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Simpson v. Simpson
JANEL SIMPSON v. ROBERT R. SIMPSON
(SC 20988)
D’Auria, Ecker, Alexander, Dannehy and Seeley, Js.
Syllabus
The plaintiff appealed, on the granting of certification, from the judgment
of the Appellate Court, which had reversed in part the trial court’s rulings
on certain of the parties’ postdissolution judgment motions, including the
plaintiff’s motion for modification of child support and alimony based on
an allegedly substantial change in the defendant’s income. Those rulings
led to the issuance of remedial orders concerning the defendant’s obligation
to pay additional child support and alimony under the parties’ separation
agreement, which had been incorporated into the dissolution judgment. On
appeal to this court, the plaintiff claimed that the Appellate Court had
incorrectly concluded that the relevant provisions of the parties’ separation
agreement unambiguously relieved the defendant of the obligation to pay
additional child support and alimony on the amount of his gross income,
including his base draw, bonuses, and profit sharing, in excess of
$700,000. Held:
Contrary to the Appellate Court’s conclusion, the provisions of the separation
agreement relating to the defendant’s obligation to pay additional child
support and alimony based on bonuses and profit sharing beyond the defendant’s base salary were ambiguous, and, accordingly, the Appellate Court’s
judgment was reversed in part and the case was remanded for consideration
of extrinsic evidence with respect to the parties’ intent concerning those
provisions of the separation agreement.
Because both parties set forth a plausible construction of the relevant provisions of the separation agreement, with both constructions having bases in
the language used in the agreement, this court concluded that the agreement
was ambiguous, with its meaning presenting a question of fact for the trial
court to consider and resolve.
Accordingly, the case was remanded to the trial court to resolve the ambiguity in the relevant provisions of the separation agreement through a determination of the parties’ intent after consideration of all available extrinsic
evidence and the circumstances surrounding the formation of the agreement.
There was no merit to the defendant’s claim that the plaintiff’s evidentiary
and legal strategy at trial operated to judicially estop a remand for a factual
determination of the parties’ intent, as the doctrine of judicial estoppel did
not apply insofar as there was no bad faith on the part of the plaintiff, the
plaintiff’s position on appeal was not clearly inconsistent with the position
she had taken before the trial court, the trial court did not rely on the
plaintiff’s position that the relevant provisions of the separation agreement
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Simpson v. Simpson
were unambiguous, there was no unfair advantage to the plaintiff, and the
defendant did not and will not suffer any prejudice.
Argued February 5—officially released June 10, 2025
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial district of Hartford, where the defendant filed a cross
complaint; thereafter, the court, Albis, J., rendered judgment dissolving the marriage and granting certain other
relief in accordance with the parties’ separation agreement; subsequently, the court, M. Murphy, J., denied
the plaintiff’s postjudgment motions for contempt and
for modification of child support and alimony, denied
the defendant’s postjudgment motion for modification
of child support, and issued certain orders in connection with the plaintiff’s motions for order regarding
college education costs and attorney’s fees, and the
defendant appealed and the plaintiff cross appealed to
the Appellate Court, Prescott and Clark, Js., with Alvord, J., concurring in part and dissenting in part, which
reversed in part the judgment of the trial court and
remanded the case for further proceedings, and the
plaintiff, on the granting of certification, appealed to
this court. Reversed in part; further proceedings.
Michael S. Taylor, with whom were Brendon P. Levesque and, on the brief, Corinne A. Burlingham, for
the appellant (plaintiff).
Campbell D. Barrett, with whom were Stacie L.
Provencher and, on the brief, Dana M. Hrelic, for the
appellee (defendant).
Opinion
ALEXANDER, J. This certified appeal requires us to
construe provisions in a separation agreement governing obligations to pay additional child support and alimony on the basis of the payor spouse’s income
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Simpson v. Simpson
attributable to bonuses and profit sharing. Upon our
grant of her petition for certification,1 the plaintiff, Janel
Simpson, appeals from the judgment of the Appellate
Court reversing in part the decision of the trial court,
which had issued certain remedial orders in connection
with the obligation of the defendant, Robert R. Simpson,
to pay additional child support and alimony under the
separation agreement that was incorporated into the
judgment dissolving the parties’ marriage. Simpson v.
Simpson, 222 Conn. App. 466, 470, 498,
306 A.3d 477
(2023). On appeal, the plaintiff claims that the Appellate
Court incorrectly concluded that the separation agreement unambiguously relieved the defendant from the
obligation to pay additional child support and alimony
after his gross income, including his base draw,
bonuses, and profit sharing, exceeded $700,000. We conclude that the relevant provisions of the separation
agreement are ambiguous on this point and that a
remand to the trial court is required for consideration
of extrinsic evidence as to the parties’ intent. Accordingly, we reverse in part the judgment of the Appellate Court.
