeking
a downward modification of the unallocated support
order, arguing that he had suffered a serious decline
in his health that rendered him unable to continue to
operate his business in the same manner and pace that
he had at the time of dissolution. The plaintiff also filed
a motion seeking relief from the payment terms of the
lump sum property distribution. According to the plain-
tiff, his declining health rendered his ability to comply
with the payment schedule set forth in the parties’
agreement impossible. He clarified that he was not seek-
ing a modification of the total amount of the lump sum
property distribution but, rather, was asking the court
to order only his obligation to make annual payments
suspended for two calendar years, to reduce the amount
of each annual payment by one half, and to extend the
number of annual payments as needed to allow for full
payment at the lower annual rate.8
In March, 2016, the defendant filed several motions
for contempt. One motion claimed that the plaintiff
had failed to make the required monthly, unallocated
support payments to her in May, 2015, and in January,
February, and March, 2016. Another motion claimed
that the plaintiff had failed to make the first annual
installment payment toward the lump sum property
distribution, which the defendant argued had become
due on December 1, 2015.9
In May, 2016, the defendant filed objections to the
plaintiff’s motion to modify the unallocated support
orders and to his motion seeking to alter the payment
terms of the lump sum property distribution. The defen-
dant argued that, under the express terms of the parties’
agreement, which the court incorporated into the disso-
lution judgment, the plaintiff could seek a modification
only in the event of a ‘‘medical catastrophe’’ that ‘‘pre-
vent[ed] him from operating his business . . . .’’
According to the defendant, although the plaintiff’s
asserted medical situation may have resulted in a
decline in the business, it did not prevent operation of
the business. Further, the defendant argued that the
plaintiff had received a full medical clearance from
his physicians and that he continued to participate in
physically strenuous leisure activities such as ice
hockey and CrossFit. With respect to the requested
changes to the lump sum property distribution order,
the defendant argued that the court lacked any authority
to modify the property settlement terms to which the
parties had agreed.
The plaintiff subsequently filed an objection to the
defendant’s motion for contempt regarding his lump
sum property payment obligation. According to the
plaintiff, he had been paying his portions of the owner-
ship and maintenance expenses for the former marital
home as required under article II of the agreement and,
accordingly, his obligation to begin payment of the lump
sum property distribution was suspended in accordance
with paragraph 5.1 B of article V of the agreement,
which provided that any payments and interest accrual
‘‘shall be suspended . . . during any month that the
[plaintiff] has paid all of the obligations set forth in
paragraph 2.1 [of article II].’’ Because his obligation
to make payments regarding the lump sum property
distribution was suspended, he argued, he could not
have violated a court order by not making a payment
on December 1, 2015, as alleged in the defendant’s
motion for contempt.10
On September 15, 2016, the defendant filed another
motion for contempt. The defendant claimed in this
motion that the plaintiff had opened a new business
called CrossFit Science Park and had invested in excess
of $25,000 in this new business despite not being current
on his obligations to the defendant under article V of
the agreement. The defendant argued that this was in
direct violation and wilful disregard of paragraph 5.1
H of article V of the agreement, which prohibits such
investments if the plaintiff was in arrears on his obliga-
tions to the defendant.
As a result of numerous continuances requested by
both parties and additional delays related to discovery
disputes, the court, Hon. Michael Shay, judge trial ref-
eree, did not hear argument on what the court described
as the parties’ ‘‘plethora of motions’’ until May 23, 2018.
That hearing continued the following day and, subse-
quently, to August 21, 2018. Each party filed updated
financial affidavits and child support guideline work-
sheets with the court.
On October 4, 2018, the court issued a memorandum
of decision disposing of the parties’ various motions.
With respect to the plaintiff’s motion to modify the
unallocated support orders, the court concluded that
the divorce decree unambiguously limited the plaintiff’s
right to seek a downward modification of the support
orders to three grounds, only one of which was impli-
cated by the plaintiff’s motion. Relevant to the plaintiff’s
motion to modify was the provision that the plaintiff
could seek modification if he suffered a ‘‘medical catas-
trophe’’ that ‘‘prevents him from operating his busi-
ness.’’ Although the court recognized that the plaintiff’s
heart surgery and atrial fibrillation were serious medical
conditions that were ‘‘somewhat debilitating’’ to the
plaintiff and, in the absence of the parties’ agreement,
likely would have constituted a substantial change in
circumstances warranting modification, his adverse
medical condition did not constitute a ‘‘catastrophe’’
within the usual meaning of that term nor, despite the
negative impacts on the business and loss of income,
did it prevent him from operating his business. Accord-
ingly, in light of the constraints on modification of the
support orders placed on the court by the parties’ agree-
ment, the court denied the motion to modify.
