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*********************************************** 
CLAUDIA PUFF v. GREGORY PUFF

(SC 20058)

Robinson, C. J., and McDonald, D’Auria,

Mullins, Kahn and Ecker, Js.

Syllabus

The plaintiff, whose marriage to the defendant previously had been dissolved, appealed to the Appellate Court from certain postjudgment

orders of the trial court modifying alimony, finding her in contempt for

her wilful violation of a court order, and awarding, inter alia, attorney’s

fees to the defendant. After the trial court granted the plaintiff’s motion

for modification of alimony, increased the amount of monthly alimony

and extended the duration of those payments, the plaintiff moved to

open and vacate the judgment on the ground that the defendant had

failed to disclose a pending employment offer at considerably higher

compensation. The trial court granted the motion and opened the judgment for the purpose of hearing new evidence. Thereafter, the parties

and their counsel appeared before the court, requesting to place on the

record an oral stipulation regarding alimony payments and other terms

that they had negotiated. The stipulation required the defendant to

increase his alimony payments, with a provision that the plaintiff could

assign those payments to a special needs trust, under which the defendant was to be a residuary beneficiary. The stipulation obligated the

plaintiff to draft the special needs trust and to secure or endeavor to

secure a legal opinion that the trust arrangement would not affect the

defendant’s right to deduct the alimony payments from his federal tax

obligations. Following the trial court’s canvass of the parties, the court

approved and ordered the stipulation, and, subsequently, the defendant

moved for an order, asking the court to approve a written embodiment

of the oral stipulation prepared by his counsel, to which the plaintiff

objected. The plaintiff claimed, among other things, that the parties

were unaware when they drafted the stipulation that it was impossible

to create a legally valid special needs trust or to afford the defendant

a tax deduction for the alimony according to the terms of the stipulation

and, therefore, that the defendant’s motion for order should be denied

and the stipulation should be vacated. The plaintiff then filed a motion

to open and vacate the court’s order approving the stipulation, to which

the defendant objected. In support of her motion, the plaintiff asserted

that she had received an opinion from an accountant who had determined that the defendant’s alimony payments would not be deductible

under the terms of the stipulation. Following several hearings, the court

presented the parties with its memorandum of decision on the postjudgment motions resolved by stipulation, which reduced the oral stipulation

to writing. The plaintiff objected on the ground that the decision did

not reflect her counsel’s statement that, if the parties were unable to

obtain an opinion that confirmed that the alimony payments were

deductible and that the plaintiff would receive those payments as contemplated, the plaintiff would not agree to the stipulation. The trial court

responded that a binding agreement had been approved and ordered

and that it was not contingent in nature. The plaintiff declined to withdraw her motion to open, and the court declined to deny it because

there had not yet been a hearing on the merits but stated that the

motion was procedurally defective. The defendant then filed a motion

for sanctions and for contempt, claiming that, after settling years of

litigation by stipulating to the modification, the plaintiff failed to meet

her obligations under that stipulation and contested her own settlement

through improper procedural mechanisms. In connection with his

request for sanctions, the defendant sought an award of attorney’s fees

and expert fees incurred for defense against the plaintiff’s motions, and

he asked that the court find the plaintiff in contempt for her wilful

failure to create the special needs trust and to seek the legal opinion

required by the order approving the stipulation, as well as for intentionally not acting in good faith to implement that order. He requested that

the order of contempt include an award of expenses he had incurred
in defending against the plaintiff’s motion to open and in employing an

expert to draft the special needs trust that the plaintiff had failed to

produce. The trial court thereafter granted the defendant’s motion for

contempt and for sanctions, finding by clear and convincing evidence

that the plaintiff had wilfully violated the trial court’s order approving

the stipulation. The court awarded the defendant attorney’s fees and

expert fees in an amount corresponding to all litigation expenses

incurred by the defendant after the date on which the trial court entered

the order approving the stipulation. On appeal to the Appellate Court,

that court upheld the trial court’s decision on the postjudgment motions

resolved by stipulation but reversed its decision with respect to the

contempt order, concluding that, in light of the undisputed fact that the

plaintiff made at least some effort to obtain the legal opinion she was

required to secure or endeavor to secure, it was left with a definite and

firm conviction that the trial court’s finding of contempt was clearly

erroneous. In light of that conclusion, the Appellate Court did not address

the reasonableness of the award of attorney’s fees and expert fees.

From the Appellate Court’s judgment, the defendant, on the granting of

certification, appealed, claiming that the plaintiff did not comply with

the legal opinion requirement but that, in any event, the trial court’s

award was based on a broader course of conduct than the failure to

secure the legal opinion. After oral argument, and in response to a

request from this court, the trial court issued an articulation, stating,

inter alia, that its order was based both on the plaintiff’s wilful contempt

of its order approving the stipulation and on the plaintiff’s subsequent

litigation misconduct, which caused undue delay and expense to the

defendant. As the basis for its finding of wilful contempt, the trial court

noted, inter alia, that the plaintiff violated three provisions in the parties’

stipulation, the first prohibiting the parties from disparaging each other,

the second requiring the plaintiff to obtain the legal opinion, and the

third limiting the parties’ disclosure or publication of the settlement.