The record reveals the following relevant facts and
procedural history. The parties were married in May,
We granted the plaintiff’s petition for certification to appeal, limited to
1
the following issues: (1) ‘‘Did the Appellate Court err in reversing the trial
court’s remedial orders on the basis of its erroneous conclusion that the
parties’ separation agreement clearly and unambiguously relieved the defendant of the obligation to pay supplemental child support and alimony?’’ And
(2) ‘‘[d]id the Appellate Court err in concluding that the parties’ separation
agreement clearly and unambiguously relieved the defendant of the obligation to pay supplemental child support and alimony when, inter alia, (a) both
parties advanced reasonable and plausible interpretations of the relevant
provisions, (b) the Appellate Court majority failed to give effect to the
intent of the parties as expressed in the agreement, (c) the concurring and
dissenting judge correctly concluded that the agreement was ambiguous
and thus its meaning presented a question of fact for the trial court, and
(d) both the majority and the concurring and dissenting judge noted the
absence of extrinsic evidence on the issue of the parties’ intent, as well as
the need for such evidence in order to interpret the agreement?’’ Simpson
v. Simpson, 348 Conn. 942, 942–43,
307 A.3d 909 (2024).
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Simpson v. Simpson
1995. They had two children together, A, who was born
in 2000, and G, who was born in 2004. The plaintiff
brought an action for dissolution of the marriage in
December, 2011, and the trial court, Albis, J., rendered
judgment dissolving the parties’ marriage on October
28, 2013, on the ground that the marriage had broken
down irretrievably. The judgment of dissolution incorporated by reference the parties’ separation agreement
dated October 24, 2013, and the addendum to the separation agreement dated October 28, 2013 (agreement).
The agreement governs the parties’ rights and responsibilities with respect to custody and parenting of A and
G, alimony, child support, postmajority educational
support, and the division of various marital assets and
debts. The parties are professionals with advanced
degrees, both of whom were represented by counsel
in the dissolution proceedings and the negotiation of
the agreement.
Article IV of the agreement governs child support.
With respect to base income, § 4.1 of the agreement
requires the defendant to pay the plaintiff child support
of $420 per week on his base draw, which, at the time
of the judgment, was $298,686 per year.2 Section 4.2 of
the agreement,3 which is the primary provision at issue
2
Section 4.1 of the agreement provides: ‘‘The [plaintiff] is presently earning
$135,000 per year. The [defendant’s] present [base] draw from his employment is $298,686 per year. The [defendant] shall pay to the [plaintiff] as
child support effective with the date of [j]udgment the sum of $420 per
week. If either party’s base income changes ($298,686 presently for the
[defendant] and $135,000 for the [plaintiff]) such that there is a 15 [percent]
or more differential in the amount of child support that should be paid in
accordance with the [c]hild [s]upport [g]uidelines, then the parties will
recalculate the new amount of [c]hild [s]upport and modify the present
amount.’’
3
Section 4.2 of the agreement provides: ‘‘From the [defendant’s] anticipated bonus or profit sharing from his employment received on or after
January 1, 2016, which he usually receives in January of each year, once
the back taxes for 2012 and 2013 are paid in full as described in this [a]greement below, the [defendant] will pay to the [plaintiff] 9 percent of his gross
bonus/profit sharing so long as the [defendant] is obligated to pay child
support for two children; and, the sum of the 6 percent of his gross bonus/
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Simpson v. Simpson
in this appeal relating to child support, governs the
defendant’s obligations to pay additional child support
arising from his employer’s bonus or profit sharing. It
requires the defendant to pay to the plaintiff 9 percent
of his gross bonus or profit sharing for two children,
and 6 percent for one child; it defines bonus and profit
sharing as the ‘‘total gross payment the [defendant]
receives, less any portion that is part of his normal
monthly draw and less any portion that is part of his
normal quarterly tax payment draw he receives.’’ It also
provides that ‘‘[t]here will be no child support paid
on the [defendant’s] gross earned income in excess of
$700,000 per calendar year.’’ (Emphasis added.)
Article VI of the agreement governs alimony, which
the defendant was obligated to pay to the plaintiff until
September 30, 2022, unless either party dies or the plaintiff remarries. Under § 6.3 of the agreement, upon the
sale of the family home, the defendant is required to
pay the plaintiff alimony in the sum of $1750 per month.
Sections 6.44 and 6.5 of the agreement require the defendant to pay to the plaintiff additional alimony in the
amount of 20 percent of his gross bonus or profit sharing
amount, effective with his January, 2016 bonus or profit
profit sharing when there is only one minor child for whom the [defendant]
is obligated to pay child support. There will be no child support paid on
the [defendant’s] gross earned income in excess of $700,000 per calendar
year. For the purposes of this paragraph, the bonus/profit sharing shall
be considered as the total gross payment the [defendant] receives, less any
portion that is part of his normal monthly draw and less any portion that
is part of his normal quarterly tax payment draw he receives.’’ (Emphasis added.)
4
Section 6.4 of the agreement provides: ‘‘Effective with his January 2016
bonus/profit sharing plan payment, the [defendant] shall pay to the [plaintiff]
20 percent of the [defendant’s] gross bonus/profit sharing amount as additional alimony; however, there will be no alimony paid on the [defendant’s]
gross earned income in excess of $700,000 per calendar year. For the
purposes of this paragraph, the bonus/profit sharing shall be considered
as the total gross payment the [defendant] receives, less any portion that
is part of his normal monthly draw and less any portion that is part of
his normal quarterly tax payment draw he receives.’’ (Emphasis added.)
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Simpson v. Simpson
sharing payment for a nonmodifiable term ending on
December 31, 2024;5 § 6.4 is worded identically to § 4.2
in all relevant respects. Unless the plaintiff remarried,
the additional alimony amount was payable from January, 2016, through December 31, 2024. Section 6.6 of
the agreement requires the defendant to provide to the
plaintiff ‘‘each year within seven days of his receipt of
any bonus/profit sharing written evidence of said bonus/
profit sharing as well as a check for [the plaintiff’s]
share, if any.’’ Finally, § 6.8 of the agreement memorializes the ‘‘intention’’ of the parties, after the sale of the
family home, ‘‘that they each have 50 [percent] of the
net after tax income, using the [plaintiff’s] salary and
the [defendant’s] base draw [of $298,686] or regular
paychecks, currently approximately $433,000 per annum
in the aggregate.’’ Section 6.8 also provides for renegotiation of the alimony provisions ‘‘in such a manner as
to duplicate the alimony considerations and intentions
contained in [the] [a]greement’’ in the event that the
defendant’s ‘‘compensation package materially changes,
either because his base income and/or bonus/profit
sharing structures [change] within his present employment or at a future employment . . . .’’6
5
Section 6.5 of the agreement further provides that, if the plaintiff were
to remarry prior to January, 2018, she would be entitled to the additional
alimony amounts for 2016, 2017, and 2018, with the defendant’s obligation
to pay terminated thereafter.
