Surgent v. Surgent

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Surgent v. Surgent

ROBERT SURGENT v. GERALDINE SURGENT
(AC 46632)
Elgo, Suarez and Westbrook, Js.

Syllabus

The plaintiff, whose marriage to the defendant had previously been dis-
solved, appealed from the trial court’s judgment granting his motion for
modification of unallocated child support and alimony payable to the defen-
dant. The plaintiff claimed, inter alia, that the court improperly considered
the defendant’s allegation that he had failed to share with her certain pro-
ceeds of a postdissolution sale of stock when it was undisputed that no
motion raising that issue had been filed with the court. Held:

The trial court abused its discretion in considering evidence regarding the
plaintiff’s allegedly contemptuous conduct in failing to split the proceeds
of a postdissolution stock sale with the defendant and the court’s award to
the defendant of a commensurate reduction in an arrearage she owed to
the plaintiff was harmful and violated the plaintiff’s due process rights, as
the court admitted testimony regarding that conduct for the limited purposes
of assessing credibility and establishing the plaintiff’s total financial picture,
and this issue had not been properly raised in a motion by the defendant
with due notice to the plaintiff.

The trial court did not improperly modify the terms of the alimony provision
in the parties’ separation agreement in construing the agreement to require
the plaintiff to issue the final alimony payment in 2028, beyond the term of
the alimony as agreed to by the parties based on the plaintiff’s 2027 income,
as such agreement anticipated that the final payment to the defendant would
be calculated on the basis of the plaintiff’s year-end bonuses for employment
in 2027, which would not be calculated and awarded until 2028.

Argued January 9—officially released September 2, 2025

Procedural History

Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk and tried to the court, Hon.
Stanley Novack, judge trial referee; judgment dissolving
the marriage and granting certain other relief in accor-
dance with the parties’ separation agreement; there-
after, the court, Moukawsher, J., granted the plaintiff’s
motion for modification of unallocated child support
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and alimony, and the plaintiff appealed to this court.
Reversed in part; judgment directed.
Leslie I. Jennings-Lax, for the appellant (plaintiff).
Opinion