The court also denied the plaintiff’s so-called motion
to effectuate the judgment, in which he had sought
relief from his obligations under the lump sum property
distribution award. The court first recognized that the
lump sum property payment was an award of marital
property and that, generally, such awards are not sub-
ject to postjudgment modification. As argued by the
plaintiff, the court recognized its authority to enter
orders merely effectuating rather than modifying the
terms of a marital property settlement. The court con-
cluded, however, that the relief requested by the plain-
tiff would alter the details of the parties’ agreement
and, thus, constituted an impermissible modification.
The court also rejected the plaintiff’s argument that his
performance should be excused under the doctrine of
impossibility, concluding that the parties had contem-
plated the risk that the plaintiff might be unable to meet
his obligation due to an unexpected occurrence and
provided contractual contingencies, including the
accrual of interest and the application of future pro-
ceeds from the sale of the marital home against the obli-
gation.
The court granted the defendant’s motion for con-
tempt regarding unallocated child support and alimony
payments. The court determined that the support orders
were clear and unambiguous, and that the plaintiff
breached the orders by unilaterally choosing to reduce
his unallocated support payments to the defendant from
$16,666.66 per month to $10,000 per month, resulting
in an arrearage of $213,333.12. The court indicated that
the defendant had ‘‘demonstrated by clear and convinc-
ing evidence that the [plaintiff]’s actions amount[ed] to
wilful contempt,’’ although the decision is silent as to
the nature of this evidence.
The court also granted the defendant’s motion for
contempt regarding the lump sum property award, find-
ing that the plaintiff was in arrears on his obligation to
make annual payments toward the lump sum property
distribution. The court found that article V of the par-
ties’ agreement, incorporated into the judgment as an
order of the court, was clear and unambiguous. The
court further found that, as of the date of the hearing,
the plaintiff had ‘‘failed and neglected to make any
annual lump sum payments to the [defendant] com-
mencing December 1, 2015,’’ and that this failure consti-
tuted a breach of the court’s order. As a result of that
breach, the court concluded that the plaintiff was in
arrears on his obligation in the amount of $145,785
plus monthly accrued interest of $137,685.72. The court
again indicated that the defendant had ‘‘demonstrated
by clear and convincing evidence that the [plaintiff]’s
actions amount[ed] to wilful contempt.’’ The court did
not discuss the evidence and, as previously noted; see
footnote 10 of this opinion; failed to address the plain-
tiff’s argument that his duty to pay was suspended by
his continued payment of his obligations pertaining to
the former marital residence.
The court denied the defendant’s other motion for
contempt concerning the plaintiff’s investment in the
CrossFit franchise. The court found that, although the
plaintiff had breached the parties’ agreement, his
‘‘actions were made in good faith, with the reasonable
expectation that his financial situation would improve’’
and that the defendant had ‘‘failed to meet her burden
of proof, by clear and convincing evidence, that the
[plaintiff]’s actions amounted to wilful contempt.’’ The
plaintiff had argued that his investment in the CrossFit
franchise had occurred in 2015 at a time when he was
current on his obligations to the defendant and, there-
fore, the investment technically had not breached the
agreement. The court never expressly addressed that
argument in concluding that the plaintiff was in breach.
By way of relief, the court found that the total arrear-
age owed by the plaintiff to the defendant was
$500,298.55, and ordered him to make monthly install-
ment payments of $5000, beginning on November 1,
2018, until the sum was paid in full.11 The court also
awarded the defendant $75,000 as ‘‘a contribution
toward the legal fees and costs of suit incurred by [her]
in connection with this case,’’ which the plaintiff was
ordered to pay in monthly installments of $2500 begin-
ning on November 1, 2018. Finally, the court ordered a
contingent wage withholding order pursuant to General
Statutes § 52-362 (b) to secure future unallocated sup-
port payments. The court found that the plaintiff earned
net income from employment of $180,700 based on
gross income of $283,000, and that the plaintiff also
received additional unspecified income from a rental
property.