6
Section 6.8 of the agreement provides: ‘‘If the [defendant’s] compensation
package materially changes, either because his base income and/or bonus/
profit sharing structures [change] within his present employment or at a
future employment, the parties shall renegotiate the alimony and tax payment provisions in such a manner as to duplicate the alimony considerations
and intentions contained in this [a]greement. In determining the amounts
of child support and alimony to be paid and received for so long as the
[plaintiff] remains unmarried, it is the parties intention that until the family
home is sold, the [plaintiff] shall have 55 [percent] and the [defendant] shall
have 45 [percent] of the net after tax income using only the [plaintiff’s]
salary and the [defendant’s] base draw or regular paychecks. Once the family
home is sold, [it is] the [parties’] intention that they each have 50 [percent]
of the net after tax income, using the [plaintiff’s] salary and the [defendant’s]
base draw or regular paychecks, currently approximately $433,000 per
annum in the aggregate.’’
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Simpson v. Simpson
In July, 2018, the plaintiff filed a postjudgment motion
for contempt, claiming that the defendant had failed to
comply with his child support and alimony obligations
under the agreement.7 The plaintiff alleged that the
defendant had wilfully breached his obligations under
the agreement to pay the required percentages of his
‘‘gross bonus/profit sharing income over his base salary
capped at a total of $700,000,’’ as ‘‘additional’’ child
support and alimony, resulting in arrearages. The plaintiff subsequently amended her motion for contempt to
challenge the defendant’s alleged failure to provide her
with pay stub copies as required by § 6.6 of the agreement, causing her to sustain additional losses because
she was unaware of increases to his base compensation,
and his alleged failure to pay his 50 percent share of
the costs for the children’s activities, as required by
§ 4.3 of the agreement. The defendant objected to the
motion for contempt.
The plaintiff filed two additional motions. First, the
plaintiff moved for orders enforcing article V of the
agreement, which reserved jurisdiction for the trial
court to render educational support orders for college
expenses of A and G in accordance with General Statutes § 46b-56c. Second, the plaintiff moved for modification of child support and alimony on the ground that
there had been a substantial change in the defendant’s
compensation since the date of the dissolution judgment. The defendant objected to the motion for modification and filed his own motion for modification in
October, 2018, seeking a decrease in child support given
that A would reach the age of majority later that month.
After a five day evidentiary hearing commencing in
March, 2020,8 the trial court, M. Murphy, J., issued a
7
Prior to filing the motion for contempt at issue in this appeal, in June,
2017, the plaintiff filed a motion to compel payment of alimony, child support,
and child related expenses. Following extensive discovery, the plaintiff
withdrew the motion to compel on July 3, 2018.
8
The first day of the hearing was held in person, and the four subsequent
days of the hearing were conducted remotely via Microsoft Teams given
the emergence of the COVID-19 pandemic.
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Simpson v. Simpson
comprehensive memorandum of decision in which it
resolved the parties’ various motions. With respect to
the contempt motion alleging the defendant’s failure to
pay additional child support and alimony based on his
profit sharing and bonuses, the trial court noted the
parties’ conflicting interpretations of the applicable provisions of the agreement, namely, §§ 4.2, 6.4 and 6.8.
The trial court concluded that these provisions were
‘‘not clear and unambiguous’’ and that, as a result, it
could not find the defendant in contempt. Although
the trial court stated that it would consider extrinsic
evidence to resolve that ambiguity with respect to ‘‘the
conditions for the payments of additional child support
and alimony,’’ it did not include any such evidence in
its memorandum of decision.9 Instead, the trial court
agreed with the plaintiff’s interpretation of the agreement to require a ‘‘formula to calculate the maximum
additional child support and alimony on the bonus’’ of
$700,000, which is the stated income cap, less $298,686,
which is the stated ‘‘artificial’’ base draw, to yield a
maximum bonus amount of $401,314 for purposes of
applying the stated child support and alimony percentages. The trial court then applied that formula to the
defendant’s bonuses from 2015 through 2018,10 and
issued a variety of financial orders directing the defendant to pay a total of $327,691 in arrearages to the
9
To the extent the trial court considered the testimony of the parties on
this point, it did so only to reject the defendant’s testimony that § 6.8 of the
agreement, which requires renegotiation in the event of material changes
to his compensation, is limited to changes to the structure of base draw,
tax payment draw, and bonus. The trial court also rejected the defendant’s
testimony that § 6.8 does not encompass ‘‘significant’’ increases or decreases
in the compensation amount alone.
10
The plaintiff’s gross bonuses, all of which were paid in January of the
following year, were $360,346 for 2015, $457,771 for 2016, $731,149 for 2017,
and $626,836 for 2018. The trial court determined that the defendant had
not provided ‘‘credible evidence of what part, if any, of [those] bonus payments were allocated to his monthly base draw or the January portion of
the quarterly tax payments,’’ rendering the complete amounts ‘‘eligible’’ for
the calculation of additional child support and alimony payments.
