Dejana v. Dejana

• Decision Date: 05 September 2017
• Docket Number: (AC 38884).
• Citation: Dejana v. Dejana, 176 Conn. App. 104, 168 A.3d 595 (Conn. App. 2017)
• Court: Connecticut Court of Appeals
• Parties: Wendy J. DEJANA v. Michael DEJANA

176 Conn.App. 104

168 A.3d 595

Wendy J. DEJANA

v.Michael DEJANA

(AC 38884).

Appellate Court of Connecticut.

Argued April 18, 2017

Officially released September 5, 2017

James H. Lee, for the appellant (plaintiff).

Dori–Ellen S. Feltman, for the appellee (defendant).

Keller, Prescott and Beach, Js.

KELLER, J.

The plaintiff, Wendy J. Dejana, appeals from the judgment of the trial court denying her postjudgment motion for contempt against the defendant, Michael Dejana. On appeal, the plaintiff claims that the court, in declining to hold the defendant in contempt, improperly interpreted the parties' separation agreement, which had been incorporated into the judgment of dissolution. In support of this claim, the plaintiff argues that the court improperly determined that the separation agreement (1) required the defendant to pay unallocated alimony and child support based upon a percentage of his base salary and annual incentive cash bonus, and (2) permitted the defendant to use the entirety of the income he received from vested stock units, pursuant to his employer's long-term incentive program, to fund the private college education of the parties' son. We affirm the judgment of the court.¹

The following factual and procedural history is relevant to our resolution of the plaintiff's claims. On April 21, 2015, the plaintiff filed a postjudgment motion for contempt, claiming, inter alia, that the defendant had not paid her the full amount due for unallocated alimony and child support since 2010. On September 2, 2015, and December 16, 2015, a hearing on the motion was held before the court at which both parties testified and presented other evidence.

In its memorandum of decision, the court found the following facts and procedural history. "The marriage of the plaintiff and the defendant was dissolved on January 9, 2009. Among the orders entered by the court at the time of dissolution were unallocated alimony and child support orders set forth in article VIII of their separation agreement. [The plaintiff] has filed a motion for contempt, dated April 10, 2015, in which she alleges, inter alia, that the defendant mischaracterized his 2010–2013 compensation as base salary, resulting in [the] plaintiff receiving $84,821 less than she was entitled to receive....²

"Article VIII of the separation agreement sets forth the terms of the parties' agreement regarding unallocated alimony and child support.³ In addition to the alimony and support obligations set forth in paragraph 8.1 of [that article of] the separation agreement, the parties further agreed in article VII, [paragraph] 7.1, that the defendant would be obligated to pay all of the undergraduate college education expenses for the parties' minor son .... The agreement provided that the defendant shall have the option of fulfilling this obligation by scholarships and grants obtained by [the parties' son] and the use of [the defendant's Long–Term Incentive Award Program (LTIP), or as it is alternatively referenced, Performance Stock Deferred Plan, an award program established by his former employer, the Royal Bank of Canada (bank) ].⁴

"The parties do not dispute the following facts. [Their son] attended Trinity College from September, 2011, until he graduated in May, 2015, at a total cost of approximately $240,000. Pursuant to the parties' separation agreement, [the] defendant paid all of [the son's] college expenses. In compliance with the parties' separation agreement, [the] defendant utilized the funds in his [LTIP] to pay for ... college expenses at Trinity College. [The defendant] received $225,746 from the [LTIP] program, net of taxes. He paid Trinity College $235,021 using funds from the ... LTIP account in full, and supplementing his obligation to pay for [his son's] education from other funding sources. [The defendant] is no longer employed by [the bank] and is therefore no longer entitled to participate in, or receive benefits from, the [LTIP]. Following [their son's] graduation from Trinity College, [the] plaintiff filed the within motion for contempt, alleging that [the defendant] did not pay her the proper amount [of] unallocated alimony and child support, as required by the terms of the separation agreement. In simplest terms, [the] plaintiff's claim arises from the fact that [the] defendant did not pay [the] plaintiff support from that portion of his compensation which was comprised of mon[eys] declared as 'income' on his income tax return from [the LTIP].