On October 22, 2018, the plaintiff filed a motion for
reargument, asserting many of the same arguments he
now makes on appeal.12 The plaintiff sought reargument
of the court’s findings of contempt regarding the lump
sum property distribution and unallocated support
orders and its determination that his CrossFit invest-
ment had breached the parties’ agreement. The plaintiff
also sought reargument of the court’s conclusions that
the doctrine of impossibility was inapplicable and that
the 10 percent interest penalty provision was not void
and unenforceable as against public policy. Finally, the
plaintiff sought reargument of the ‘‘structure of the
court’s order for payment of the arrearage and counsel
fees.’’ The court denied the motion for reargument on
November 6, 2018, without comment. This appeal
followed.
Following oral argument, we ordered the trial court
to issue an articulation responding to the following
questions: ‘‘In holding the plaintiff in contempt with
respect to his obligation to pay the defendant $200,000
per year in unallocated alimony and child support, did
the trial court conclude that he had an ability to pay
such support notwithstanding its finding that his net
yearly income as of August 21, 2018 was $180,700? If
the court concluded that the plaintiff had the ability to
make such payments, what facts did it find or rely upon
in reaching that conclusion? In holding the plaintiff in
contempt for failing to make annual lump sum property
payments to the defendant pursuant to article [V, para-
graph] 5.1 A and C of the parties’ separation agreement,
did the trial court find, pursuant to [paragraph] 5.1 B,
that the plaintiff had not paid his obligations set forth
in article [II, paragraph] 2.1 of the agreement? If the
court concluded that the plaintiff had not complied with
[paragraph] 2.1, what facts did it find or rely in reaching
that conclusion?’’
The court issued an articulation on March 17, 2020.
The court indicated that it ‘‘made no specific finding
that the plaintiff had the ability to pay the unallocated
alimony and child support, either at the time of his
motion or at the time of the judgment.’’ The court went
on to note, however, that the $180,700 of income
reported on the plaintiff’s updated August 21, 2018
financial affidavit reflected only a partial year’s income.
The court further indicated that, although it made no
specific finding that the plaintiff had not paid all of the
obligations set forth in article II, paragraph 2.1 of the
agreement, the court believed that the defendant had
offered unrebutted evidence that the plaintiff did not
pay his share of the homeowners insurance premium
in 2016, one of the obligations listed in paragraph 2.1,
and, therefore, ‘‘the court proceeded as if there was
no suspension’’ of his obligation to begin making the
installment payments on the lump sum property distri-
bution order contained in article V of the agreement.13
We note that the parties were given an opportunity
to file supplemental memoranda addressing the trial
court’s articulation, but neither party filed a response.
We turn now to the issues raised by the plaintiff on
appeal.
I
The plaintiff first claims that the court improperly
granted two of the defendant’s motions for contempt.
Specifically, he claims that the court improperly found
him in wilful noncompliance with his unallocated sup-
port obligation and with the lump sum property distribu-
tion order despite conclusive and unrebutted evidence
that he lacked the ability to pay because of a reduction
in his annual earnings. We agree that the court failed
to give due consideration to whether the plaintiff had
the ability to pay his financial obligations, particularly
in light of the court’s express findings regarding the
amount of the plaintiff’s net income.14 This lapse in
the court’s analysis leaves us with a definite and firm
conviction that the court’s findings that the plaintiff
engaged in wilful violations of his financial obligations
are clearly erroneous. Accordingly, we reverse the
court’s granting of the defendant’s motions for con-
tempt and the resulting remedial orders, and remand
for further proceedings on the motions, including a new
hearing to identify properly any arrearage that may be
owed to the defendant and to craft new remedial orders
as appropriate.15
‘‘Contempt is a disobedience to the rules and orders
of a court which has power to punish for such an
offense. . . . If the underlying court order was suffi-
ciently clear and unambiguous, we . . . determine
whether the trial court abused its discretion in issuing
. . . a judgment of contempt, which includes a review
of the trial court’s determination of whether the viola-
tion was wilful or excused by a good faith dispute or
misunderstanding. . . . [T]his court will not disturb
the trial court’s orders unless it has abused its legal
discretion or its findings have no reasonable basis in
fact. . . . It is within the province of the trial court to
find facts and draw proper inferences from the evidence
presented. . . . [E]very reasonable presumption will
be given in favor of the trial court’s ruling, and [n]othing
short of a conviction that the action of the trial court
is one which discloses a clear abuse of discretion can
warrant our interference. . . .