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Simpson v. Simpson
plaintiff plus child support and alimony going forward
under the agreement as construed. The trial court
ordered the defendant to pay down the arrearage at
a rate of $10,000 per month and directed that those
payments take precedence over all other voluntary
charitable and retirement contributions, with the potential for wage withholding in the event that arrearage
payments are more than thirty days late.11
The trial court issued several other orders in connection with the remaining motions that constituted a
‘‘mosaic’’ of the defendant’s obligations. Specifically,
the trial court (1) denied the parties’ cross motions for
modification of child support and alimony,12 (2) found
that the defendant had failed to pay certain agreed
on expenses for A and G, as required by § 4.3 of the
agreement, and ordered him to pay $1796.44 for his
unpaid share of those expenses, (3) ordered the parties
to share costs for A’s college education, with the defendant responsible for 90 percent and the plaintiff responsible for 10 percent of those costs, and (4) ordered the
defendant to pay 80 percent of the plaintiff’s attorney’s
fees and costs, or $57,625.13
The defendant appealed from the trial court’s decision, and the plaintiff cross appealed. See Simpson v.
Simpson, supra, 222 Conn. App. 469–70. Following an
Appellate Court order granting review of the trial court’s
initial denial of the plaintiff’s motion for articulation,
the trial court issued an articulation, clarifying that
11
The trial court denied the plaintiff’s motion for contempt with respect
to the defendant’s failure to provide documentation pursuant to § 6.7 of the
agreement. It used, however, its remedial powers to clarify and ‘‘expand’’
the defendant’s obligations to provide detailed pay summaries from his
employer as to the amount of, and any deductions from, his annual bonus.
12
The trial court subsequently denied the plaintiff’s motion for reargument
of the denial of her motion for modification.
13
The plaintiff subsequently moved for clarification and to correct certain
scrivener’s and calculation errors in the memorandum of decision not relevant to this appeal. The trial court granted this motion in part.
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Simpson v. Simpson
there was a total arrearage of $332,692 and the methods
by which the additional child support and alimony payments would be calculated under §§ 4.2 and 6.4 of the
agreement. With respect to the additional child support
and alimony amounts, the trial court clarified that they
would be ‘‘based on the lesser of $700,000 or the actual
bonus amount for a taxable year . . . reduced by’’ the
determined base draw amount of $298,686, and then
multiplied by the applicable percentage under the agreement, namely, 9 or 6 percent for child support and 20
percent for alimony.
In a divided opinion, the Appellate Court subsequently agreed with the defendant’s claim on appeal14
that, ‘‘in crafting remedial orders in response to the
plaintiff’s motion for contempt, the [trial] court improperly interpreted the . . . agreement’’ with respect to
additional child support or alimony by applying ‘‘the
$700,000 cap to his bonus only,’’ rather than to all
‘‘ ‘gross earned income’ in excess of $700,000 per calendar year . . . .’’ Simpson v. Simpson, supra, 222 Conn.
App. 482. The Appellate Court concluded that the defendant’s reading of the agreement was consistent with
the clear and unambiguous language of §§ 4.2 and 6.4
of the agreement, which referred to ‘‘the defendant’s
‘gross earned income in excess of $700,000 per calendar
year.’ ’’ (Emphasis in original.) Id. 484. The Appellate
Court determined that the trial court’s contrary reading
had led to a rewriting of the agreement to provide what
the trial court determined to be a more equitable outcome by ‘‘accepting the plaintiff’s contention that the
14
The defendant also claimed that the trial court improperly (1) ‘‘modified
its original decision on the postjudgment motions by way of a postappeal
articulation,’’ (2) ‘‘awarded attorney’s fees to the plaintiff,’’ and (3) ‘‘rendered
an educational support order that failed to comply with . . . § 46b-56c.’’
Simpson v. Simpson, supra, 222 Conn. App. 469. In her cross appeal, the
plaintiff agreed with the defendant as to the articulation; see id., 480–82;
and claimed that the trial court ‘‘improperly denied her motion seeking a
modification of alimony and child support.’’ Id., 469.
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Simpson v. Simpson
$700,000 cap applied only to the defendant’s bonus
. . . .’’ Id., 485; see id., 486 (concluding that plaintiff’s
remedy was renegotiation of child support and alimony
pursuant to §§ 4.1 and 6.8 of agreement ‘‘in the event
that the defendant’s compensation package materially
changes’’). Thus, the Appellate Court concluded that ‘‘the
agreement set a fixed amount of alimony and child
support tied to a defined base pay amount, [and] once
the defendant’s base pay reached $700,000, any additional support payments would be in excess of the
$700,000 cap.’’ Id., 487; see id. (‘‘in any year in which
[the defendant’s] base income—normal monthly draw
and quarterly tax payments—exceeded $700,000, his
gross earned income reached the agreed [on] cap, and
he would not have accrued any obligation for additional
child support or alimony’’). The Appellate Court reversed
the trial court’s judgment with respect to ‘‘its calculation
of the arrearage owed by the defendant to the plaintiff’’
and remanded the case for further proceedings that
‘‘involve application of the clear and unambiguous language of the agreement to calculate any additional alimony or child support obligation.’’ Id., 487–88. Given
its effect on the ‘‘mosaic,’’ the Appellate Court concluded that the error as to the additional child support
and alimony required it to vacate all of the trial court’s
other financial orders, as well.15 See id., 488, 497–98.
Judge Alvord dissented in part from the majority opinion of the Appellate Court, disagreeing with its conclusion that the agreement ‘‘is clear and unambiguous
regarding the terms of the obligation of the defendant
. . . to pay child support and alimony.’’ Id., 498 (Alvord,
J., concurring in part and dissenting in part). Given her
15
The Appellate Court also reversed the trial court’s educational support
order and remanded for a new hearing as to the college costs with respect
to A’s enrollment at Clemson University, concluding that the trial court’s
finding that the parties had agreed to exceed the ‘‘UConn cap’’ under § 46b-
56c was clearly erroneous. Simpson v. Simpson, supra, 222 Conn. App. 495.