ELGO, J. In this postdissolution matter, the plaintiff,
Robert Surgent, appeals from the judgment of the trial
court granting his motion for modification of unallo-
cated child support and alimony payable to the defen-
dant, Geraldine Surgent. The plaintiff contends that the
court, in modifying his alimony obligation, improperly
(1) considered the defendant’s claim that he had failed
to share with her the proceeds of a postdissolution sale
of stock when it is undisputed that no motion raising
that issue had been filed with the court, and (2) modified
a nonmodifiable term of the alimony award. We agree
with the plaintiff as to the first claim and, accordingly,
reverse the judgment of the trial court only with respect
to the order pertaining to the postdissolution sale of
the stock.
The following undisputed facts and procedural his-
tory are relevant to our resolution of this appeal. The
parties married in 1999, and two children were born of
the marriage. Following the subsequent breakdown of
their marriage, the parties voluntarily entered into a
comprehensive separation agreement (agreement). On
September 10, 2015, the court dissolved the marriage,
finding that it had broken down irretrievably, and incor-
porated the agreement into its judgment of dissolution.
The following provisions of the agreement are rele-
vant to the plaintiff’s appeal. Article III addressed the
plaintiff’s obligation to pay the defendant unallocated
alimony and child support. The plaintiff was obligated
to pay to the defendant, as of the first of each month
and for ‘‘an otherwise non-modifiable’’ term of twelve
years, a payment calculated in relation to his ‘‘gross
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annual earned income from employment.’’1 Section 3.1
of the agreement provided that these payments ‘‘shall
be made as and when [g]ross [e]arned [i]ncome from
[e]mployment is received’’ by the plaintiff. Section 3.2
of the agreement defined gross annual earned income
from employment to mean ‘‘all compensation paid and
transferred by the [plaintiff’s] employer to him on
account of personal services rendered by the [plaintiff]
and any and all earnings of any nature received by the
[plaintiff] in the form of cash or cash equivalents or
which the [plaintiff] is entitled to receive from any and
all sources rendered by the [plaintiff] by way of his
current or future employment, before deductions . . .
including but not limited to: (a) salary and/or base salary
. . . (d) bonus, guaranteed bonus and/or performance
awards . . . .’’ Potential deductions were laid out in
some detail, including ‘‘carried interest distributions
which shall include payments, transfers, and accruals
made on account of the [plaintiff’s] ownership or car-
ried interest in any entity including a general partner-
ship, limited partnership, limited liability company or
corporation; provided the [plaintiff’s] ownership or car-
ried interest is the result, in whole or in part, or is
in some way related to the [plaintiff] having rendered
personal services. [The plaintiff’s] carried interest shall
include all payments and distributions of any kind
which the [plaintiff] receives in whole or in part, or is
in some way related to the [plaintiff] having rendered
personal services, is entitled to, or otherwise accruing
to the [plaintiff] . . . .’’ Section 3.1 of the agreement
further states: ‘‘Payments to the [defendant] shall be
made as and when [g]ross [e]arned [i]ncome from
[e]mployment is received by the [plaintiff]. For the pur-
poses of calendar year 2015 the calculations of the
1
The agreement also contained a provision capping the amount of the
plaintiff’s income subject to any alimony order at the nonmodifiable amount
of $2.5 million.
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amounts due to the [defendant] shall be based on [g]ross
[e]arned [i]ncome from [e]mployment received by the
[plaintiff] between the date of dissolution and Decem-
ber 31, 2015, with a new annual calculation commencing
on January 1, 2016.’’ Because of the structure of the
plaintiff’s compensation, including the disbursement of
bonuses in the year(s) subsequent to the year(s) in
which he had earned them, the agreement provides
that the plaintiff would engage in a ‘‘true up’’ with the
defendant when those bonuses were disbursed to him.2
In particular, section 3.4 of the agreement states: ‘‘Within
thirty (30) days after December 31 of each calendar
year in which alimony and/or child support is payable to
the [defendant], the [plaintiff] shall provide the [defendant]
with all documents necessary to confirm his gross earned
income from employment from all sources, including
bonuses. Not later than March 15 of each year, com-
mencing March 15, 2016, the parties shall determine
whether the [plaintiff] has paid to the [defendant] the
correct amount of unallocated alimony and child sup-
port, as the case may be for the immediately preceding
calendar year.’’ This arrangement proceeded without
court involvement until 2019.
