Hirschfeld v. Machinist

181 Conn.App. 309

186 A.3d 771

Caroline HIRSCHFELD

v.Robert B. MACHINIST

AC 39772

Appellate Court of Connecticut.

Argued on January 29, 2018

Officially released April 24, 2018

Kenneth A. Votre, New Haven, for the appellant (plaintiff).

Kenneth J. Bartschi, Hartford, with whom were Dana M. Hrelic, Hartford, and, on the brief, Melissa Needle, for the appellee (defendant).

Keller, Bright and Norcott, Js.

BRIGHT, J.

The plaintiff, Caroline Hirschfeld, appeals from the judgment of the trial court rendered on three postjudgment motions filed by the plaintiff in this dissolution action. On appeal, the plaintiff claims that the court erred by: (1) failing to find the defendant, Robert B. Machinist, in contempt for not complying with the property division terms of the separation agreement; (2) failing to find the defendant in contempt for underpaying alimony in the same year that their marriage had been dissolved; (3) determining that the parties' separation agreement was ambiguous and improperly considering extrinsic evidence in violation of the parol evidence rule; and (4) failing to award the plaintiff attorney's fees on her motions. We disagree and affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal.¹ On February 2, 2007, the parties' twenty-nine year marriage was dissolved pursuant to a detailed separation agreement negotiated by the parties with the assistance of counsel. Two provisions of that agreement are at the heart of this appeal. First, paragraph 3.1 of the separation agreement addresses the defendant's obligation to pay alimony and child support to the plaintiff. It provides: "During the joint lives of the parties the [defendant] shall pay unallocated alimony and child support to the [plaintiff] according to the following schedule: a. 40 [percent] of the [defendant's] first $400,000 of earned income in each calendar year; provided, however, if alimony is still being paid by the [defendant] as of January 1, 2014 this percentage shall be reduced to 32.5 [percent]. b. 30 [percent] of the [defendant's] earned income from $400,001 to $900,000 in each calendar year. c. 20 [percent] of the [defendant's] earned income from $900,001 per year to $1,500,000 in each calendar year. d. 0 [percent of] the [defendant's] earned income that exceeds $1,500,001 in each calendar year. e. The percentages recited in this Paragraph 3.1 are non-modifiable by the parties or the court, except as provided in Paragraph 3.2 (d).² f. Minimum alimony under [paragraph] 3.1 (a) shall be $160,000 per year." (Emphasis in original; footnote added.) Although paragraph 3.1 is typewritten, subparagraph (f) was handwritten into the separation agreement and initialed by both parties.

The second provision of the separation agreement at issue is paragraph 6.15, which provides: "The [defendant] and the [plaintiff] shall divide in kind the passive investments or limited partnerships shown in Section [III (G) ] of the [defendant's] December 5, 2006 financial affidavit [ (financial affidavit) ]. Each of the parties shall receive 50 [percent] of such investments and limited partnerships. Each of the parties shall be required to pay out of their separate assets any capital calls or clawbacks required as a consequence of such party's ownership of such passive investments or limited partnerships."

Section III (G) of the defendant's financial affidavit lists eleven items under the heading "Passive Investments/Limited Partnerships Titled in Robert Machinist's Name." Five of those items are limited partnerships of which the defendant listed an ownership interest of less than 1 percent.

On September 18, 2008, the plaintiff filed a motion for order, seeking an order that the defendant divide the assets identified in § III (G) of the defendant's financial affidavit. The trial court, Shay, J. , denied this motion on August 24, 2009, without completing the hearing that began on August 4, 2009. On appeal, this court reversed the judgment rendered on that motion and remanded the case for a full evidentiary hearing. Hirschfeld v. Machinist , 131 Conn. App. 352, 359–61, 29 A.3d 159 (2011).