‘‘To constitute contempt, a party’s conduct must be
wilful. . . . Noncompliance alone will not support a
judgment of contempt. . . . The inability of a party to
obey an order of the court, without fault on his part,
is a good defense to the charge of contempt. . . . The
contemnor must establish that he cannot comply, or
was unable to do so.’’ (Citations omitted; internal quota-
tion marks omitted.) Brody v. Brody, 145 Conn. App.
654, 662, 77 A.3d 156 (2013).
Accordingly, a party who is unable to comply with
financial orders contained in a dissolution judgment
due to a demonstrable inability to pay has a proper
defense to a claim of contempt. See, e.g., Afkari-
Ahmadi v. Fotovat-Ahmadi, 294 Conn. 384, 397, 985
A.2d 319 (2009) (‘‘[i]nability to pay is a defense to a
contempt motion’’ (internal quotation marks omitted));
Bauer v. Bauer, 173 Conn. App. 595, 600, 164 A.3d 796
(2017) (‘‘inability of an obligor to pay court-ordered
alimony, without fault on his part, is a good defense to
a contempt motion’’). ‘‘Whether [a party has] estab-
lished his inability to pay the order by credible evidence
is a question of fact. Questions of fact are subject to the
clearly erroneous standard of review. . . . A finding
of fact is clearly erroneous when there is no evidence
in the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed. . . . Because
it is the trial court’s function to weigh the evidence
. . . we give great deference to its findings.’’ (Internal
quotation marks omitted.) Afkari-Ahmadi v. Fotovat-
Ahmadi, supra, 397–98.
In the present case, the plaintiff unquestionably
raised as a defense before the trial court that he no
longer could fully satisfy his financial obligations as
set forth in the dissolution judgment beginning in 2016
because he had suffered a considerable drop in income
due to his health problems.16 In support of this defense,
the plaintiff provided testimony regarding his finances.
Through that testimony, he entered into evidence his
federal tax returns for 2014 through 2016. These returns
show the plaintiff’s net income declined from $474,128
in 2014, when the agreement was executed, to $220,324
in 2015, and $205,595 in 2016.17 He also submitted yearly
profit and loss statements from his business, including
one for 2017 showing that his income from the business
in 2017 was similar to the two prior years. Finally, he
filed a financial affidavit at the August, 2018 hearing
from which his 2018 annual gross income could be
calculated as $282,880, resulting in a net annual income
of $180,700. The record discloses no documentary evi-
dence showing any additional substantial sources of
income for the plaintiff.18
The court makes no indication in its memorandum
of decision that it did not credit any of the financial
information provided by the plaintiff. The defendant
provided no contrary financial records to the court,
and, although the defendant asserted at oral argument
before this court and in her testimony to the trial court
her belief that the plaintiff was ‘‘cooking the books’’
with respect to the amount of money available to him
through his business, she also conceded that her lawyer
had not offered evidence of any improper accounting to
the court in support of her motions. The court expressly
credited the plaintiff’s financial affidavit provided to
the court at the August, 2018 hearing in its written
decision, finding that ‘‘the [plaintiff] has a net income
from employment in the amount of $180,700 based upon
a gross income of $283,000.’’
It is undisputed that the plaintiff’s yearly unallocated
support obligation to the defendant alone totals
$200,000. On top of that obligation are the additional
requirements that the plaintiff pay his share of expenses
related to the ownership and maintenance of the former
marital home, which the parties agreed amounts to, at
a minimum, an additional $40,000 annually. The plaintiff
is also required under the parties’ agreement to maintain
both medical insurance for the children and a $2.5 mil-
lion life insurance policy benefitting the defendant,
which annual premiums total approximately $42,000.
To the extent that he is also responsible for making
the approximately $48,000 yearly lump sum property
distribution installment payments, his total obligations
to the defendant and the children exceed $300,000, and
this estimate of his total obligations does not account
for any of his reasonable and necessary living expenses.
In short, the plaintiff’s financial obligations appear
clearly to exceed the income attributed to him by the
trial court.