The court cited, as an additional basis for its finding of wilful contempt,

the parties’ representation at the hearing on the order approving the

stipulation that the parties would work together to reduce the stipulation

to writing and that, in the event of a dispute, the parties would seek

the court’s involvement. Held:

1. The trial court’s order of contempt must be reversed, as none of the bases

on which the court relied for that order supported it, and, accordingly,

this court upheld the Appellate Court’s reversal of the contempt order:

with respect to the plaintiff’s purported violation of the nondisparagement and nonpublication provisions of the stipulation, the defendant

did not advance either ground in his motion for contempt or at the

hearing on that motion, the articulation did not identify any particular

statement that violated either provision, and to allow the order of contempt to rest on either basis would contravene the plaintiff’s due process

rights; moreover, the trial court’s reliance in its articulation on the

undisputed fact that there was no letter from an accountant in the court

file or submitted into evidence as proof of the plaintiff’s wilful violation

of the stipulation’s provision requiring the plaintiff to secure or endeavor

to secure a legal opinion was problematic, as there was a draft written

opinion by an accountant appended to one of the plaintiff’s motions,

the court’s requirement that the plaintiff prove the existence of the letter

misallocated the burden of proof because the defendant had the burden,

as the party moving for the contempt order, to prove by clear and

convincing evidence that the plaintiff wilfully violated this provision,

and the defendant offered no testimony regarding the availability of, or

the plaintiff’s failure to undertake good faith efforts to obtain, the legal

opinion; furthermore, the court’s finding of contempt on the basis of

the parties’ representation that they would work together to reduce the

oral stipulation to writing was also problematic, as the defendant did

not seek a contempt order on this ground, thereby raising due process

concerns, the defendant did not offer any evidence to prove contempt

on this basis and therefore could not meet his burden of proof, and the

pleadings did not support the trial court’s conclusion, as the defendant’s

motion for order did not allege that the defendant’s counsel made any

effort to work with the plaintiff or her counsel to memorialize the

stipulation before the defendant filed his motion for contempt, and,

insofar as the stipulation obligated the parties to bring disputes over

its wording to the trial court’s attention, the record clearly revealed that

the plaintiff did so.
2. Insofar as the trial court’s award of attorney’s fees and expert fees was

based on litigation misconduct, it lacked the requisite findings, and,

accordingly, this court remanded the case for further proceedings on

the defendant’s motion for sanctions; although attorney’s fees generally

are not awarded to the successful party in the absence of a contractual

or statutory exception, a court has inherent authority to award attorney’s

fees when the losing party has acted in bad faith, but the trial court in

the present case failed to make the findings necessary to support its

award for litigation misconduct, that is, that the plaintiff acted in bad

faith and did not advance any colorable claims.

Argued February 19, 2019—officially released January 14, 2020

Procedural History

Action for the dissolution of a marriage, and for other

relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the court, Grogins, J.,

rendered judgment dissolving the marriage and granting

certain other relief in accordance with the parties’ separation agreement; thereafter, the court, Emons, J.,

granted the plaintiff’s motion for modification of alimony; subsequently, the court, Emons, J., granted the

plaintiff’s motion to open; thereafter, the court, Heller,

J., issued certain orders in accordance with the parties’

stipulation; subsequently, the court, Heller, J., denied

the plaintiff’s motion to reargue or reconsider, and the

plaintiff appealed to the Appellate Court; thereafter, the

court, Tindill, J., granted the defendant’s motion for

sanctions and for contempt, and the plaintiff filed an

amended appeal with the Appellate Court, DiPentima,

C. J., and Beach and Bishop, Js., which reversed the

trial court’s judgment only as to the finding of contempt

and remanded the case with direction to deny the

motion for contempt, and the defendant, on the granting

of certification, appealed to this court. Affirmed in

part; reversed in part; further proceedings.

Edward M. Kweskin, with whom, on the brief, was

Sarah Gleason, for the appellant (defendant).

Samuel V. Schoonmaker IV, with whom, on the brief,

was Wendy Dunne DiChristina, for the appellee (plaintiff).
Opinion

McDONALD, J. This postdissolution matter stems

from the parties’ oral stipulation following a motion for

modification of alimony, the trial court’s adoption of

that stipulation as a court order, and subsequent litigation efforts by the defendant, Gregory Puff, on one

hand, to carry the order into effect, and by the plaintiff,

Claudia Puff, on the other hand, to challenge the order.

At issue is the trial court’s decision granting the defendant’s motion for sanctions and for contempt and

awarding him more than $169,000 in attorney’s fees

and expert fees, i.e., all the litigation expenses he had

incurred following the entry of the order adopting the

stipulation. In his certified appeal, the defendant challenges the Appellate Court’s judgment reversing the

judgment of contempt. See Puff v. Puff, 177 Conn. App.