In 2019, the plaintiff filed a postjudgment motion
to modify his unallocated alimony and child support
obligations because the parties’ children had turned
eighteen and no longer were entitled to child support
under the terms of the agreement.3 The parties filed
proposed postjudgment orders pursuant to Practice
Book § 25-30. In her proposed postjudgment orders, the
defendant asked for, inter alia, one half of the ‘‘value
2
As will be explained in further detail subsequently in our opinion, the
parties ultimately disagreed as to how to interpret the agreement, though
this disagreement did not emerge until the closing arguments at the hearing
on the plaintiff’s motion to modify.
3
The plaintiff also sought modification of life insurance requirements as
well as a court order for the defendant to refinance the mortgage on the
former marital residence. Neither of those issues are germane to this appeal.
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of the Straight Path Communications, Inc. shares as of
the value on the date of the dissolution of the marriage’’
and the division of a ‘‘[p]reviously undisclosed Goldman
Sachs UK retirement plan . . . .’’ In a memorandum of
law submitted at the request of the court, the defendant
urged the court to take into consideration her allegation
that the plaintiff ‘‘has failed to comply fully with the
orders of the court with respect to equitable distribu-
tion. Specifically, the defendant has claimed that the
plaintiff failed to distribute to her the proceeds from
the sale of stock he owned at the time of judgment, but
failed to share with her according to the judgment. In
addition, the defendant was able to confirm that at the
time of judgment the plaintiff had a pension in the
United Kingdom that had not been properly disclosed
by the time of judgment, thereby depriving her of a
substantial equitable distribution benefit.’’ The defen-
dant asked the court to exercise its discretion in any
retroactive reward, ‘‘limiting the retroactivity order to
amounts that are consistent with the total circum-
stances of the parties, including their respective
incomes.’’
The court held a hearing on the plaintiff’s motion to
modify on April 17, 2023.4 The plaintiff and the defen-
dant testified, and their respective financial affidavits
were admitted into evidence. The plaintiff testified that,
at the time he entered into the agreement, he was
employed by Tudor Investments, but was employed by
Goldman Sachs when he filed the motion to modify in
November, 2019. The plaintiff further testified that,
when he left Goldman Sachs in December, 2019, he
forfeited various restricted stock components that had
been part of his income. The plaintiff then accepted a
position with the firm of Neuberger Berman in March,
4
As the court noted in its memorandum of decision, ‘‘a substantial portion
of the delay in deciding the motion to modify [was] the court’s fault’’ due
to the COVID-19 pandemic.
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2020, where his compensation had both a ‘‘salary com-
ponent’’ and a ‘‘performance component.’’ He testified
that the performance component ‘‘can be cash, or it
can be a contingent compensation plan, which is known
as deferred compensation that you do not receive unless
you remain for another three years with the firm.’’ The
plaintiff further clarified that any contingent compensa-
tion granted in January of a given year would be dis-
bursed in one-third increments, every January for three
subsequent years.
On cross-examination, the defendant’s counsel ques-
tioned the plaintiff on his predissolution employment
and whether the plaintiff had accrued a pension at Gold-
man Sachs that he did not disclose on his 2015 financial
affidavit. The plaintiff’s counsel objected on the grounds
that such questioning was irrelevant. The following col-
loquy then transpired:
‘‘[The Defendant’s Counsel]: Your Honor, I expect to
inquire of the witness to show the court that the witness
had taken steps to conceal income and assets, and that
goes to his credibility.
‘‘The Court: But that’s the only purpose you’re
attempting to use it? Because are you going to pursue
the proposed order you submitted that you want some
sort of division of this piece of property?
‘‘[The Defendant’s Counsel]: Yes, Your Honor, because
I think that’s relevant to—also to the claim for retroac-
tivity.
‘‘The Court: Well, it’s a different thing to say that,
you know, that there were certain things that he hasn’t
disclosed that you think damage his credibility. Then
there’s a second consideration where you might say
that I should take it into account when considering his
total financial picture. Then there’s a third thing where
you might say I would like you to give a postjudgment
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property order dividing this money between them. Are
you—which of these things, or all of them are you—
you seeking to use it for?
‘‘[The Defendant’s Counsel]: One and two, Your
Honor. . . .