Although the court explained that it lacked any
authority to alter the parties’ agreement, it nevertheless
failed to set forth any analysis of the plaintiff’s finances
either at the time of the alleged contempt or as of the
date of the hearing on the defendant’s motions, and it
acknowledges in its articulation that it ‘‘made no spe-
cific finding that the plaintiff had the ability to pay the
unallocated alimony and child support, either at the
time of his motion or at the time of the judgment.’’ A
party’s inability to pay in accordance with a court order
is a proper defense to a motion for contempt; see Afk-
ari-Ahmadi v. Fotovat-Ahmadi, supra, 294 Conn. 397;
and the plaintiff met his burden of both raising that
defense and presenting evidence supporting it—evi-
dence that was at least in part credited by the trial
court. It was an abuse of discretion for the court not
to have considered the issue of the plaintiff’s ability to
pay or to have rejected that defense out of hand before
finding that the plaintiff’s failure to meet his financial
obligations to the defendant was wilful. Because the
court’s finding of wilfulness stands in direct contradic-
tion to the facts found by the court related to the plain-
tiff’s ability to pay, we are left with the definite and
firm conviction that the finding is clearly erroneous
and, thus, cannot stand. Accordingly, we remand for a
new hearing at which his defense may be duly consid-
ered by the court. Furthermore, because the plaintiff’s
ability to pay is a fact that also should have been consid-
ered by the court in constructing its remedial orders,
we necessarily must also reverse those orders.
This decision should not be read as countenancing
the plaintiff’s decision to engage in self-help by unilater-
ally reducing his payments to the defendant prior to
seeking modification or as taking any position on
whether, in fact, the plaintiff has the ability to meet the
substantial financial obligations to which he agreed,
which agreement also included strictly limiting his
rights to seek modification. Nevertheless, because the
only evidence presented and relied on by the court in
its decision supports the plaintiff’s argument that he
was unable to continue to pay in full his unallocated
support payments and other financial obligations, and
the trial court failed to reconcile its findings regarding
the plaintiff’s income with its determination that the
plaintiff’s failure to pay the defendant was wilful, we
conclude that the trial court improperly found him in
contempt and granted the defendant’s motions.19
II
The plaintiff also claims that the court improperly
determined that his investment in the CrossFit franchise
breached the parties’ agreement. Specifically, the plain-
tiff argues that the court misinterpreted the relevant
portion of the parties’ agreement. We agree.
‘‘Because a separation agreement incorporated into
a dissolution decree is in the nature of a contract, we
note the following general principles of contract inter-
pretation. A contract must be construed to effectuate
the intent of the parties, which is determined from the
language used interpreted in the light of the situation
of the parties and the circumstances connected with the
transaction. . . . Where the language of the contract
is clear and unambiguous, the contract is to be given
effect according to its terms. . . . [A]ny ambiguity in
a contract must emanate from the language used in
the contract rather than from one party’s subjective
perception of the terms. . . . A court will not torture
words to import ambiguity where the ordinary meaning
leaves no room for ambiguity . . . . When construing
the contract, we are mindful that [t]he 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. . . . In
giving effect to all of the language of a contract, the
law of contract interpretation . . . militates against
interpreting a contract in a way that renders a provision
superfluous.’’ (Citations omitted; internal quotation
marks omitted.) Flaherty v. Flaherty, 120 Conn. App.
266, 269–70, 990 A.2d 1274 (2010). Applying these princi-
ples to the agreement incorporated into the dissolution
judgment in the present case, we conclude that the
trial court’s interpretation of the agreement was clearly
erroneous, and, thus, its finding that the plaintiff
breached the agreement cannot stand.
The agreement expressly and unambiguously pro-
vides that the plaintiff’s obligation to complete the lump
sum property transfer to the defendant in accordance
with article V of the agreement was to take ‘‘precedence
to [his] undertaking any new business ventures or
opportunities . . . .’’ To ensure this, the plaintiff
agreed to restraints on his right to open or to invest in
new business ventures postdissolution. Specifically, the
agreement provides that, going forward, the plaintiff,
either individually or through his business, could not
open any new businesses or make any capital invest-
ment in a business of more than $25,000 ‘‘unless he is
current on his obligations to the [defendant] pursuant
to this [a]rticle V.’’ (Emphasis added.) The agreement
further provided in relevant part that any installment
payments toward the satisfaction of the lump sum prop-
erty award set forth in article V of the agreement ‘‘shall
be payable annually commencing on December 1, 2015
. . . .’’ (Emphasis added.)