103, 129, 171 A.3d 1076 (2017). He contends that the

award was based on a broader course of conduct than

the one part of the order considered by the Appellate

Court and that the trial court’s award was proper. On

the basis of the trial court’s articulation ordered by this

court, we conclude that, insofar as the award is based

on contempt, it cannot stand on any of the grounds

articulated by the trial court. Insofar as the award is

based on litigation misconduct, it lacks the requisite

findings. We therefore affirm the Appellate Court’s judgment but direct that court to remand the case to the

trial court for further proceedings on the defendant’s

motion for sanctions for litigation misconduct.

I

The record reveals the following facts, either found

by the trial court or otherwise undisputed. The parties’

fourteen year marriage was dissolved in 2002. The judgment of dissolution incorporated a separation agreement, under which the defendant was obligated to pay

periodic alimony of $5900 per month for a period of

ten years, plus biannual payments totaling an additional

$10,000 for that same period.1

In 2009, three years before

those obligations were to terminate, the plaintiff filed

a motion seeking to modify the alimony related orders.

The grounds alleged for the modification were an

increase in the defendant’s income and the plaintiff’s

deteriorating health due to a recent diagnosis of a serious medical issue. The trial court, Emons, J., granted

the motion, increasing the monthly alimony to $6100

and extending the duration of those payments to February, 2016, with both the amount and the duration not

subject to further modification. Weeks after that decision was issued, the plaintiff filed a motion to open and

vacate the judgment on the ground that the defendant

had not disclosed to the court an imminent offer of

employment at considerably higher compensation,

which became final days after the modification was

ordered. The court granted the motion in April, 2013,

opening the judgment for the purpose of hearing new
evidence.2

A

Entry of an Oral Stipulation as a Court Order

In February, 2014, the parties and their counsel

appeared before the court, requesting to put an oral

stipulation on the record that they had negotiated. The

defendant was represented by Edward M. Kweskin, and

the plaintiff was represented by Norman Roberts.

Kweskin made prefatory remarks about the agreement

before stating the particulars on the record. He stated

that it was the parties’ intention to have the court enter

the stipulation as an order if the court were to approve

it. He explained that this process was intended to confirm the terms on which the parties had agreed before

the defendant returned to his foreign residence.

Kweskin stated that the parties’ intention was to distill

the agreement into writing, after experts had been consulted on certain mechanics of the agreement still to be

determined, and to have any disputes about the writing

brought to the court for resolution consistent with the

oral stipulation. He made clear, however, that the parties intended for the stipulation to be an enforceable

order that was not conditioned on the execution of the

written agreement.

Kweskin then recited the twelve paragraphs that comprised the stipulation, while Roberts weighed in with

any clarifications that he thought necessary. The principal substantive terms of the stipulation were as follows.

The defendant was required to pay, along with certain

other obligations, $10,000 per month for a period of

ten years, as alimony taxable to the plaintiff and tax

deductible by the defendant. The plaintiff had the right

to assign those payments to a special needs trust.3 The

defendant would be made a residual beneficiary of the

trust, in the same proportion to the payments that he

had made to the trust. In order for the defendant to be

secure in his right to a tax deduction under present law

or in the event of changes to the law, should any tax

deduction be disallowed, he had the right to recoup

from the trust the value of that deduction and any penalties assessed if sufficient offsets could not be made

from pending payment obligations to the plaintiff.

The defendant also was obligated to make a specific

contribution toward the attorney’s fees of a designated

special needs trust attorney. His counsel had the right

to review the terms of the trust before it was executed

by the plaintiff to ensure that the trust conformed to

the terms of the oral stipulation.

The stipulation obligated the plaintiff to ‘‘immediately

. . . secure or endeavor to secure a legal opinion that

the deductibility by the defendant of the alimony is not

impacted by any action taken by the plaintiff to assign

the alimony to the trust.’’ Counsel acknowledged that

the mechanics of transferring the alimony by means
that would ensure the deduction had not yet been determined, but the stipulation further provided that, ‘‘in

order to accomplish the deductibility . . . the parties,

through counsel, will work in good faith to achieve [that

method], with the result that the defendant shall have

the right [under federal tax law] to deduct the alimony . . . .’’

Roberts informed the court that he had been told

that the tax deduction would not be a problem and that

they were in the process of getting an opinion letter.

Roberts explained that ‘‘the linchpin of this whole deal

is that [the defendant] wants the income tax deduction

on the $10,000 a month . . . and that [the plaintiff]

wants to actually receive the $10,000 a month. You can

imagine that the delta between those two things, given

what the financial affidavits look like, is somewhere in

the neighborhood of 40, 45 percent. So it’s really, really

important to each of these people to have the tax treatment that we believe, and have both been advised,

exists. In order [to] sign off on paragraph 10 [allowing

the defendant to recoup disallowed deductions and penalties], [the plaintiff], in an, I don’t even think it’s abundance of caution, just some, in prudent practice, is going

to get an opinion letter from a special needs and a

tax person, who will opine that, yes, [the defendant’s]

deductibility is not impacted at all by the scheme that

we contemplate.’’ (Emphasis added.) Just before

Kweskin put the recoupment, or safety net, provision

on the record, Roberts stated that this provision ‘‘is the

reason that we are going to need the opinion letter

before this can be done.’’ (Emphasis added.)