‘‘The Court: I didn’t think you were going to (indis-
cernible) three, that’s what I wanted to clear up. In
effect, [the plaintiff’s counsel] will be able to argue that
that’s what you’re trying to do through the back door.
But, [Plaintiff’s Counsel], isn’t it true that I am able to
consider his total financial picture when considering
what to do about this unbundling and future alimony?
I can look at his total financial picture, including any
pension he has from Goldman Sachs, right?

‘‘[The Plaintiff’s Counsel]: I don’t have an objection to
that, Your Honor. Does the answer that [the defendant’s
counsel] just gave, does that mean he’s withdrawing
his claims in his proposed orders with respect to asking
the court to do something for which there’s no motion.

‘‘The Court: I am assuming that he is withdrawing
any proposal, which he did write into his proposed
orders, of a division of this pension asset because he
knows that . . . I don’t have the power to do that. So,
what he wants to do is have me consider it as a question
of [the plaintiff’s] credibility and, second of all, about
taking into account his total financial picture when
looking at what he has and doesn’t have for purposes
of a future alimony award. . . . [Y]ou don’t object to, at
least, the total financial picture part, do you, [Plaintiff’s
Counsel]?

‘‘[The Plaintiff’s Counsel]: I do not, Your Honor.’’

Shortly thereafter, the defendant’s counsel inquired
about the plaintiff’s ownership of stock in a company
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called Straight Path (stock), which the plaintiff pur-
chased in September, 2014, and sold after the dissolu-
tion of his marriage to the defendant. The plaintiff’s
counsel objected to this line of questioning on relevancy
grounds, and the court inquired as to whether the defen-
dant was pursuing this line of questioning for the same
reasons as the inquiry regarding the Goldman Sachs
pension, namely, for credibility purposes as well as for
the court to consider as a part of the plaintiff’s total
financial picture. The defendant’s counsel then repre-
sented that the plaintiff had sold the stock, postjudg-
ment, without dividing it with the defendant. The court
then noted that, ‘‘[w]ell, for the purposes of understand-
ing shifts in his financial picture postjudgment, it’s
appropriate for me to hear it. As to whether it goes to
his credibility . . . I’m not sure how his credibility,
frankly, has been put . . . into dispute here, yet. But, in
any case, it comes in for the limited purpose anyway.’’5
5
During subsequent questioning, the plaintiff denied that he had not
divided the asset with the defendant and testified that he had discussed the
sale of the stock with the defendant ‘‘in her office’’ and that they had ‘‘split
the loss’’ on the stock, which was sold at $10 per share. In her testimony,
the defendant denied receiving any portion of the proceeds of the sale of
the stock. The plaintiff’s counsel did concede that 1000 shares of this stock
had come out of the plaintiff’s Fidelity account in September, 2015, in the
amount of $42,000. During questioning of the plaintiff, the plaintiff’s counsel
indicated that the stock was sold for $42,000 in 2015, though the plaintiff
denied receiving cash for the sale of the stock and stated that he ‘‘did not
take 100 percent of the proceeds.’’ The plaintiff’s counsel also asked the
plaintiff to confirm that it was sold for $19,000. The plaintiff then testified
that he had purchased additional stock from the same company after the
dissolution of his marriage to the defendant. The plaintiff’s counsel then
noted to the court that there were several transfers of stock during the
relevant time period, one of which ‘‘we are presuming because we don’t
have all the documents because we didn’t think we were doing this’’ went
into the plaintiff’s account and was subsequently sold. The defendant’s
counsel then remarked, ‘‘I don’t know how we can—we have no possible
way of identifying which shares got transferred, and which shares were
sold. . . . [T]he judgment required the division of the stock . . . . The
[plaintiff] never did that. He just continued to trade it.’’ The plaintiff’s counsel
stipulated to the fact that the plaintiff owned 1000 shares prior to the
dissolution of his marriage, but stated that ‘‘there’s a difference of opinion
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The defendant testified that she had not received a
‘‘true up’’ in 2017, related to the 2016 alimony that she
had received from the plaintiff. When the defendant was
asked why she was claiming an arrearage for alimony
in 2016, the plaintiff’s counsel objected, noting that
there was no pending motion before the court ‘‘with
respect to a claim for an alimony arrearage for 2016 or
2017.’’ The court then responded that, ‘‘a motion for
contempt would be appropriate for that’’ but that, ‘‘if it’s
established that [the plaintiff] underpaid certain court
required payments, and I have to exercise a judgment
call about retroactivity and how much retroactivity,
why can’t I take that into account?’’ The plaintiff’s coun-
sel responded, arguing that ‘‘[w]e’re seeking retroactiv-
ity back to January 1 of 2020, not back to 2016, not
back to 2017. So, the orders that we’re seeking ha[ve]
nothing to do with that. This is also, Your Honor, a
backhanded way to try to get this court to find an
arrearage when no motion’s been filed, and, therefore,
there is no due process to my client whatsoever to deal
with these claims.’’6 Later in the hearing, the plaintiff’s
counsel again argued that the plaintiff’s due process
rights were being violated because the defendant should
have brought a ‘‘proper motion’’ and should not use the
plaintiff’s motion as ‘‘an attempt to add onto this
motion, it’s not fair to my client.’’
During closing arguments, the defendant’s counsel
broached the topic of how to interpret the agreement,
noting that section 3.2 provides that ‘‘gross annual
earned income from employment means—shall be all
as to what happened there.’’ In its memorandum of decision, the court found
that the plaintiff ‘‘did not properly share’’ the proceeds of the sale of the