In its memorandum of decision, the court found that
the provision limiting the plaintiff’s right to make post-
dissolution investments ‘‘was certainly clear and unam-
biguous . . . .’’ It also found that the plaintiff made an
investment in the CrossFit franchise ‘‘[a]t some point
in 2015,’’ and that ‘‘his investment was well in excess
of [$25,000].’’ The only evidence before the court was
that this investment occurred in July, 2015, which
unquestionably was before the earliest date on which
the plaintiff’s obligation to make a lump sum installment
payment arose pursuant to article V of the agreement.
The court appears not to have considered this fact,
however, in reaching its conclusion that the plaintiff
‘‘was clearly in breach’’ of the investment limiting order.
Legally and logically, however, because the agreement
limited the plaintiff’s right to make investments only in
the event that he was not current on his lump sum
payment obligations, and no such obligation existed at
the time he invested in the CrossFit franchise, the
court’s finding was clearly erroneous and a misinterpre-
tation of the express terms of the agreement. Although
we reverse the court’s factual finding, because the court
denied the motion for contempt, it is unnecessary to
reverse the court’s judgment on the motion.
The judgment is reversed with respect to the granting
of the defendant’s two motions for contempt related
to the unallocated support orders and the lump sum
property distribution award, the related remedial
orders, and with respect to the finding that the plaintiff
was in breach of the investment limitation provision
contained in article V of the agreement, and the case
is remanded for a new hearing on the motions for con-
tempt, at which the court may recalculate any arrearage
owed by the plaintiff to the defendant and impose rea-
sonable remedial orders as appropriate; the judgment
is affirmed in all other respects.
In this opinion the other judges concurred.
1
According to the plaintiff’s appeal form and his statement of the issues
on appeal, the plaintiff ostensibly also appeals from the court’s denial of
his own postdissolution motions, which sought (1) a downward modification
of his unallocated alimony and child support obligation, (2) relief from the
payment terms of a lump sum property distribution award, and (3) an
opportunity to reargue these rulings and its granting of the motions for
contempt. The plaintiff, however, has not briefed any specific claims of
error with respect to these other rulings and, thus, has abandoned those
aspects of his appeal. See Corrarino v. Corrarino, 121 Conn. App. 22, 23
n.1, 993 A.2d 486 (2010) (failure to brief claims of error with respect to
rulings listed on appeal form constitutes abandonment of any claim that
could have been raised); see also Traylor v. State, 332 Conn. 789, 809 n.17,
213 A.3d 467 (2019) (‘‘[r]aising a claim at oral argument is not . . . a substi-
tute for adequately briefing that claim’’). Although we are solicitous of self-
represented parties, ‘‘the right of self-representation provides no attendant
license not to comply with relevant rules of procedural and substantive
law.’’ (Internal quotation marks omitted.) Tonghini v. Tonghini, 152 Conn.
App. 231, 240, 98 A.3d 93 (2014). ‘‘It is necessary to this court’s review of
a party’s claims on appeal that his brief contain, inter alia, argument and
analysis regarding the alleged errors of the trial court, with appropriate
references to the facts bearing on the issues raised.’’ Zappola v. Zappola,
159 Conn. App. 84, 86, 122 A.3d 267 (2015).
2
Although the court denied the motion for contempt, the plaintiff is
aggrieved by the court’s adverse factual finding with respect to that motion
because any breach of the agreement could be used against him in subse-
quent contempt proceedings. See McKeon v. Lennon, 131 Conn. App. 585,
607, 27 A.3d 436, cert. denied, 303 Conn. 901, 31 A.3d 1178 (2011).
3
Both parties were represented by counsel at the time of the dissolution
judgment and throughout the postjudgment proceedings that underlie this
appeal. Each has elected, however, to appear as a self-represented party
before this court. The briefs provided to this court lack needed clarity with
respect to the issues being raised and analysis of those issues. See footnote
1 of this opinion. Nonetheless, we address all issues properly raised and
sufficiently briefed, albeit not necessarily in the same order. With respect
to additional claims of error that the defendant has attempted to raise for
the first time in her appellee’s brief, all such claims are unreviewable because
she failed to file her own appeal or a cross appeal challenging those aspects
of the court’s judgment. See also footnote 12 of this opinion.