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conclusion that the plaintiff had set forth a reasonable
construction of the agreement that ‘‘would give effect
to the defendant’s $700,000 earned income cap agreed
to by the parties in their agreement at the time of their
divorce’’; id. 502 (Alvord, J., concurring in part and
dissenting in part); Judge Alvord ‘‘would remand [the]
case to the trial court to hold a new hearing on the
plaintiff’s motion for contempt and to determine the
intent of the parties after consideration of all the available extrinsic evidence and the circumstances surrounding the entering of the agreement.’’ (Internal quotation
marks omitted.) Id., 503–504 (Alvord, J., concurring in
part and dissenting in part).
On appeal to this court, the plaintiff relies heavily on
Judge Alvord’s opinion and claims that the Appellate
Court majority’s reading of the agreement is unduly
restrictive and nullifies the intent of the parties, which
was for the ‘‘additional alimony and child support payments [to] reflect [the defendant’s] income.’’ She argues
that the Appellate Court incorrectly read a single sentence in §§ 4.2 and 6.4 of the agreement, namely, ‘‘[t]here
will be no child support [or alimony] paid on the [defendant’s] gross income in excess of $700,000 per calendar
year,’’ as ‘‘free[ing] [the defendant] of any obligation to
pay additional child support and alimony if his actual
earned income exceeds $700,000,’’ rather than treating
that amount as a ‘‘cap’’ under which ‘‘the defendant is
only required to share his yearly bonuses up to $700,000
less his 2013 base pay, and anything he makes beyond
$700,000 will not be subject to [§§] 4.2 and 6.4.’’ (Internal
quotation marks omitted.) Contending that these provisions should be read consistently with the intention, as
set forth in § 6.8, of a 50 percent share of the parties’
combined net income, the plaintiff argues further that
the percentage based child support and alimony should
be calculated using the difference between $700,000
and the defendant’s 2013 base pay of $298,686, and then
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Simpson v. Simpson
added to the base monthly amounts to determine his
total child support and alimony obligation under the
agreement. The plaintiff asks this court to remand the
case to ‘‘the trial court to hold a new hearing on [her]
motion for contempt, [at which] the court will interpret
the parties’ intent after consideration of all the extrinsic
evidence and circumstances surrounding the entering
of the agreement.’’
In response, the defendant contends that the Appellate Court correctly concluded that the agreement is
clear and unambiguous with respect to his obligations
to pay additional child support and alimony. He argues
that the only way to interpret the sentence at issue in
§§ 4.2 and 6.4 of the agreement, is that he ‘‘does not
pay supplemental child support or alimony on ‘gross
earned income’ in excess of $700,000 per calendar year.’’
He further argues that ‘‘[i]t necessarily follows, pursuant to the plain language of the agreement establishing
this cap, that, if [the defendant’s] base pay (i.e., his
monthly draw plus his quarterly tax payments) exceeds
$700,000 annually, then he would not owe supplemental
child support under § 4.2 or alimony under § 6.4—even
if he receives bonus/profit sharing proceeds that same
year,’’ and, ‘‘[b]y contrast, if [his] base pay is less than
$700,000, and he receives profit sharing distributions
on top of his base pay, then the plaintiff is entitled to
the [agreed on] portion of the profit sharing, up to a
total gross earned income of $700,000.’’ Relying on the
Appellate Court’s decisions in Halperin v. Halperin,
196 Conn. App. 603,
230 A.3d 757 (2020), Wells v. Wells,
196 Conn. App. 309,
229 A.3d 1194 (2020), and Grogan
v. Penza, 194 Conn. App. 72,
220 A.3d 147 (2019), the
defendant argues that the plaintiff’s interpretation of
§§ 4.2 and 6.4 incorrectly rewrites those provisions to
‘‘turn the $700,000 limitation on [his] annual gross
income into a $700,000 limitation on [his] bonus.’’ (Internal quotation marks omitted.) The defendant contends
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that §§ 4.1 and 6.8 of the agreement provide the plaintiff’s exclusive remedy for obtaining an increase in her
child support and alimony, respectively, on the basis
of any material increase in his earnings. Finally, the
defendant argues that we should apply the doctrine of
judicial estoppel to preclude the plaintiff’s argument
that the language of the agreement was ambiguous,
insofar as she had argued before the trial court that it
was clear and unambiguous in her favor, rendering it
‘‘inequitable’’ for her to change her position ‘‘only after
she was told she was wrong by the Appellate Court
. . . .’’
‘‘It is well established that a separation agreement
that has been incorporated into a dissolution decree
and its resulting judgment must be regarded as a contract and construed in accordance with the general
principles governing contracts. . . . When construing
a contract, we seek to determine the intent of the parties
from the language used interpreted in the light of the
situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the
parties is to be ascertained by a fair and reasonable
construction of the written words and . . . 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. . . .
When only one interpretation of a contract is possible,
the court need not look outside the four corners of the
contract. . . . Extrinsic evidence is always admissible,
however, to explain an ambiguity appearing in the
instrument. . . . When the language of a contract is
ambiguous, the determination of the parties’ intent is
a question of fact. . . . When the language is clear and
unambiguous, however, the contract must be given
effect according to its terms, and the determination of
the parties’ intent is a question of law. . . .