stock with the defendant, which he ‘‘sold for around $40,000 despite a court
order’’ to share the proceeds with the defendant.
6
As the plaintiff’s counsel put it during closing argument, the plaintiff
was seeking ‘‘a modification of the percentages of what is in the court order
now as an unallocated alimony and support order. He wants it retroactive
to the date of service, and he wants a decrease in the life insurance.’’
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compensation paid and transferred by the husband’s
employer to him on account of personal services ren-
dered by the husband. Transferred to him is when did
he get it in his hands? It doesn’t say accrued, it’s trans-
ferred.’’ The court interjected, ‘‘[w]ell, wait a minute,
you’re just going too fast for me, because nobody has
talked about this before, and I want to know—I want
to have the language in front of me.’’
The defendant’s counsel then argued, repeatedly, that
the court should interpret the language of the agreement
to mean that the plaintiff should pay the defendant
alimony that is calculated for money received by the
plaintiff during a calendar year.7 Pointing to the year
2016, the defendant’s counsel argued that ‘‘the alimony
paid [in 2016] was only 30.8 percent of all of the money
that he received in that year, and there’s no suggestion
that she got any portion of [the] 2015 bonus.’’ When
asked by the court if the plaintiff had stopped paying
his alimony obligation under the agreement, the defen-
dant’s counsel referred again to 2016, stating that ‘‘the
claim is that he did not pay her all she was entitled to
in 2016.’’
7
In arguing that the plaintiff had incorrectly reported his income during
the annual true ups in 2016 and 2019, the defendant’s counsel argued: ‘‘How
better could you have . . . proof of his earned income than his W-2 income
on his tax return?’’ ‘‘[T]he intent of the parties clearly, it’s not ambiguous,
would be . . . you take the money that he actually received by getting a
transfer from the employer in a given year . . . .’’ ‘‘What other possible
instruction could you place on the phrase money earned and transferred
to him. Nothing is transferred to him until it shows up in his paycheck.’’
The defendant’s counsel further argued: ‘‘[L]et’s say that alimony ends on
December 31st, 2027. . . . And, on 2028, he gets a bonus check from his
employer, [the defendant] doesn’t share in that because it wasn’t transferred
to him in the year.’’ The defendant’s counsel also pointed to federal tax law,
noting that federal income tax is due on funds actually received during a
calendar year. As he stated: ‘‘For the [plaintiff’s] tax return has to show all
of the W-2 income actually received in a certain tax and calendar year. If
you—if [the defendant] were not entitled to alimony on the actual earned
cash transferred to him and received in a particular calendar year, this
would make no sense. It just—it just wouldn’t.’’
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The plaintiff’s counsel argued, inter alia, that the
agreement, section 3.2, provided for noncash compen-
sation to be calculated into the alimony payments owed
to the defendant, which would not be reflected in the
plaintiff’s W-2 as income. Accordingly, counsel argued
that merely looking at the plaintiff’s W-2 for a specific
year would not accurately reflect what he would be
responsible for paying, with respect to alimony, to the
defendant. The plaintiff’s counsel then argued that ‘‘the
years 2020 through 2023, with respect to all of this, was
not disputed. What is in dispute, apparently, according
to [the defendant’s counsel], are the years that predate
this motion for which there has been no motion filed.
I don’t believe that that is something that’s relevant
. . . in terms of dealing with the modification. If [the
defendant] truly believes that she hasn’t been paid the
money to which she was entitled, then let’s go back
and figure that out and, perhaps, she should put that
square before the court . . . in a motion.’’ In sum, the
plaintiff argued that his due process rights would be
violated if the court took up these claims of arrearage,
and that the defendant should bring a motion of her
own.
In its memorandum of decision, the court found that
there had been a substantial change in circumstances
since the dissolution of the marriage because the chil-
dren of the marriage were no longer eligible for child
support. The court noted that General Statutes § 46b-
82 provides a number of ‘‘flexible’’ factors that the court
should consider when hearing a motion to modify based
on a substantial change of circumstances.8 The court
8
General Statutes § 46b-82 (a) provides: ‘‘At the time of entering the
decree, the Superior Court may order either of the parties to pay alimony
to the other, in addition to or in lieu of an award pursuant to section 46b-
81. The order may direct that security be given therefor on such terms as
the court may deem desirable, including an order pursuant to subsection
(b) of this section or an order to either party to contract with a third party
for periodic payments or payments contingent on a life to the other party.
The court may order that a party obtain life insurance as such security
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further found that the plaintiff ‘‘makes what most peo-
ple would see as a lot of money in the investment field—
recently around $1.2 million a year.’’ With respect to
the defendant, the court found that, ‘‘for reasons unex-
plained, [she] earns virtually no money,’’ although she
did have a ‘‘$1 million investment portfolio.’’ As a result,
the defendant was ‘‘dependent on the depletion of her
assets and on alimony’’ from the plaintiff which has
been ‘‘roughly’’ around $400,000 to $450,000 per year.
Noting that ‘‘[n]either proposal gets near providing [the
defendant] with enough to pay her expenses,’’ the court
ordered that the plaintiff pay alimony, retroactive to
the approximate time of the filing of the motion to
modify, at a rate of one third of his first $500,000 of
income, followed by one quarter on any subsequent
$1,000,000 of income, and one tenth of everything the
plaintiff earns between $1,501,000 and $2,500,000.

