Digiuseppe v. Digiuseppe

174 Conn.App. 855

167 A.3d 411

Elizabeth G. DIGIUSEPPE

v.Vincent J. DIGIUSEPPE

(AC 38679).

Appellate Court of Connecticut.

Argued March 22, 2017

Officially released July 25, 2017

Steven H. Levy, Torrington, for the appellant (defendant).

Campbell D. Barrett, Hartford, with whom were Johanna S. Katz, and, on the brief, Jon T. Kukucka, Hartford, for the appellee (plaintiff).

Lavine, Sheldon and Keller, Js.

KELLER, J.

The defendant, Vincent J. DiGiuseppe, appeals from the judgment of the trial court rendered when it denied a postdissolution motion for contempt filed by the plaintiff, Elizabeth G. DiGiuseppe, and ordered him to pay what he owed for his children's college expenses. The issue on appeal concerns the extent of the defendant's obligation to pay for the college expenses of the parties' two children beyond what is covered by Connecticut Higher Education Trust (CHET) accounts that the parties had established for each of them. The defendant claims that the court erred in (1) not finding a latent ambiguity in the provision of the parties' separation agreement (agreement) regarding college expenses when examining it in conjunction with another document signed by the parties entitled "Education Support Orders [ General Statutes § 46b–56c ]" (form), which would render the agreement unenforceable, and (2) its determination that the defendant is responsible for 100 percent of college expenses of the two children without limitation. We conclude that the defendant failed to preserve either of his claims before the trial court, and, therefore, we decline to review them.

The following facts, as found by the court in its written memorandum of decision, and procedural history are relevant to this appeal: "The parties were divorced on June 25, 2013. Their [agreement] contained a provision for the payment of the educational expenses of their two children, who are currently [nineteen] and [eighteen] years old. [The plaintiff] has moved for contempt based on [the defendant's] failure to pay the children's college expenses. ...

"The parties do not communicate. When [the plaintiff] learned that [the defendant] was refusing to pay the children's college expenses, [the plaintiff] attempted to contact [the defendant], but he refused to communicate with her.

"At the time of the hearing on the motion for contempt, the parties' son was entering his second year at Bentley College, and their daughter was hoping to begin her freshman year at Syracuse University. The provisions for the postmajority educational expenses are set forth in paragraph 8 of the parties' [separation] agreement.

"Paragraph 8.1 of the parties' separation agreement provides: 'The parties established CHET accounts for the benefit of each of their children. These CHET accounts shall be used for the college education of both children. Should the CHET accounts be insufficient to educate both of the parties' children, the [defendant] shall be solely responsible for the additional college education expenses for the benefit of the parties' children.'

"Paragraph 8.2 provides: 'In the event there is a balance in the CHET accounts after the children have completed their college educations, the parties may divide any remaining balance equally. However, in the event the [defendant] contributes any additional funds to these accounts after the date of dissolution, the [defendant] shall be entitled to a refund of these contributions if all of the CHET account funds are not used for the college education of the parties' children.'"The parties had engaged a mediator, Attorney Jean-nine Talbot, to assist them in settling the issues arising from the impending dissolution of their marriage.... As she does in every mediation where the parties have a child under the age of [twenty-three], Attorney Talbot advised the parties concerning the provisions of ... General Statutes [§] 46b–56c.¹ The language that the parties chose to put in their agreement did not reference the statute.

"Since Attorney Talbot did not, as mediator, represent either party, she advised them that they had an opportunity to take their proposed agreement to their own attorney in order to have it reviewed. There is no evidence that [the defendant] engaged an attorney for that purpose. [The plaintiff] did take the proposed agreement to her own attorney to review. The proposed agreement reviewed by [the plaintiff's] attorney did not include any reference to ... [§] 46b–56c; nor did it include any document other than the proposed agreement.

"A document which was produced and distributed by the Litchfield Superior Court clerk's office concerning educational support orders pursuant to ... [§] 46b–56c was given to the parties for their signature by Attorney Talbot on June 4, 2013. The box requesting the court to enter an educational support order was checked. Attorney Talbot told the parties that, by signing the form, they were asking the court to enter an educational support order.