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‘‘A contract is unambiguous when its language is clear
and conveys a definite and precise intent. . . . The
court will not torture words to impart ambiguity where
ordinary meaning leaves no room for ambiguity. . . .
Moreover, the mere fact that the parties advance different interpretations of the language in question does not
necessitate a conclusion that the language is ambiguous. . . .
‘‘In contrast, a contract is ambiguous if the intent of
the parties is not clear and certain from the language
of the contract itself. . . . [A]ny ambiguity in a contract
must emanate from the language used by the parties.
. . . The 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. . . . If the language of the contract is susceptible to more than one reasonable interpretation, the
contract is ambiguous.’’ (Internal quotation marks omitted.) Nation-Bailey v. Bailey, 316 Conn. 182, 191–92,
112 A.3d 144 (2015). The threshold question of whether
contractual language is itself ambiguous is a question
of law over which our review is plenary. See, e.g., Remillard v. Remillard, 297 Conn. 345, 355,
999 A.2d 713
(2010); McTiernan v. McTiernan, 164 Conn. App. 805,
824,
138 A.3d 935 (2016).
We begin with the relevant language of the agreement. In addition to the child support of $420 per week
on the defendant’s base draw income pursuant to § 4.1
of the agreement; see footnote 2 of this opinion; § 4.2
of the agreement governs the defendant’s obligation to
pay additional child support arising from his bonus or
profit sharing. Section 4.2 provides: ‘‘From the [defendant’s] anticipated bonus or profit sharing from his
employment received on or after January 1, 2016, which
he usually receives in January of each year, once the
back taxes for 2012 and 2013 are paid in full as described
in this [a]greement below, the [defendant] will pay to
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the [plaintiff] 9 percent of his gross bonus/profit sharing
so long as the [defendant] is obligated to pay child
support for two children; and, the sum of the 6 percent
of his gross bonus/profit sharing when there is only one
minor child for whom the [defendant] is obligated to
pay child support. There will be no child support paid
on the [defendant’s] gross earned income in excess of
$700,000 per calendar year. For the purposes of this
paragraph, the bonus/profit sharing shall be considered as the total gross payment the [defendant] receives,
less any portion that is part of his normal monthly
draw and less any portion that is part of his normal
quarterly tax payment draw he receives.’’ (Emphasis
added.)
With respect to alimony, in addition to the $1750
monthly payment under § 6.3 of the agreement, § 6.4
of the agreement governs the defendant’s obligation to
pay additional alimony arising from his bonus or profit
sharing. It provides: ‘‘Effective with his January 2016
bonus/profit sharing plan payment, the [defendant]
shall pay to the [plaintiff] 20 percent of the [defendant’s]
gross bonus/profit sharing amount as additional alimony; however, there will be no alimony paid on the
[defendant’s] gross earned income in excess of $700,000
per calendar year. For the purposes of this paragraph,
the bonus/profit sharing shall be considered as the
total gross payment the [defendant] receives, less any
portion that is part of his normal monthly draw and
less any portion that is part of his normal quarterly
tax payment draw he receives.’’ (Emphasis added.)
Ultimately, the failure of the agreement to specify
the mathematical order of operations to apply to the
defendant’s gross earned income complicates the task
of interpreting its meaning. Standing alone, and given
the apparent meaning of the term ‘‘gross earned income,’’16
16
The plain meaning of the term ‘‘gross earned income’’ unambiguously
encompasses both the monthly draw and the bonus/profit sharing, with the
order of operations lurking as an apparent latent ambiguity. See Merriam-
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the defendant’s reading of the sentence, ‘‘there will be
no alimony [or child support] paid on the [defendant’s]
gross earned income in excess of $700,000 per calendar
year,’’ as eliminating his alimony and child support obligations should his bonus plus base draw income exceed
$700,000, is reasonable. We do not, however, stop with
this one sentence. This reading, which the Appellate
Court adopted, runs afoul of the axiom that we do
not read contractual provisions in isolation. See, e.g.,
Nation-Bailey v. Bailey, supra, 316 Conn. 194–95.
Rather, we must give effect to all provisions of the
agreement and eschew any reading that effectively nullifies or renders meaningless any one provision at the
expense of another. Id., 195; see also Parisi v. Parisi,
315 Conn. 370, 384,
107 A.3d 930 (2015); Fazio v. Fazio,
162 Conn. App. 236, 248,
131 A.3d 1162, cert. denied,
320 Conn. 922,
132 A.3d 1095 (2016).
Reading the agreement as a whole, we agree with
Judge Alvord that the plaintiff’s reading of these provisions is also reasonable, rendering the agreement
ambiguous. See Simpson v. Simpson, supra, 222 Conn.
App. 498, 501 (Alvord, J., concurring in part and dissenting in part). The plaintiff’s reading accounts for the
Webster Online Dictionary, available at https://www.merriam-webster.com/
dictionary (last visited May 27, 2025) (defining ‘‘gross’’ to mean ‘‘consisting
of an overall total exclusive of deductions,’’ ‘‘earned’’ in relevant part as ‘‘to
receive as return for effort and especially for work done or services rendered,’’ and ‘‘income’’ in relevant part as ‘‘a gain or recurrent benefit usually
measured in money that derives from capital or labor’’); see also Black’s
Law Dictionary (6th Ed. 1990) p. 703 (defining ‘‘gross income’’ under § 61
(a) of Internal Revenue Code in relevant part as ‘‘all income from whatever
source derived, including (but not limited to) the following items: (1) [c]ompensation for services, including fees, commissions and similar items . . .