4
The parties have three daughters from the marriage, who, at the time
of the dissolution judgment, were fourteen, twelve, and nine years old.
5
The agreement provides that the defendant is entitled to any equity left
in the property provided that 50 percent of that amount is to be credited
as an offset against any balance remaining on the plaintiff’s lump sum
property obligation to the defendant as described in article V of the agree-
ment, and, if such credit exceeds any balance due, the resulting overage is
to be paid directly to the plaintiff.
6
The plaintiff is permitted under the agreement to prepay all or any part
of the lump sum obligation at any time.
7
General Statutes § 46b-86 (b) provides in relevant part that, following a
dissolution of marriage awarding alimony, ‘‘the Superior Court may, in its
discretion and upon notice and hearing, modify such judgment and suspend,
reduce or terminate the payment of periodic alimony upon a showing that
the party receiving the periodic alimony is living with another person under
circumstances which the court finds should result in the modification, sus-
pension, reduction or termination of alimony because the living arrange-
ments cause such a change of circumstances as to alter the financial needs
of that party. In the event that a final judgment incorporates a provision of
an agreement in which the parties agree to circumstances, other than as
provided in this subsection, under which alimony will be modified, including
suspension, reduction, or termination of alimony, the court shall enforce
the provision of such agreement and enter orders in accordance therewith.’’
8
The plaintiff captioned his motion as a motion ‘‘to effectuate judgment,’’
making the argument that, because he was not seeking a reduction in the
total amount of the lump sum distribution, the court could, pursuant to
its general authority to make orders necessary to effectuate a dissolution
judgment, alter the payment terms that were set forth in the parties’ agree-
ment. The court clearly rejected this argument by denying the motion, and
this is among those determinations that the plaintiff has failed properly to
challenge in the present appeal. See footnote 1 of this opinion.
9
Another motion for contempt concerned the plaintiff’s alleged failure to
pay his share of certain medical and extracurricular expenses for the chil-
dren. Although the court denied that motion, concluding that the defendant
had failed to demonstrate that the plaintiff’s actions were wilful, it neverthe-
less concluded that the plaintiff owed the defendant an arrearage of $3494.71
with respect to these items and incorporated that amount into the cumulative
total arrearage owed to the defendant.
10
In its decision granting the motion for contempt, the trial court failed
to address this argument.
11
This amount later was amended by the court to $510,298.55, to reflect
additional arrearages accumulated by the plaintiff for failing to pay in full
his unallocated support obligations in September and October, 2018, which
were not accounted for in the court’s original October 4, 2018 decision. The
change was made in response to a subsequent motion for contempt filed
by the defendant and granted by the court. Additional motions for contempt
against the plaintiff currently are pending before the trial court.
12
On October 23, 2018, the defendant filed a ‘‘motion for articulation’’
with the trial court in which she essentially challenged the court’s finding
that the plaintiff was current on his obligations to the defendant through
2015 and, accordingly, sought changes to the court’s calculation of the
arrearage owed to her by the plaintiff. She also filed a motion to reargue,
seeking an order for immediate payment of all arrearages rather than
monthly installment payments. On October 24, 2018, the defendant filed a
second motion to reargue raising additional issues. The court denied all
three motions on November 6, 2018.
To the extent that the defendant was aggrieved by the court’s October 4,
2018 rulings or the denial of her subsequent motions to reargue, she did
not file an appeal or cross appeal from those judgments and, accordingly,
any issues challenging the court’s rulings, to the extent that they are raised
in her appellee’s brief, are not properly before us. See Practice Book § 61-
8; Gagne v. Vaccaro, 311 Conn. 649, 661–62, 90 A.3d 196 (2014).
13
In its articulation response, the trial court seeks to justify the lack of
any findings regarding the plaintiff’s ability to pay and the status of his
obligations set forth in article II, paragraph 2.1 of the agreement, which was
relevant to whether the lump sum property distribution payments were
required, by pointing to evidence in the record that arguably may have
supported implicit findings that he had the ability to pay and that he was
not current on his obligations regarding the former marital home. By stating
that it never made such findings, however, these recitations of fact, even
if they find support in the record, are unavailing because they cannot substi-
tute for the initial lack of findings. See Koper v. Koper, 17 Conn. App. 480,
484, 553 A.2d 1162 (1989) (‘‘[a]n articulation is not an opportunity for a trial
court to substitute a new decision nor to change the reasoning or basis of
a prior decision’’).