After the stipulation was read into the record, the

court canvassed the parties. It inquired whether their

counsel had discussed the terms of the stipulation with

them, whether they understood the terms, and whether

they agreed that the terms were fair and equitable. The

parties gave affirmative responses to each question. The

plaintiff asked only one question, obtaining confirmation that she would be receiving $10,000 per month for

ten years. The court then approved and ordered the

stipulation. The court suggested that the parties ‘‘probably should have the full agreement with the terms of

the trust . . . also so ordered by the court.’’

B

The Defendant’s Motion for Order and the

Plaintiff’s Objection Thereto

In April, 2014, approximately two months after this

order was entered, Roberts sought permission to withdraw as the plaintiff’s counsel, which the court granted

the following month. In May, 2014, the defendant filed

a motion for order, asking the court to approve a written

embodiment of the oral stipulation prepared by his

counsel, a copy of which had been provided to the

plaintiff on that date. The day before a June hearing
on the motion, the plaintiff, through new counsel, Amy

J. Greenberg, filed an objection. Although the objection

addressed the defendant’s proposed draft, asserting

that it contained certain additions or omissions that

rendered it nonconforming to the oral stipulation, its

principal thrust was numerous arguments as to why

the stipulation itself was not binding or could not be

enforced. The plaintiff claimed that, unbeknownst to

the parties when they drafted the stipulation, it was

impossible either to create a legally valid special needs

trust or to afford the defendant a tax deduction for the

alimony under the terms of the stipulation.4 She further

contended that the stipulation was too ambiguous and

contained too many unknowns to result in an enforceable agreement, that these uncertainties precluded the

parties’ knowing consent, that the terms were unconscionable,5 and that the canvass of the plaintiff had been

insufficient. The plaintiff asserted that the defendant’s

motion for order should be denied and that the stipulation should be vacated.

The trial court held a hearing on the defendant’s

motion for order in June, 2014. Greenberg argued,

among other things, that viability of the stipulation was

dependent on the availability of the tax deduction and

that, after the oral stipulation was made, Roberts had

obtained an expert opinion from an accountant that

the alimony would not be deductible under the oral

stipulation’s terms. In response to Kweskin’s claim that

he had never seen this opinion, Greenberg countered

that Kweskin had been made aware of it, claiming that

Roberts’ records reflected communications between

counsel regarding the opinion and whether the defendant would be willing to forgo the residuary benefit to

save the tax deduction. The court declined to address

this matter, concluding that it was probably necessary

to address the issues before the court in two steps, first

determining whether the defendant’s written stipulation

accurately reflected the oral stipulation and then considering arguments as to why the agreement could not

be carried out. The court acknowledged that the plaintiff’s objection had included arguments as to discrepancies between the oral stipulation and the defendant’s

written stipulation and indicated that those concerns

would be considered. The court scheduled another

hearing on the matter for a later date.

C

The Plaintiff’s Motion To Open and

Vacate the February, 2014 Order

The day after the June hearing, the plaintiff filed a

motion to open and vacate the February, 2014 order

approving the oral stipulation. The grounds for the

motion mirrored those enumerated in her objection

to the defendant’s motion for order, including mutual

mistake and impossibility. One difference was that the

motion to open acknowledged the parties’ expectation
that they would receive an ‘‘opinion from a tax expert’’

that the defendant’s ability to deduct the payments

would not be impacted by the scheme that they contemplated, and asserted that such expert—identified as certified public accountant Ryan C. Sheppard—had determined that the payments would not be deductible under

the stipulation’s terms.

The defendant objected to the motion to open and

vacate on procedural and substantive grounds. He

claimed that the motion was defective because it was

not accompanied by a memorandum of law in violation

of the rules of practice.6 He also claimed that the plaintiff’s ‘‘scattershot challenge’’ sought to undo a carefully

reviewed agreement to which she had consented in an

effort to renegotiate terms more favorable to her. He

further asserted that, if, as the plaintiff contended, the

agreement contains a provision benefitting him that

jeopardized creation of a valid special needs trust; see

footnote 4 of this opinion; it was within the defendant’s

power to waive that provision in order to eliminate

any infirmity.

The parties appeared again before the court for an

August, 2014 hearing. The defendant submitted to the

court a revised draft memorializing the oral stipulation,

aimed at addressing the plaintiff’s earlier objections.

The plaintiff argued that the court should not sign off

on the draft because the terms are unenforceable under

the law for the reasons set forth in her objection and

motion to open, and because the draft did not incorporate the terms of the special needs trust. She further

argued that the defendant’s draft did not include a critical term—Roberts’ statement that the plaintiff would

not sign off on the agreement if the expert’s opinion

did not confirm the expectations of the parties. Because

these expectations could not be fulfilled, there was no

agreement, according to the plaintiff. In response, the

court stated: ‘‘I think [that] what the parties believed

at the time may not be what they believe today.’’ The

court explained that it first would turn the stipulation

into a written order and then would deal with any purported problems in carrying out that order. The plaintiff

reiterated concerns about two matters omitted from the

defendant’s draft, which the court agreed to consider.

Another hearing was scheduled for November, 2014.