[and] (13) [d]istributive share of partnership gross income’’). See generally
Nation-Bailey v. Bailey, supra, 316 Conn. 193 (‘‘[this court] often consult[s]
dictionaries in interpreting contracts, including separation agreements, to
determine whether the ordinary meanings of the words used therein are
plain and unambiguous, or conversely, have varying definitions in common
parlance’’ (internal quotation marks omitted)).
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payment of child support and alimony on the base draw,
and, after subtracting the designated base draw amount
of $298,686 from $700,000 so as not to have the defendant pay child support and alimony twice on the same
income, the provisions require payment of additional
child support and alimony as a percentage on the
remainder, which is a portion of the bonus, thus
allowing the plaintiff to share in the defendant’s higher
earnings while simultaneously capping his overall obligation to pay additional child support and alimony at
a negotiated amount of $700,000. As discussed during
oral argument before this court, this would be consistent with the nature of the compensation the defendant
receives as a law firm partner, with lower base draw
amounts providing a regular paycheck that is supplemented by variable—and potentially much larger—
bonus amounts reflecting the financial performance of
the firm. With respect to alimony in particular, treating
the additional alimony amount under § 6.4 of the agreement as separate from that payable under § 6.3 also
effectuates those provisions of the agreement that render the additional alimony payable for a different term
than the base alimony. Conversely, construing the
agreement to have the plaintiff receive no additional
support as the defendant’s compensation increases is
inconsistent with the purpose of §§ 4.2 and 6.4 of the
agreement, which was to provide her with additional
child support and alimony from the defendant’s bonus
or profit sharing.
Contrary to the defendant’s contention, § 6.8 of the
agreement does not resolve this ambiguity; if anything,
it supports the plaintiff’s interpretation. Its reference
to the parties’ $433,000 aggregate annual income at the
time of the execution of the agreement, based on the
plaintiff’s salary and the defendant’s ‘‘base draw or regular paychecks,’’ may reasonably be read as supporting
the trial court’s decision to use the defendant’s $298,686
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base draw as a baseline number to offset against the
$700,000 cap in all cases regardless of the bonus
amount—thus giving effect to all of the provisions in
the agreement. Instead, an increase in the $700,000 cap,
which would result in higher support payments should
the defendant’s bonuses continue to rise beyond those
initially contemplated by the agreement, would require
renegotiation under § 6.8.17
Because both parties have set forth a plausible construction of the agreement’s additional child support
and alimony provisions, with both constructions having
bases in the language used in the agreement, we conclude that the agreement is ambiguous, ‘‘with its meaning presenting a question of fact that the trial court
should have fully considered and resolved.’’ Parisi v.
Parisi, supra, 315 Conn. 385. ‘‘It is elementary that
neither this court nor the Appellate Court can find facts
in the first instance. . . . [A]n appellate court cannot
find facts or draw conclusions from primary facts
found, but may only review such findings to see whether
they might be legally, logically and reasonably found
. . . .’’ (Emphasis in original; internal quotation marks
omitted.) Id. Accordingly, this case must be remanded
17
We disagree with the defendant’s reliance on Wells v. Wells, supra, 196
Conn. App. 309, and Grogan v. Penza, supra,
194 Conn. App. 72. Neither of
these cases concerned a separation agreement addressing the payment of
alimony with language nearly as ambiguous as that in the present case. See
Wells v. Wells, supra, 315–16 (separation agreement had definition of ‘‘annual
income’’ that unambiguously included both bonus and remainder of defendant husband’s gross income for purposes of tiered support calculation);
Grogan v. Penza, supra, 81–83 (separation agreement clearly defined defendant husband’s income from his law firm for purpose of calculating ‘‘true
up’’ alimony solely by reference to line 1 of his schedule K-1 tax form,
despite fact that his tax forms after he changed employment reported his
income on different lines, rendering them not available as income at that
point); cf. Halperin v. Halperin, supra, 196 Conn. App. 618–19 (relying on
defendant wife’s testimony to clarify meaning of phrase ‘‘ ‘historically been
listed’ ’’ in conjunction with line 22 of Internal Revenue Service Form 1040
with respect to categories of income available for purposes of calculating
plaintiff husband’s support obligation under separation agreement).
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to the trial court to resolve the ambiguity in the parties’
agreement through a determination of their intent after
consideration of all available extrinsic evidence and the
circumstances surrounding the entering of the agreement. See id., 386; see also Marshall v. Marshall, 151
Conn. App. 638, 648,
97 A.3d 1 (2014) (remanding case
to trial court for fact-finding to determine intent of
parties and, accordingly, extent of arrearage, when
court incorrectly deemed alimony provision in separation agreement to be unambiguous); cf. Isham v. Isham,
292 Conn. 170, 185,
972 A.2d 228 (2009) (trial court
improperly excluded testimony from parties ‘‘with
respect to their intent at the time of the formation of
the agreement,’’ given this court’s conclusion that separation agreement was ambiguous as to meaning of term
‘‘salary’’). This choice by the parties—both of whom
argued that the agreement was clear and unambiguous
in their favor—left the trial court to decide this case
on the face of the agreement alone, despite that court’s
determination that it was ambiguous. This choice does
not, however, preclude remand for factual findings in
the first instance, when both parties will have the opportunity to introduce such extrinsic evidence to support
their interpretation of the agreement.18 See Parisi v.
Parisi, supra, 385–86 (remanding case for consideration of all available extrinsic evidence as to intent after
concluding that separation agreement was ambiguous,
even though both parties claimed that it was plain and
unambiguous); McTiernan v. McTiernan, 164 Conn.