"[The plaintiff] did not remember being told anything about the statute in connection with the agreement about educational expenses. She does not recall [the] University of Connecticut being mentioned at all. She did not recall any discussion about the terms of the statute. ...

"In entering judgment after the dissolution hearing, the court, Ginocchio, J. , did not enter an educational support order pursuant to ... [§] 46b–56c. Rather, finding the agreement to be fair and equitable to both sides, the court incorporated the entire agreement of the parties into its judgment dissolving the parties' marriage." (Footnote added.)

The court continued: "It is further clear that neither party requested such an order, nor did the court at the time of dissolution make the predicate findings necessary to issue such an order. ...² Although the mediator had the parties sign the form provided by the Litchfield Superior Court clerk's office, the credible evidence demonstrates that the parties did not request it; nor did the court enter an order in accordance with or sign the form." (Footnote added.)

The court found that the language of paragraph 8 of the parties' agreement is clear and unambiguous, as it contains no limiting language and no language referencing § 46b–56c. To the contrary, the court found that the language of paragraph 8.2 clearly states that the CHET accounts will be used for the children's educational expenses and further anticipates that more funds might be required of the defendant. The court concluded that paragraph 8 clearly and unequivocally imposes on the defendant the sole obligation to pay for the educational expenses of the parties' children and did not grant him sole decision-making authority with respect to college selection or allow him to stop paying tuition based on lack of communication between him and his son.

In ruling on the plaintiff's motion for contempt, the court, "[b]ased on the somewhat adequate evidence [that the defendant] offered to explain his failure to honor the order of the court," declined to hold the defendant in contempt, but concluded that "there is no reason for any refusal or delay on the part of the defendant in honoring his contractual obligations. Accordingly, [the defendant] is ordered to pay whatever amounts he owes for his children's college expenses within ten days of notice of this decision."

Additional facts and procedural history will be set forth as necessary.

I

The defendant's first claim is that the court erred in not finding a latent ambiguity in the provision of the parties' agreement regarding college expenses when examining it in conjunction with the form signed by the parties, which would render the agreement unenforceable.³ The plaintiff argues that we should decline to review this claim because it is unpreserved. After a thorough and independent review of the record, we agree with the plaintiff.

In the present case, the defendant's claim of a latent ambiguity in the parties' agreement was not distinctly raised at trial. In the defendant's principal brief and reply brief, although he refers to the admission of extrinsic evidence that may have supported his newly raised theory, notably, his and Talbot's testimony and the form, he fails to identify where in the transcript of the contempt proceeding he requested that the court apply this particular principle of contract law and, more specifically, the manner in which he asked the court to determine that a latent ambiguity in the agreement existed.

Instead, the defendant based his objection to the plaintiff's motion for contempt arguments on two entirely different arguments. First, he argued that, at the time he entered into the parties' agreement, he understood that § 46b–56c governed his college expense obligation. He claimed that his understanding of the agreement was due to representations made to him by Talbot during the parties' mediation and to the submission of the signed form at the time of the judgment of dissolution, which Talbot indicated would limit his college expense obligations to those that may be imposed under § 46b–56c. He further argued that the form was incorporated into the judgment by agreement.⁴

Second, and primarily, the defendant argued that as a matter of law, § 46b–56c governed his college expense obligation because he did not specifically waive its provisions.

That these were the defendant's only claims raised before the trial court is indisputable upon review of the following excerpts from the transcript of the contempt hearing. The court, in addressing the plaintiff's counsel, stated:

"The Court: [The defendant's] position is he's—the only reason he—he signed that because he thought he was limited, the tuition was limited to whatever the tuition at [the University of Connecticut] was.

"And—and his position further is, I believe, that any agreement made in this state about the college education is subject to [ § 46b–56c ], unless it is explicitly waived. And therefore, since it was not explicitly waived, then he doesn't have to pay...