14
As previously indicated, with respect to the lump sum property pay-
ments, the court failed to address in its decision whether the plaintiff’s
obligation to make one or more of the lump sum property installment
payments at issue was suspended in accordance with the express terms of
the agreement because the plaintiff was paying his portion of the ownership
and maintenance of the former marital home. The court indicated in its
response to an articulation request from this court that it never made any
specific finding that the plaintiff was not current on his obligations under
article II of the agreement and had ‘‘proceeded as if there was no suspension.’’
Although the plaintiff has failed to raise or brief this issue as a claim of
error on appeal, the question of whether lump sum property payments were
due and owing should be considered by the court on remand in ruling on
the motion for contempt and in recalculating the amount of any arrearage
owed by the plaintiff. Any suspension of the plaintiff’s payment obligation
would have affected a proper determination by the court of whether the
plaintiff was in contempt for failing to pay the lump sum property order
and also would have affected the calculation of the total amount of any
arrearage owed to the defendant by the plaintiff. Although the plaintiff has
not briefed this issue as a separate basis for reversal of the contempt finding,
that does not preclude its consideration by the trial court on remand.
15
‘‘[E]ven in the absence of a finding of contempt, a trial court has broad
discretion to make whole any party who has suffered as a result of another
party’s failure to comply with a court order.’’ (Internal quotation marks
omitted.) Brody v. Brody, 153 Conn. App. 625, 636, 103 A.3d 981, cert. denied,
315 Conn. 910, 105 A.3d 901 (2014). In the present case, the lack of any
findings by the court regarding the plaintiff’s past or present ability to pay
his obligations not only fatally undermines the court’s finding of contempt
but also the court’s remedial orders.
16
The plaintiff only filed a written objection to the motion for contempt
directed at his failure to make installment payments toward the lump sum
property award, and, in that objection, argued only that his obligation to
make installment payments was suspended under the terms of the agreement
and, thus, he could not be in violation for nonpayment. Nonetheless, it is
clear from our review of the record, which includes the transcripts of the
hearing, as well as other pleadings before the court, that the plaintiff clearly
placed the court and the defendant on notice of his claim that he was unable
fully to satisfy his payment obligations under the terms of the dissolution
judgment because he did not have the financial means to meet his obli-
gations.
17
We have calculated these net income figures from the plaintiff’s 1040
federal income tax returns by taking the adjusted gross income listed on
line 37 of the return, adding back to that figure any alimony deducted from
the adjusted gross income for that year, and subtracting the total tax liability
paid by the plaintiff as listed on line 63 of the return. We chose this method
because it is illustrative of the actual net income that was available to the
plaintiff to satisfy his financial obligations to the defendant under the divorce
decree, including the unallocated support payments. Our calculations are
not meant to be viewed as factual findings, which we cannot make; see
Zitnay v. Zitnay, 90 Conn. App. 71, 81, 875 A.2d 583, cert. denied, 276 Conn.
918, 888 A.2d 90 (2005); but merely as reflecting the undisputed evidence
that was before the trial court.
18
The court stated that the plaintiff also received ‘‘rental income from his
property at 300 Post Road in Westport.’’ This is the only finding by the court
of any potential additional income source other than self-employment, but
the court does not state the amount of the purported rental income. Form
8582 attached to the plaintiff’s 2016 federal tax return lists the net annual
rental income from the Post Road property as only $9808. The plaintiff’s
2018 financial affidavit, credited by the court, lists no amount of income
derived from rental and income producing property. In any event, this rela-
tively small amount of additional income does not alter our analysis.
19
The plaintiff raises and briefs as an additional claim on appeal that the
court improperly concluded that the requirement in the parties’ agreement
that he pay 10 percent interest on any outstanding balance if he failed to
make timely installment payments toward the lump sum property award
was not a penalty that was void as against public policy. Because we reverse
the court’s decision finding the plaintiff in contempt for failing to make the
lump sum property installment payments and having determined that a
recalculation is needed regarding the total of any arrearage owed to the
defendant, it is unnecessary to resolve any present challenge to the court’s
application of the 10 percent interest provision. Because it is unclear whether
that issue likely is to arise again on remand, we decline to address the issue
at this time.