App. 805, 823 n.21, 831,
138 A.3d 935 (2016) (ordering
18
Neither party is necessarily obligated to introduce such extrinsic evidence, and the parties’ failure to do so affects only the extent to which they
carry their burden of proof. See Labieniec v. Megna, 228 Conn. App. 127,
146 n.3, 324 A.3d 181 (2024); Murchison v. Waterbury,
218 Conn. App. 396,
415 n.19, 291 A.3d 1073 (2023). Indeed, in the absence of extrinsic evidence,
a trial court must determine the meaning of the ambiguous provision from
the text of the agreement itself. See, e.g., Bijur v. Bijur, 79 Conn. App. 752,
762–63, 831 A.2d 824 (2003).
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remand for factual findings as to intent and noting that
parties did not offer evidence of intent in crafting separation agreement provision at issue, which trial court
found to be unambiguous, during evidentiary hearing
on motion for contempt).
In this regard, we disagree with the defendant’s argument that the plaintiff’s evidentiary and legal strategy
at trial operates to judicially estop a remand for a factual
determination of the parties’ intent. ‘‘[J]udicial estoppel
prevents a party in a legal proceeding from taking a
position contrary to a position the party has taken in
an earlier proceeding. . . . [J]udicial estoppel serves
interests different from those served by equitable estoppel, which is designed to ensure fairness in the relationship between parties. . . . The courts invoke judicial
estoppel as a means to preserve the sanctity of the oath
or to protect judicial integrity by avoiding the risk of
inconsistent results in two proceedings. . . .
‘‘Typically, judicial estoppel will apply if: 1) a party’s
later position is clearly inconsistent with its earlier position; 2) the party’s former position has been adopted
in some way by the court in the earlier proceeding; and
3) the party asserting the two positions would derive
an unfair advantage against the party seeking estoppel.
. . . We further limit judicial estoppel to situations [in
which] the risk of inconsistent results with its impact
on judicial integrity is certain. . . . Thus, courts generally will not apply the doctrine if the first statement or
omission was the result of a good faith mistake . . .
or an unintentional error.’’ (Citations omitted; internal
quotation marks omitted.) Dougan v. Dougan, 301
Conn. 361, 372–73,
21 A.3d 791 (2011); see also Assn.
Resources, Inc. v. Wall, 298 Conn. 145, 169–70,
2 A.3d
873 (2010). The doctrine of judicial estoppel has been
described as ‘‘protect[ing] the integrity of the judicial
process . . . by prohibiting parties from deliberately
changing positions according to the exigencies of the
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moment . . . .’’ (Citations omitted; internal quotation
marks omitted.) New Hampshire v. Maine, 532 U.S.
742, 749–50,
121 S. Ct. 1808,
149 L. Ed. 2d 968 (2001).
Whether to invoke the doctrine is a matter of equity
reserved to the court’s discretion. Id., 750.
The defendant’s attempt to invoke the doctrine of
judicial estoppel to preclude a remand in this case
founders on all three elements of that doctrine, particularly given the absence of any evidence of bad faith on
the part of the plaintiff. See Assn. Resources, Inc. v.
Wall, supra, 298 Conn. 171–72. First, arguing that an
agreement is clear and unambiguous is not a position
that is ‘‘clearly inconsistent’’ with arguing that it is
ambiguous, when the overall meaning urged by the
arguing party remains the same. Dougan v. Dougan,
supra,
301 Conn. 372; cf. Barton v. Norwalk,
326 Conn.
139, 159,
161 A.3d 1264 (2017) (doctrine of judicial
estoppel did not preclude claim in inverse condemnation action that plaintiff would have used his land as
parking lot, even though he sought its valuation as
mixed-use development in earlier eminent domain
action); Dougan v. Dougan, supra, 374 (doctrine of
judicial estoppel applied to plaintiff husband’s claim
that separation agreement was impermissible ‘‘penalty
[that] was unenforceable as against public policy’’ when
brought ‘‘[a]pproximately one year after [his] representing to the trial court that he was aware of, understood
and agreed to the stipulated agreement in its entirety,
and that the agreement was fair and equitable,’’ given
that he was sophisticated party who was represented
by counsel during negotiations). Second, the trial court
did not rely on the plaintiff’s position that the agreement
was unambiguous; indeed, it concluded the opposite,
holding as a matter of law that the agreement was
ambiguous. See New Hampshire v. Maine, supra,
532
U.S. 750; Bongiorno v. J & G Realty, LLC,
162 Conn.
App. 430, 440–41,
131 A.3d 1230, cert. denied, 320 Conn.
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924, 133 A.3d 878 (2016). Finally, there is no unfair
advantage to the plaintiff, and the defendant was not
and will not be prejudiced by any inconsistency; see
New Hampshire v. Maine, supra, 751; as he could have
sought to introduce any extrinsic evidence that would
have supported his interpretation of the agreement during the lengthy hearing on these motions and will have
the opportunity to do so on remand.
The judgment of the Appellate Court is reversed insofar as that court determined that the relevant provisions
of the parties’ separation agreement pertaining to child
support and alimony were clear and unambiguous, and
the case is remanded to that court with direction to
reverse the trial court’s ruling on the plaintiff’s motion
for contempt as it related to the trial court’s remedial
orders, to reverse the trial court’s ruling on the plaintiff’s motion for modification of child support and alimony, and to remand the case to the trial court for
further proceedings in accordance with this opinion;
the judgment of the Appellate Court is affirmed as to its
decision concerning the trial court’s award of attorney’s
fees and the trial court’s ruling on the plaintiff’s motion
for an order regarding college expenses, as to its
remand order relating to these matters, and with respect
to the Appellate Court’s affirmance of the trial court’s
rulings in all other respects.
In this opinion the other justices concurred.