On remand, the trial court, Colin, J. , conducted an evidentiary hearing on the plaintiff's motion. In her motion, the plaintiff alleged that "the [defendant] has failed and refused to divide said ... passive investments and limited partnerships." She sought an order requiring such a division, holding the defendant "financially responsible for any economic loss incurred by the [p]laintiff due to [the defendant's] failure" to divide the assets, awarding her attorney's fees, and fining the defendant $1000. Following the evidentiary hearing, the court found that the plaintiff had failed to prove that the defendant had "refused" to divide the assets. The court found, instead, that the defendant had failed to divide the assets because it was not possible for him to do so pursuant to the various partnership agreements. In particular, the court found that "[i]t is undisputed that the assets that are the subject of this motion, and that are listed on the defendant's financial affidavit at § [III (G) ], could not be divided in kind as required under the language of the separation agreement." The court further noted that the parties, with the assistance of their counsel, had "essentially agreed that [because] title to the assets could not be transferred to the plaintiff, the defendant would instead pay to the plaintiff [one half] of what he received from the assets. It took years for this to be accomplished due to the continued, never-ending saga of these parties [postdissolution], involving many disputes arising under the terms of [the separation] agreement. The defendant did not wrongfully withhold funds from the plaintiff."

The court found that, from the date of the dissolution through December 31, 2013, the defendant principally had complied with the parties' modified agreement regarding the division of assets but had underpaid the plaintiff by $9602.62. The court granted the plaintiff's motion in part and ordered the defendant to pay the plaintiff $9602.62 but declined to award her any interest or attorney's fees. The court explained that it "cannot order the defendant to do something that is a clear legal impossibility.... The parties have essentially worked out another way to accomplish what they intended. There is no legal or factual basis to grant much of the relief the plaintiff seeks other than to order the defendant to pay to the plaintiff the remaining amount due in order to effectuate the judgment."

At the same hearing, Judge Colin also heard testimony and argument related to the motion for contempt filed by the plaintiff on September 17, 2010, which alleged that the defendant had failed to pay fully his alimony obligation for 2007. Previously, on May 31, 2011, Judge Shay granted the plaintiff's motion and awarded her $36,959 in unpaid alimony and attorney's fees in the amount of $17,731.97. Nevertheless, the plaintiff appealed from the judgment because she believed that she was owed significantly more in alimony but could not determine the full amount of the underpayment because the court restricted her access to certain documents related to the defendant's earned income. Hirschfeld v. Machinist , 137 Conn. App. 690, 691–92, 50 A.3d 324, cert. denied, 307 Conn. 939, 56 A.3d 950 (2012).

This court agreed, reversed the judgment of the trial court, and remanded the case for further proceedings. Id., at 696, 50 A.3d 324.

On remand, Judge Colin conducted a full evidentiary hearing after the plaintiff was provided access to the documents she sought. On the basis of the evidence, the court found that the defendant had underpaid alimony to the plaintiff in 2007 in the amount of $80,335.50. The underpayment was the result of the defendant reducing his 2007 income by the $150,025 loss indicated on his 2007 Schedule K–1 that was associated with his approximately 12.15 percent interest in a limited liability company. Although the court found that there was no reasonable or factual basis for the defendant to make such a deduction, it held that "the evidence does not clearly and convincingly establish that the defendant's failure to pay all of what he owed rose to the level of a wilful and intentional violation of the court's orders. Quite frankly, after hearing the parties testify at length regarding a number of aspects of their separation agreement, the court is left with the distinct impression that neither party completely understands the language of the [court's current] orders. [Although] the court has rejected the defendant's claim that a loss should be applied against his earnings in 2007, the argument was not frivolous and was made in good faith." Consequently, the court granted in part the plaintiff's motion, and ordered the defendant to pay the plaintiff $80,335.50, plus simple interest at the rate of 2 percent per year from October 15, 2008. The court concluded that no finding of contempt was warranted and denied the plaintiff's request for attorney's fees.

Finally, the court considered a motion for order filed by the plaintiff on May 29, 2014, in which she claimed that the defendant, relying on the language of paragraph 3.1 (a) of the separation agreement, unilaterally reduced his alimony payment from 40 percent to 32.5 percent of the first $400,000 of his earned income. Thus, in February, 2014, the defendant paid the plaintiff $10,833.33 instead of $13,333.33 that he had paid each month since the judgment of dissolution. The plaintiff claimed that the defendant misapplied the language of paragraph 3.1 (a) in light of the mandatory minimum alimony obligation in paragraph 3.1 (f). The plaintiff requested that the court order the defendant to pay the arrearage owed to her. She also requested an award of attorney's fees. Finally, she requested that, if the court determined that the defendant's failure to pay was wilful, the defendant ...