Shortly before that hearing, each of the parties disclosed a special needs tax attorney as an expert witness

who would offer an opinion in support of their respective views as to whether a legally valid trust, rendering

the alimony payments tax deductible to the defendant,

could be created under the terms of the oral stipulation.

The plaintiff filed a motion in limine seeking to preclude

the defendant’s expert from offering such an opinion

predicated on adding or deleting terms to the oral stipulation. At this time, the plaintiff also filed a memorandum of law in support of her motion to open, which
the defendant objected to on the grounds that it was

untimely and a ‘‘sham’’ that merely mirrored her motion.

See footnote 6 of this opinion.

At the November, 2014 hearing, both parties had their

expert witnesses present. At the commencement of the

hearing, the court, apparently unexpectedly, presented

the parties with a ‘‘Memorandum of Decision on Postjudgment Motions Resolved by Stipulation Approved

and So Ordered on February 19, 2014,’’ which distilled

the oral stipulation into writing.7 The court announced

that the decision was intended to resolve the defendant’s motion for order. The plaintiff objected that the

decision did not reflect Roberts’ uncontested statement

setting forth a ‘‘condition precedent,’’ namely, that, if

they were unable to obtain an opinion confirming the

linchpin of the agreement—that the defendant would

get the deduction and the plaintiff would get the contemplated payments—the plaintiff would not ‘‘sign off’’

on the stipulation. In response to these arguments, the

court stated its view that a binding agreement had been

approved and ordered in February, 2014, and that it

was not contingent in nature.

After the plaintiff further argued that the parties’ erroneous belief that these conditions could be fulfilled

gave rise to a mutual mistake of law, the court sought

clarification of the plaintiff’s position. The court questioned whether the plaintiff was claiming that there was

a condition precedent to the existence of an agreement

or, alternatively, that a term of the contract could not

be performed. The court explained that, if the former,

the plaintiff’s argument would mean that the February,

2014 order never was effective because the condition

precedent would never occur. Only if the plaintiff’s

claim was the latter would she move to open an

approved order on the ground that the agreement cannot be performed. The court acknowledged that the

plaintiff could argue in the alternative.

Greenberg explained that she had filed the earlier

motion to open without having reviewed all of the facts

and the record, filing it as a ‘‘protective mechanism’’

because she had inherited the case near the four month

deadline for filing a motion to open. She characterized

the motion as unnecessary and ‘‘superfluous.’’ Greenberg stated that the plaintiff’s position was that there

was no final judgment triggering the four month period

to move to open because no notice of judgment had

been sent out after the oral stipulation was ordered and

because the stipulation was too indefinite and left too

many things open to render it final.

Before ascertaining whether the plaintiff was withdrawing the motion to open, the court inquired whether

any of the terms of the agreement had been carried

out. Kweskin represented that the defendant had been

making the $10,000 monthly alimony payment and had

provided funds to his counsel to hold in escrow for
some of the other payments due. When the court stated

to Greenberg that the defendant’s alimony payments

suggested that he believed that there was a final order,

Greenberg characterized the payments as ‘‘gratuitous.’’8

Greenberg declined to withdraw the motion to open

and, instead, attempted to recast it as a motion to vacate

the oral stipulation rather than to open and vacate the

February, 2014 order. The defendant challenged the

recast motion as procedurally improper. The court

declined to deny the motion to open because there had

not yet been a hearing on the merits and it was unclear

what direction the plaintiff was taking. The court nonetheless stated that the motion was procedurally defective for various unspecified reasons and advised that

the plaintiff could not reclaim it.

The plaintiff requested that, because the parties’

experts were present, the court hear their testimony

regarding whether the alimony was tax deductible and

whether a valid special needs trust could be formed

under the terms of the stipulation. The court rejected

the request in the absence of a proper pending motion.

In bringing the hearing to a close, the court stated

that it interpreted the plaintiff’s position to be that nothing that was legally binding occurred on February 19,

2014, that the plaintiff does not need to do anything,

and that the defendant is paying $10,000 a month gratuitously. The court then stated: ‘‘It does seem the ball

is probably in your court, Attorney Greenberg. Unless

[the defendant] and his counsel decide that they want

to take steps to enforce the stipulation—then, of course,

Attorney Kweskin would file the appropriate motion,

presumably for contempt. But, I think that’s where we

are.’’ Greenberg responded: ‘‘I don’t think there was

anything that my client probably even had to do at

this point.’’

D

The Plaintiff’s Motion To Reargue or Reconsider the

Decision Adopting the Oral Stipulation

The plaintiff thereafter filed a motion to reargue or

reconsider the court’s November, 2014 order memorializing the oral stipulation. She asked the court to vacate

both that decision and the oral stipulation, thereby

reinstating the case to its position prior to the stipulation. The plaintiff contended that she had been denied

a due process hearing on all of the issues that she had

raised in her objection to the defendant’s motion for

order. The defendant objected to the motion principally

on the ground that it reiterated arguments from the

motion to open that the plaintiff had been given the

opportunity but declined to pursue. The court denied

the motion to reargue or reconsider.

