Bijur v. Bijur

• Decision Date: 07 October 2003
• Docket Number: (AC 22428)
• Court: Connecticut Court of Appeals
• Parties: ANNE M. BIJUR v. PETER I. BIJUR.

79 Conn. App. 752

831 A.2d 824

ANNE M. BIJUR v. PETER I. BIJUR.

(AC 22428)

Appellate Court of Connecticut.

Argued December 4, 2002.

Officially released October 7, 2003.

Foti, Schaller and Mihalakos, Js. Andrew P. Nemiroff, with whom, on the brief, was Eric R. Posmantier, for the appellant (defendant).

Samuel V. Schoonmaker III, with whom was Samuel V. Schoonmaker IV, for the appellee (plaintiff).

Opinion

SCHALLER, J.

The defendant, Peter I. Bijur, appeals from the judgment of the trial court issuing certain postjudgment orders sought by the plaintiff, Anne M. Bijur, in her postjudgment motion for contempt and order.¹ On appeal, the defendant claims that the court improperly ordered him to resume making alimony payments on the basis of a misinterpretation of the language in article IV² of the parties' separation agreement (agreement). In the alternative, the defendant claims that even if the court properly interpreted the language of article IV, a retirement plan distribution was made to him and, therefore, the court should have found that he had reached his "retirement date" and no longer was required to make alimony payments pursuant to article IV of the agreement. Finally, the defendant claims that a determination by this court that he was in fact retired under the agreement mandates a disgorgement of an alleged overpayment of alimony. We affirm in part and reverse in part the judgment of the trial court.

On February 23, 2000, the court dissolved the marriage of the parties and incorporated into the judgment the provisions of the parties' February 23, 2000 agreement. From the date of dissolution through February, 2001, the defendant paid periodic alimony to the plaintiff.

The defendant retired from his position at Texaco, Inc. (Texaco), on February 4, 2001. At that time, the defendant became eligible to receive retirement benefits and considered himself "retired," as that term is used within the parties' agreement.³ Consequently, the defendant ceased making periodic alimony payments after February 4, 2001.

On or about August 14, 2001, the defendant filed a motion for an order postjudgment seeking to have the plaintiff return to him an alleged periodic alimony overpayment. On or about September 13, 2001, the plaintiff filed a postjudgment motion for contempt and for orders,⁴ claiming that the defendant had failed to comply with the agreement by not providing alimony payments for the period of March through August, 2001.⁵ A hearing on the two motions was held on October 1, 2001, at which time both parties testified.

The court issued its memorandum of decision regarding the plaintiff's motion on October 5, 2001, in which it determined that the defendant had failed to satisfy the requirements for retirement eligibility pursuant to the agreement. The court ordered the defendant to resume payments of alimony, to pay the accumulated arrears of periodic alimony within thirty days and to pay the plaintiff for legal expenses and disbursements.

The defendant, on October 29, 2001, filed a motion for an articulation of the court's order, arguing that the court had not issued its decision on his motion for order postjudgment. On November 13, 2001, the court issued its memorandum of decision regarding the defendant's motion for articulation, in which the court denied the defendant's motion for order and adopted its reasoning from its October 5, 2001 memorandum of decision.⁶ The defendant appealed.

I

The defendant claims that the court improperly granted the plaintiff's postjudgment motion for order and improperly ordered him to resume making alimony payments on the basis of a misinterpretation of the language in article IV of the agreement.

The following additional facts are relevant to the defendant's claim. Article IV of the agreement concerns the defendant's obligation to pay periodic alimony to the plaintiff. Article IV, paragraph 4.1, provides that the defendant's obligation to pay alimony expires upon the defendant's death, the plaintiff's death or the defendant's "retirement date." The agreement defines the term "retirement date" within paragraph 4.1 c as "the date HUSBAND ceases to be an employee of Texaco and becomes eligible to receive benefits in the Texaco retirement plans, subject to the plan provisions as to benefit commencement dates."

In its memorandum of decision, the court found that the defendant had retired from Texaco on February 4, 2001. The court also found that on February 4, 2001, the defendant became eligible to receive benefits in the Texaco retirement plans.

Concluding that the defendant had failed to satisfy the definition of "retirement date" under the agreement, the court focused its attention on article IV, paragraphs 4.1 and 4.1 c. With respect to the phrase "subject to the plan provisions as to benefit commencement dates," which is contained in paragraph 4.1 c, the court interpreted the phrase to mean that the "retirement date" shall be set when the defendant "shall have disbursements made to him from the plans." The court determined that actual retirement disbursements had not yet been made. Consequently, the court concluded that the defendant had failed to satisfy the retirement date requirements, and, therefore, was not retired. Having concluded that the defendant was not retired within the meaning of the agreement, the court also concluded that the defendant wrongfully had withheld alimony payments. The court did not, however, find the defendant in contempt because his failure to pay was not a wilful violation of a court order.⁷

We must first set forth the appropriate standard of review.⁸ "An 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. . . . In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action." (Internal quotation marks omitted.) Prial v. Prial, 67 Conn. App. 7, 9-10, 787 A.2d 50 (2001).

In the present case, the agreement was incorporated by reference into the dissolution decree. "In a marriage dissolution action, an agreement of the parties executed at the time of the dissolution and incorporated into the judgment is a contract of the parties." (Internal quotation marks omitted.) Sullivan v. Sullivan, 66 Conn. App. 501, 504, 784 A.2d 1047 (2001). The defendant's claim, therefore, involves the interpretation of a contract.

"A contract is to be construed as a whole and all relevant provisions will be considered together. . . . In giving meaning to the terms of a contract, we have said that a contract must be construed to effectuate the intent of the contracting parties.... In ascertaining intent, we consider not only the language used in the contract but also the circumstances surrounding the making of the contract, the motives of the parties and the purposes which they sought to accomplish.. . . The intention of the parties to a contract is to be determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. The question is not what intention existed in the minds of the parties but what intention is expressed in the language used.. . . This is so where the parties have their agreement in writing.... In interpreting contract items, we have repeatedly stated that the intent of the parties is to be ascertained by a fair and reasonable construction of the written words and that the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract.... Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity and words do not become ambiguous simply because lawyers or laymen contend for different meanings." (Citations omitted; internal quotation marks omitted.) Barnard v. Barnard, 214 Conn. 99, 109-10, 570 A.2d 690 (1990).

"The interpretation of a contract term that is not so clear as to render its interpretation a matter of law is a question of fact, subject to the clearly erroneous standard of review.... We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported." (Citations omitted; internal quotation marks omitted.) Larson v. Jacobson, 38 Conn. App. 186, 189, 659 A.2d 753 (1995).

To identify and to apply the appropriate standard of review, we must, therefore, initially determine whether the agreement, specifically article IV, was unambiguous. A word is ambiguous when it is "capable of being interpreted by reasonably well-informed persons in either of two or more senses." (Internal quotation marks omitted.) Federal Aviation Administration v. Administrator, 196 Conn. 546, 554, 494 A.2d 564 (1985). Ambiguous also means "unclear or uncertain . . . . [or] that which is susceptible of more than one interpretation" or understood in more ways than one. (Citation omitted; internal quotation marks omitted.) Lopinto v. Haines, 185 Conn. 527, 538, 441 A.2d 151 (1981).

The subject provision is ambiguous because it is subject to two reasonable interpretations. The defendant argues that paragraph 4.1 c hinges on only two elements, retirement and eligibility, and that the "subject to" language merely indicates that eligibility is subject to internal Texaco retirement plan requirements. In support of his argument, the defendant identifies three additional agreement provisions that also...