"[The plaintiff] called Dr. Daniel Purushothan in support of her claim that the LTIP mon[eys] [the] defendant received should be included in the calculation of her alimony payment. [Purushothan] was qualified to testify on the issue of executive compensation as related to [the] defendant's compensation. He provided a clear explanation of executive compensation. In this case, as noted, [the] defendant received, in addition to a base salary, a portion of his compensation as income pursuant to the [LTIP] established by his [former] employer, [the bank].... Purushothan testified that, as an individual rises through the executive ranks, the proportion of [his] income attributed to regular salary diminishes, and the individual receives a higher proportion of income based on variable factors, such as bonuses or equity in the organization. In this case, [the] defendant's income is comprised of a base salary, annual incentive or cash bonus [ (annual incentive cash bonus) ] and the [LTIP].

"Notwithstanding the testimony of ... Purushothan, at the time of dissolution, the parties themselves had determined how the portion of the defendant's income which was derived from his participation [in the bank's LTIP] award program should be utilized. That agreement clearly gave the defendant the right to apply those funds to their son's college education.

"The court has carefully considered the evidence and testimony presented and has applied the facts to the terms of the parties' [separation] agreement. Based on the foregoing, the [court] concludes that the plaintiff is attempting to require the defendant to pay her a portion of the LTIP income as alimony when she has already agreed that these funds shall be applied to [their] son's education expenses. There is no limitation on the defendant's right to use the LTIP income for [the son's] college expenses. The parties could have provided that the portion of the ... LTIP income remaining, net of any percentage paid as alimony, could be applied to ... college expenses. They did not do so. The terms of the separation agreement are clear.

"The plaintiff has not sustained her burden of proving that the defendant has failed to pay her alimony as ordered by the court at the time of dissolution and that she has been ... underpaid. [The plaintiff's] argument would require a finding that she was entitled to receive a percentage of the defendant's income from the ... LTIP program and that, only thereafter, could the defendant apply the LTIP mon[eys] to pay for their son's college education. As agreed by the parties at the time of dissolution, the defendant had the option, i.e., it was his sole right to apply all or any portion of the funds in the LTIP account from that source to pay for the ... college education [of the parties' son] without any claim by the plaintiff to receive any portion of the LTIP funds for her benefit." (Footnotes added.)

The court denied the plaintiff's motion for contempt and counsel fees. This appeal followed. Additional facts will be set forth as necessary.

I

We first address the defendant's assertion that the claim that the plaintiff presents on appeal was not preserved in the trial court and, therefore, we should decline to review it. We are not persuaded by this argument.

The defendant claims that the plaintiff asserts for the first time on appeal that the defendant's arrearage "comes to about $100,000," based upon a new theory of the case: that the defendant paid her the correct percentage of his base salary and annual incentive cash bonus, but that, pursuant to article VIII, paragraph 8.1, of the separation agreement, he also should have paid her 30 percent of the income realized annually from the LTIP as additional unallocated alimony and child support.

"It is well established that an appellate court is under no obligation to consider a claim that is not distinctly raised at the trial level.... [B]ecause our review is limited to matters in the record, we [also] will not address issues not decided by the trial court." (Internal quotation marks omitted.) Remillard v. Remillard , 297 Conn. 345, 351, 999 A.2d 713 (2010). "The reason for the rule is obvious: to permit a party to raise a claim on appeal that has not been raised at trial—after it is too late for the trial court ... to address the claim—would encourage trial by ambuscade, which is unfair to both the trial court and the opposing party." (Internal quotation marks omitted.)

State v. Bellamy , 323 Conn. 400, 454–55, 147 A.3d 655 (2016).

The defendant correctly points out that this claim differs substantially from the allegation made in the plaintiff's motion for contempt, that the defendant owed her $84,821⁵ because he "mischaracterized his 2010 and 2011 income as base salary rather than bonus," and from an entirely different claim that was presented by the plaintiff during the contempt hearing, that the defendant owed her approximately $193,000 because he should have paid the plaintiff 40 percent of his total income, including his base salary, annual bonus, and the annual vested value of his stock units in the LTIP.

After thoroughly reviewing the record, we conclude, however, that the court interpreted certain representations made by the plaintiff as a third, alternative claim, now constituting the plaintiff's claim on appeal, which was rejected by the court. During the hearing, the court made several efforts to clarify the precise nature of the basis for the plaintiff's contempt motion. Midway through the second...