E

Motion for Sanctions and for Contempt
Concurrently with his objection to the plaintiff’s

motion to reargue, the defendant filed a motion for

sanctions and for contempt. Broadly stated, the factual

premise of the defendant’s motion was that, after settling five years of litigation by stipulating to a modification, the plaintiff failed to meet her obligations under

that stipulation and instead contested her own settlement through improper procedural mechanisms. In the

request for sanctions, the defendant sought an award

of attorney’s fees and expert fees incurred for defense

against (1) the plaintiff’s motion to open and vacate,

which was not accompanied by the memorandum of

law required by the rules of practice and thereby shifted

the burden of legal research to the defendant, and which

the plaintiff ultimately did not pursue in the form presented to the court, and (2) the plaintiff’s motion to

reargue or reconsider, on the ground that the motion

raised the same claims as the motion to open, despite

the court’s instruction that the plaintiff could not

reclaim the latter motion after she had ‘‘withdrawn’’ it.

The defendant further asked the court to find the

plaintiff in contempt for (1) her wilful failure to seek

the legal opinion required by the order, i.e., an opinion

from a lawyer, (2) her wilful failure to cause the special

needs trust to be drafted, and (3) intentionally not acting

in good faith to implement the order. The defendant

requested that the order of contempt include an award

of legal fees for expenses incurred in defending against

the motion to open and costs incurred in having a special needs trust expert draft the trust that the plaintiff

had failed to produce.

At the hearing on the motion for sanctions and for

contempt, neither party presented testimony. The only

documentary evidence submitted, other than the parties’ financial affidavits, was an affidavit from Kweskin

‘‘in support of the defendant’s request that the court

order that . . . the plaintiff pay all or a significant portion of the defendant’s legal fees and costs as part of

the sanctions against the plaintiff for the proliferation

of unnecessary, inconsistent, and oppressive litigation

which unfairly has driven up the [defendant’s] litigation

expenses incurred since the parties stipulated to a postjudgment alimony modification order on February 19,

2014 . . . .’’

With a limited exception that we will discuss later,

the hearing was largely a colloquy between the parties’

counsel and the trial court, Tindill, J. In comments to

the parties, the court emphasized that the parties had

been canvassed as to their understanding of, and agreement to, the oral stipulation. The court took issue with

inconsistencies in the plaintiff’s legal positions, characterizing the plaintiff’s position as: ‘‘It was an order, it

wasn’t, it was contingent, it wasn’t.’’ The court pointed

to the fact that the plaintiff had accepted the $10,000

monthly alimony payments while at the same time
arguing that the court order wasn’t valid, and stated:

‘‘She doesn’t get to pick and choose, counsel. You cannot have it all kinds of ways. It doesn’t work that way.’’

The court also pointed to the plaintiff’s failure to go

forward on her motion to open, which would have provided evidence from both sides’ experts regarding the

crux of the plaintiff’s position.

After the court renewed concerns about the plaintiff’s

litigation efforts that took the position that the agreement was unenforceable, Greenberg argued that the

plaintiff had ‘‘a good faith basis for raising all of the

issues that she did. And saying it was . . . too many

contingencies in that February 19th stipulation to make

it a final, viable, definitive order. And that’s what you

need for contempt. You need something that’s . . . a

good faith belief, which I think she had, that this was

not a final order, and was not something that she had

to follow. And she did come through with an . . . opinion from an attorney, Lisa Davis.’’9

The only discussion that addressed the defendant’s

specific grounds for contempt related to the plaintiff’s

obligation to obtain a ‘‘legal opinion’’ that the tax deduction was available under the terms of the agreement.

In discussing the impossibility argument, Greenberg

mentioned that the plaintiff had sought an opinion letter

from a tax person that revealed that the special needs

trust would have been illegal under the terms of the

order. The court inquired where the letter was, and

Greenberg replied that she did not have it with her but

would attempt to find it on her computer. The court

then asserted that, even if it assumed that the letter

existed, ‘‘[t]he problem with the whole thing is that [the

plaintiff] agreed to what was made a court order and

then she decided [that] she didn’t like the agreement.’’

Greenberg attempted to rebut this view by bringing

to the court’s attention an e-mail exchange between

counsel in which Roberts informed Kweskin that

research suggested that the deductibility of the alimony

would be put in jeopardy if the defendant were a residuary beneficiary and inquired whether it would be a

problem for the defendant not to be a residuary beneficiary of the trust. Kweskin questioned whether it was

proper for Greenberg to read this e-mail to the court,

to which the court replied: ‘‘Probably not.’’ Nonetheless,

Greenberg continued, noting that Kweskin indicated

that the defendant would not agree to relinquish residuary benefits.

Kweskin’s response on this subject was that the plaintiff was required to obtain a legal opinion from a lawyer, not an accountant. He pointed out that the letter

that Greenberg referred to was ‘‘a draft letter for discussion purposes only from an accountant.’’ Presumably in response to Greenberg’s impossibility argument,

Kweskin argued that the defendant had brought a special needs trust attorney to the hearing on the plaintiff’s
motion to open and vacate who came prepared to offer

an opinion that the defendant’s payments to the trust

would be tax deductible.