The court also noted that the defendant had ‘‘not
convinced the court’’ that the plaintiff’s actions were
‘‘unreasonable’’ or otherwise ‘‘wilfully in defiance of
the court’s orders.’’ The court then explained that it
would not rely on the defendant’s interpretation of the
agreement because, in order to calculate what the plain-
tiff earned in a given year, ‘‘we must look at what they
paid him in exchange for his work that year even if he
gets that pay a few weeks into the new year.’’
unless such party proves, by a preponderance of the evidence, that such
insurance is not available to such party, such party is unable to pay the
cost of such insurance or such party is uninsurable. In determining whether
alimony shall be awarded, and the duration and amount of the award, the
court shall consider the evidence presented by each party and shall consider
the length of the marriage, the causes for the annulment, dissolution of the
marriage or legal separation, the age, health, station, occupation, amount
and sources of income, earning capacity, vocational skills, education,
employability, estate and needs of each of the parties and the award, if any,
which the court may make pursuant to section 46b-81, and, in the case of
a parent to whom the custody of minor children has been awarded, the
desirability and feasibility of such parent’s securing employment.’’
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The court also found that the plaintiff had not divided
the proceeds of the sale of the stock with the defendant
and ordered that any retroactive order would be
reduced by $20,000—or one half of the proceeds there-
from. With respect to the Goldman Sachs pension,
which the court noted the defendant claimed had been
concealed by the plaintiff at the time of the dissolution
agreement, the court found that it had no jurisdiction
‘‘to modify its property awards directly . . . or indi-
rectly by means of some adjustment of retroactivity.’’9
After the court issued its ruling, the defendant filed
a postjudgment motion for clarification. Noting that the
court had adopted the plaintiff’s proposed methodology
for the determination of alimony, the defendant
requested clarification as to whether ‘‘[w]hen alimony
terminates, if not sooner, at the end of 2027, [the defen-
dant was] entitled to the bonus received by the plaintiff
in the year 2028, for work that he performed’’ in 2027.
The plaintiff objected to the defendant’s motion for
clarification, arguing that the underlying motion that
was the subject of the April 17, 2023 hearing was to
‘‘modify the alimony based upon the child support com-
ponent no longer being applicable’’ and that, because
there was no effort on the part of the plaintiff ‘‘to alter
the language of the alimony as set forth in the agree-
ment,’’ the defendant’s request for clarification was
‘‘beyond the scope of the [plaintiff’s] motion.’’ By order
dated June 6, 2023, the court granted the defendant’s
motion for clarification, stating simply: ‘‘The court
agrees that she is so entitled.’’10
9
The court also ordered the parties to file with the court a calculation
of the sum due under the terms of the order and also granted the plaintiff’s
request to modify his life insurance plans.
10
In February, 2024, the plaintiff filed a request with the trial court to file
a late motion for articulation of the court’s June 6, 2023 order pursuant to
Practice Book § 66-5. In May, 2024, the administrative judge for the judicial
district of Stamford-Norwalk, Judge Blawie, denied the motion. In so doing,
Judge Blawie explained that the judge who had issued the June 6, 2023
order, Judge Moukawsher, had resigned in October, 2023. For that reason,
Judge Blawie concluded that it was ‘‘simply impossible for another judge
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Subsequently, the plaintiff filed a motion to reargue,
asserting that the court had improperly addressed the
issue of the stock transfer. The plaintiff emphasized that
‘‘there was no motion pending [that gave] the plaintiff
notice that the defendant intended to pursue any claim
that she had not received a portion of the property
division from some eight years prior to the hearing,’’
citing Swain v. Swain, 213 Conn. App. 411, 419, 277
A.3d 895 (2022), for the proposition that a trial court
is not permitted to decide issues outside of those raised
in the pleadings.11 The plaintiff further noted that, when
the property division issue was raised by the plaintiff
at the April 17, 2023 hearing, ‘‘the issue was specifically
noted as being raised for credibility purposes.’’ The
plaintiff thus asked the court to strike the language
addressing the issue of the stock transfer from the mem-
orandum of decision and vacate the portion of its order
that provided the defendant with a $20,000 credit for
the stock transfer. By order dated June 5, 2023, the
court denied that request, stating: ‘‘Functionally, the
court allowed the defendant to orally modify the
motions pending before the court to accommodate the
relief she sought in the proposed orders [she] submitted
at trial. The plaintiff did not deny that he failed to
comply with the court’s order on this subject nor did
he suggest that, if given more time, he could come up
with some sort of defense to the claim. The court does
not believe that the plaintiff was prejudiced by the court
to attempt to further articulate the reasoning behind [Judge Moukawsher’s]
orders . . . .’’ See Ocwen Loan Servicing, LLC v. Mordecai, 209 Conn. App.
483, 497 n.14, 268 A.3d 704 (2021) (‘‘[i]f a judge other than the one who
rendered a decision is permitted to attempt to divine from its review of the
record the factual and legal basis for a decision, the result, effectively, is a
wholly new decision’’).
11
In Swain, this court held that the ‘‘court is not permitted to decide
issues outside of those raised in the pleadings. . . . It is equally clear,
however, that the court must decide those issues raised in the pleadings.
. . . This rationale extends equally to motions.’’ (Internal quotation marks
omitted.) Swain v. Swain, supra, 213 Conn. App. 419.
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taking the issue up. Indeed, the opposite is true. He
and the defendant would both be prejudiced by requir-
ing new motion practice, further years of delay, and
thousands of dollars in attorney’s fees to litigate the
issue. A court sitting in equity can do better than that.’’
This appeal followed.12
I
The plaintiff first claims that the court improperly
considered the defendant’s claim that he failed to share
with the defendant certain proceeds of a postdissolu-
tion sale of stock. Specifically, the plaintiff contends
that the court’s order reducing the retroactive payments
owed to the plaintiff by the defendant—in the amount
of $20,000—should be vacated as the plaintiff did not