After these exchanges, the court posed questions

directly to the parties, who had been sworn in at the

court’s direction at the outset of the hearing. The only

questions directed to the plaintiff related to her income,

expenses, and needs. The questions directed to the

defendant addressed whether he had made any of the

payments required under the order (yes); whether he

had done so because he believed that he was obligated

to do so (yes); and whether the special needs trust

drafted by his expert afforded him the tax deduction

for the alimony (‘‘it did’’) and the residual benefits (‘‘I

think it did’’; ‘‘[y]es’’). At the close of the hearing, the

court informed the parties that it would take judicial

notice of the ‘‘entire file’’ to decide the motion.

The court thereafter issued an order, stating in relevant part: ‘‘The court, having reviewed relevant portions

of the court file, considered the parties’ respective

financial affidavits, testimony of the parties, argument

of counsel, and the criteria set forth in [General Statutes] § 46b-82, hereby grants the defendant’s postjudgment motion for sanctions and for contempt. The court

finds by clear and convincing evidence that a court

order was entered on February 19, 2014, that the plaintiff violated that court order, and that the plaintiff’s

violation of the order was wilful.

‘‘The defendant is awarded attorney’s [fees] and

expert fees, postjudgment, in the amount of $169,225.61

. . . .’’ This award corresponded to the amount

Kweskin provided to the court at the hearing for all

litigation expenses the defendant incurred after the date

on which the oral stipulation was entered as an order.

After the plaintiff appealed from the judgment of

contempt to the Appellate Court, the defendant filed a

motion for an articulation. He asserted that the court’s

order could be construed as making the award based

on contempt, on litigation misconduct, or on both, and

asked the court to clarify this matter. The trial court

denied the request, and the defendant did not seek

review of that decision.

F

Appellate Proceedings

Before the Appellate Court, the plaintiff challenged

(1) the decision on postjudgment motions resolved by

stipulation, both as to whether the underlying stipulation was enforceable and as to whether it was proper

to issue that decision, and (2) the order of contempt,

both as to the merits and the reasonableness of the

award. See Puff v. Puff, supra, 177 Conn. App. 103. The

Appellate Court affirmed the judgment with respect to

the decision on postjudgment motions and reversed the

judgment with respect to the contempt order. See id.,
105–106. In reversing the order of contempt, the Appellate Court apparently assumed that the only basis for

the award was the purportedly wilful violation of the

plaintiff’s obligation to ‘‘secure or endeavor to secure

a legal opinion that the deductibility by the defendant

of the alimony is not impacted by any action taken by

the plaintiff to assign the alimony to the trust.’’ (Internal

quotation marks omitted.) Id., 114. In rejecting that

basis, it reasoned: ‘‘It is undisputed that the plaintiff

made some effort to secure such a letter. Relying on the

draft opinion letter [from a certified public accountant],

she contends that it was impossible to obtain a correct

opinion that the defendant’s tax deductibility was not

jeopardized by his putative status as residual beneficiary. The defendant counters that not only was it possible to obtain such a letter, but that he had obtained

such an opinion. In light of the undisputed fact that the

plaintiff made at least some effort to secure the opinion

letter, we are left with a definite and firm conviction

that the court’s finding of contempt was clearly erroneous.’’ Id., 128–29. In light of its reversal on the merits,

the Appellate Court did not address the reasonableness

of the award.

This court denied the plaintiff’s petition for certification to appeal from the Appellate Court’s judgment insofar as it upheld the trial court’s decision on postjudgment motions; see Puff v. Puff, 327 Conn. 994, 175 A.3d

1245 (2018); but granted the defendant’s petition to

appeal from that judgment insofar as it reversed the

contempt order. See Puff v. Puff, 327 Conn. 994, 175

A.3d 1245 (2018). In his certified appeal, the defendant

contends that the plaintiff did not comply with the legal

opinion requirement but that, in any event, the trial

court’s award was based on a broader course of conduct

beyond the failure to obtain that opinion.

After oral argument, this court issued an order to the

trial court, Tindill, J., directing it to provide this court

with an articulation as to five matters: (1) whether the

court’s order granting the defendant’s motion for sanctions and for contempt was based solely on contempt

or also on litigation misconduct; (2) which part(s) of

the February 19, 2014 order provided the basis for the

finding of contempt; (3) what facts supported the finding of contempt for each such part; (4) what competent

evidence those factual findings rested on; and (5) the

basis for the $169,225.61 award. See Practice Book § 61-

10 (b) (permitting reviewing court to order articulation); see also Practice Book § 60-2 (permitting reviewing court to order judge to take any action necessary

to complete record for proper presentation of appeal).10

In response, the trial court issued an articulation stating that its order was based both on the plaintiff’s wilful

contempt of the February, 2014 court order and her

subsequent litigation misconduct, which caused undue

delay and expense to the defendant. The trial court
identified the parts of the February, 2014 order that

were the bases for the court’s finding of wilful contempt: (1) paragraph 8, which prohibits either party

from disparaging the other personally or professionally;