raise such a claim in any motion before the court.
Because he had no notice that this issue was going to
be addressed at the hearing on his motion to modify,
the plaintiff submits that his due process rights were
violated by the court’s consideration of that issue. The
plaintiff also argues that the court admitted the testi-
mony regarding the sale of the stock for the limited
purpose of assessing credibility and giving the court
information as to the plaintiff’s total financial picture,
and that the court’s order exceeded those limitations.
We agree.
First, we note the general principles that guide our
analysis of this claim. ‘‘It is axiomatic that the appellant
bears the burden of providing this court with a record
adequate to review his claim of error. . . . [I]n the face
of an ambiguous or incomplete record, we will presume,
in the absence of an articulation, a trial court acted
12
The defendant appeared, but has not participated, in this appeal. Because
she did not file an appellate brief, we ordered that the appeal shall be
considered on the basis of the plaintiff’s brief, oral argument, and the record.
See, e.g., Ammar I. v. Evelyn W., 227 Conn. App. 827, 830 n.2, 323 A.3d
1111 (2024).
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correctly, meaning that it undertook a proper analysis
of the law and made whatever findings of the facts were
necessary.’’ (Citations omitted; emphasis in original;
internal quotation marks omitted.) Zaniewski v. Zani-
ewski, 190 Conn. App. 386, 396, 210 A.3d 620 (2019).
As discussed previously in this opinion, the plaintiff did
file a motion for articulation. We note that, in denying
the request to file a late motion for articulation, the
court did not take up the timeliness of the request.
Moreover, because Judge Moukawsher had resigned,
the court concluded that it was impossible for any other
judge to articulate the reasoning behind Judge Mou-
kawsher’s orders and denied the plaintiff’s motion. The
plaintiff then filed a motion for review with this court.
We granted review but denied the relief requested.
The plaintiff contends that he has done all that can
reasonably be expected to provide us with an adequate
record on this issue, and we agree. We have made an
exception to the general rule presuming the correctness
of a trial court’s decision for those circumstances in
which ‘‘a party has done all that can reasonably be
expected to obtain an articulation but has been
thwarted through no fault of [his] own.’’ Id., 397; see
also id. (declining to apply presumption of correctness
to trial court decision that was devoid of any factual
findings in support of its conclusions).
With respect to the scope of the court’s decision, we
note that, ‘‘[i]n general, a court’s decision is restricted
to those issues raised by the parties in their pleadings
and in argument.’’ Swain v. Swain, supra, 213 Conn.
App. 418. ‘‘Our rules of practice require that every
motion directed toward pleading or procedure, unless
relating to procedure during the course of a trial, be in
writing. . . . The purpose of requiring written motions
is not only the orderly administration of justice . . .
but the fundamental requirement of due process of
law.’’ (Citations omitted.) Connolly v. Connolly, 191
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Conn. 468, 475, 464 A.2d 837 (1983). Further, ‘‘in the
context of motions to modify support orders, we have
held that a court’s reliance on a ground not raised in
a motion to modify is an abuse of discretion in the
absence of an amendment to the motion.’’ Petrov v.
Gueorguieva, 167 Conn. App. 505, 514, 146 A.3d 26
(2016).
Additionally, although we acknowledge the court’s
broad equitable power in acting on postdissolution
motions for modification; see Zaniewski v. Zaniewski,
supra, 190 Conn. App. 397; our appellate courts ‘‘repeat-
edly have emphasized that [e]vidence [that] is offered
and admitted for a limited purpose only . . . cannot
be used for another and totally different purpose.’’
(Internal quotation marks omitted.) State v. Robles, 348
Conn. 1, 21, 301 A.3d 498 (2023). Therefore, ‘‘[i]n the
context of a postjudgment appeal, if a review of the
record demonstrates that an unpleaded [issue] actually
was litigated at trial without objection such that the
opposing party cannot claim surprise or prejudice, the
judgment will not be disturbed on the basis of a pleading
irregularity. . . . In making this determination, our
courts look not only to what occurred during the hear-
ing itself . . . but also to whether actions occurring
prior to the hearing placed the party on notice as to the
unpleaded issues or facts.’’ (Internal quotation marks
omitted.) Swain v. Swain, supra, 213 Conn. App. 419–
20.
Moreover, ‘‘[a] fundamental premise of due process
is that a court cannot adjudicate any matter unless the
parties have been given a reasonable opportunity to be
heard on the issues involved . . . . It is a fundamental
tenet of due process of law as guaranteed by the four-
teenth amendment to the United States constitution
and article first, § 10, of the Connecticut constitution
that persons whose . . . rights will be affected by a
court’s decision are entitled to be heard at a meaningful
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time and in a meaningful manner. . . . Whe[n] a party
is not afforded an opportunity to subject the factual
determinations underlying the trial court’s decision to
the crucible of meaningful adversarial testing, an order
cannot be sustained.’’ (Internal quotation marks omit-
ted.) Ill v. Manzo-Ill, 210 Conn. App. 364, 376–77, 270
A.3d 108, cert. denied, 343 Conn. 909, 273 A.3d 696
(2022); see also Pritchard v. Pritchard, 103 Conn. App.
276, 288, 928 A.2d 566 (2007) (‘‘[b]ecause the court acted
in violation of the state’s due process rights to be given
adequate notice of the issues the court intended to
address, and, accordingly, to be given a reasonable
opportunity to be heard in sufficient time to prepare a
position on the issues involved, the action taken by the
court cannot stand’’).
In the present case, the plaintiff did object—in a
timely and consistent manner—to the introduction of
the testimony regarding his allegedly contemptuous
conduct in failing to split the proceeds of the postdisso-
lution stock sale with the defendant. Although the plain-
tiff did have some notice of the defendant’s claim when
the defendant filed her proposed orders one week
before the hearing on the plaintiff’s motion, the court
specifically tailored the admission of the testimony in
question toward its assessment of the plaintiff’s overall
financial picture as well as for credibility purposes,
rather than to support a claim that the plaintiff failed
to comply with the terms of the agreement.
Moreover, the court acknowledged that the issue
would ‘‘arguably [be] best addressed through a motion
for contempt’’ but that ‘‘the efficiency of addressing it
here outweighs the possible propriety of addressing it
there.’’ As the plaintiff repeatedly argued before the
court, the failure of the defendant to file her own motion
to raise these issues implicates due process and is inher-
ently unfair. This is especially true with issues effec-
tively charging a party with contempt of court. ‘‘[T]here
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are constitutional safeguards that must be satisfied in
indirect contempt cases. It is beyond question that due
process of law . . . requires that one charged with con-
tempt of court be advised of the charges against him,
have a reasonable opportunity to meet them by way of
defense or explanation, have the right to be represented
by counsel, and have a chance to testify and call other
witnesses in his behalf, either by way of defense or
explanation. . . . [U]nder Connecticut law, such pro-
ceedings should be proven by clear and convincing
evidence.’’ (Citations omitted; footnotes omitted; inter-
nal quotation marks omitted.) Brody v. Brody, 315
Conn. 300, 317–19, 105 A.3d 887 (2015).
In light of the plaintiff’s objections and the court’s
assurance at the April 17, 2023 hearing that this testi-
mony would be admitted for the ‘‘limited purpose’’ of
assessing credibility and establishing the plaintiff’s total
financial picture, we conclude that the court abused its
discretion in considering this evidence beyond those
stated purposes. We further conclude that, having deter-
mined that the plaintiff failed to share the proceeds of
the stock sale with the defendant—an issue not properly
raised in a motion with due notice to the plaintiff—
the court’s award to the defendant of a commensurate
reduction in the arrearage owed to the plaintiff was
harmful and violated the plaintiff’s due process rights.
II
The plaintiff next claims that the court, in responding
to the defendant’s request for clarification, improperly
modified the nonmodifiable term of the alimony. The
plaintiff argues that the court misconstrued the unam-
biguous language of the agreement, which terminates
alimony in September, 2027. In essence, the plaintiff
contends that, in construing the agreement to require
the plaintiff to issue payment in 2028, beyond the term
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of the alimony as agreed to by the parties, such pay-
ment based on his 2027 income—including year-end
bonuses—the court improperly modified the terms of
the agreement. We do not agree.
We begin by setting forth the applicable standard of
review. ‘‘It is well established that a separation agree-
ment 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 con-
nected 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 lan-
guage 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. . . .
‘‘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 when
ordinary meaning leaves no room for ambiguity. . . .
Moreover, the mere fact that the parties advance differ-
ent interpretations of the language in question does not
necessitate a conclusion that the language is ambigu-
ous. . . .
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‘‘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.
. . . If the language of the contract is susceptible to
more than one reasonable interpretation, the contract
is ambiguous.’’ (Citation omitted; internal quotation
marks omitted.) Brown v. Brown, 199 Conn. App. 134,
144–45, 235 A.3d 555 (2020). A ‘‘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.’’ (Internal quotation
marks omitted.) Id., 147.
As the court expressly found in its memorandum of
decision, and as the language of the agreement clearly
supports, the defendant is dependent on the plaintiff
‘‘until 2027 when both parties have agreed that alimony
will certainly end.’’ In our view, the plain and unambigu-
ous language of the agreement indicates that the parties
intended to craft an agreement that would provide the
defendant with alimony for twelve years after the date
of dissolution, such alimony being based on the plain-
tiff’s earnings for that year. Section 3.1 of the agreement
explicitly states that alimony would persist, with pay-
ments made on the first of each month, until the death
of either party, the defendant’s cohabitation, or ‘‘for an
otherwise nonmodifiable term of twelve (12) years from
the date of dissolution . . . .’’ The plaintiff was obli-
gated to pay to the defendant a monthly alimony pay-
ment calculated in relation to his ‘‘gross annual earned
income from employment.’’ Section 3.1 of the agree-
ment further provided that these payments ‘‘shall be
made as and when [g]ross [e]arned [i]ncome from
[e]mployment is received’’ by the plaintiff. Section 3.2
of the agreement defined gross annual earned income
from employment to mean ‘‘all compensation paid and
transferred by the [plaintiff’s] employer to him on
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account of personal services rendered by the [plaintiff]
and any and all earnings of any nature received by the
[plaintiff] in the form of cash or cash equivalents or
which the [plaintiff] is entitled to receive from any and
all sources rendered by the [plaintiff] by way of his
current or future employment, before deductions . . .
including but not limited to: (a) salary and/or base salary
. . . (d) bonus, guaranteed bonus and/or performance
awards . . . .’’ We reiterate that section 3.4 of the
agreement specifically states: ‘‘Within thirty (30) days
after December 31 of each calendar year in which
alimony and/or child support is payable to the [defen-
dant], the [plaintiff] shall provide the [defendant] with
all documents necessary to confirm his gross earned
income from employment from all sources, including
bonuses. Not later than March 15 of each year, com-
mencing March 15, 2016, the parties shall determine
whether the [plaintiff] has paid to the [defendant] the
correct amount of unallocated alimony and child sup-
port, as the case may be, for the immediately preceding
calendar year.’’ (Emphasis added.)
In our view, the final calculation of alimony due to
the defendant contemplates any bonuses awarded in
2028 for work performed through September, 2027,
without improperly modifying the terms of the alimony
agreement. Put differently, the agreement anticipates
that the plaintiff will be entitled to receive year-end
bonuses based on his employment over the previous
calendar year, and that these bonuses will be calculated
no later than March 15, 2028. Accordingly, we conclude
that the court did not modify the terms of the alimony
provision of the agreement.
The judgment is reversed in part and the case is
remanded with direction to vacate the order entitling
the defendant to a $20,000 reduction of the arrearage
owed to the plaintiff.
In this opinion the other judges concurred.