(2) paragraph 9, which requires the plaintiff to endeavor

to secure a legal opinion; and (3) paragraph 11, which

limits the parties’ disclosure or publication of the settlement. An additional basis for the contempt, as explained

by the trial court, was ‘‘the representation on February

19, 2014, that the parties would subsequently work

together to reduce the agreement to writing consistent

with the agreement read into the record. In the event

of a dispute over the wording requiring the court’s

involvement, the parties asked that the court resolve

the dispute consistent with the expressed oral agreement.’’ The articulation set forth seven facts,11 without

assigning them as support for any particular violation

of the order or designating them as applicable to contempt or litigation misconduct and cited generically to

the following evidence in support of its factual findings:

the parties’ ‘‘testimony’’ and their financial affidavits

filed at the contempt hearing; various transcripts or

recordings of hearings; and thirty-two pleadings filed

by the plaintiff between March, 2009, when she filed

her motion for modification, and February, 2014, when

the court adopted the stipulation as an order of the

court. The basis of the court’s award of litigation costs

was not explained in relation to either contempt or

litigation misconduct but as resting on ‘‘representations

of counsel,’’ the defendant’s testimony at the hearing

on the motion for sanctions and for contempt, and the

affidavit of fees submitted by Kweskin.

We are compelled to conclude that the trial court’s

judgment of contempt must be reversed, although our

decision is necessarily based on different and broader

grounds than the one adopted by the Appellate Court

in reaching the same conclusion. We further conclude

that the sanction for litigation misconduct must be

reversed.

II

The following principles are material to our review

of the contempt order. ‘‘Contempt is a disobedience to

the rules and orders of a court which has power to

punish for such an offense.’’ (Internal quotation marks

omitted.) In re Leah S., 284 Conn. 685, 692, 935 A.2d

1021 (2007); see also Blaydes v. Blaydes, 187 Conn. 464,

467, 446 A.2d 825 (1982) (‘‘[c]ourts have inherent power

to coerce compliance with their orders through appropriate sanctions for contemptuous disobedience of

them’’). The present case involves allegations of indirect

civil contempt. ‘‘A refusal to comply with an injunctive

decree is an indirect contempt of court because it

occurs outside the presence of the trial court.’’ (Internal

quotation marks omitted.) Brody v. Brody, 315 Conn.

300, 317, 105 A.3d 887 (2015).
‘‘[C]ivil contempt is committed when a person violates an order of court which requires that person in

specific and definite language to do or refrain from

doing an act or series of acts.’’ (Emphasis omitted;

internal quotation marks omitted.) Gabriel v. Gabriel,

324 Conn. 324, 333, 152 A.3d 1230 (2016); see also Powell-Ferri v. Ferri, 326 Conn. 457, 468, 165 A.3d 1124

(2017) (civil contempt may be founded only on clear

and unambiguous court order). In part because the

contempt remedy is ‘‘particularly harsh’’; Blaydes v.

Blaydes, supra, 187 Conn. 467; ‘‘such punishment

should not rest upon implication or conjecture, [and]

the language [of the court order] declaring . . . rights

should be clear, or imposing burdens [should be] specific and unequivocal, so that the parties may not be

misled thereby.’’ (Internal quotation marks omitted.)

Parisi v. Parisi, 315 Conn. 370, 382, 107 A.3d 920 (2015).

To constitute contempt, it is not enough that a party

has merely violated a court order; the violation must

be wilful. See, e.g., Eldridge v. Eldridge, 244 Conn. 523,

529, 710 A.2d 757 (1998); Connolly v. Connolly, 191

Conn. 468, 483, 464 A.2d 837 (1983). ‘‘The inability of

a party to obey an order of the court, without fault on

his part, is a good defense to the charge of contempt.

Mallory v. Mallory, 207 Conn. 48, 57, 539 A.2d 995

(1988).’’ (Internal quotation marks omitted.) Eldridge

v. Eldridge, supra, 532.

It is the burden of the party seeking an order of

contempt to prove, by clear and convincing evidence,

both a clear and unambiguous directive to the alleged

contemnor and the alleged contemnor’s wilful noncompliance with that directive. See, e.g., Norberg-Hurlburt

v. Hurlburt, 162 Conn. App. 661, 671, 133 A.3d 482

(2016); Marshall v. Marshall, 151 Conn. App. 638, 651,

97 A.3d 1 (2014); Statewide Grievance Committee v.

Zadora, 62 Conn. App. 828, 832, 772 A.2d 681 (2001);

see also Latino Officers Assn. City of New York, Inc.

v. New York, 558 F.3d 159, 164 (2d Cir. 2009). If the

moving party establishes this twofold prima facie case,

the burden of production shifts to the alleged contemnor to provide evidence in support of the defense of

an inability to comply with the court order. See, e.g.,

Afkari-Ahmadi v. Fotovat-Ahmadi, 294 Conn. 384, 397,

985 A.2d 319 (2009); Eldridge v. Eldridge, supra, 244

Conn. 532; Leslie v. Leslie, 174 Conn. 399, 403, 389 A.2d

747 (1978); see also Gascho v. Global Fitness Holdings,

LLC, 875 F.3d 795, 800 (6th Cir. 2017), cert. denied,

U.S. , 138 S. Ct. 2576, 201 L. Ed. 2d 294 (2018); Combs

v. Ryan’s Coal Co., 785 F.2d 970, 984 (11th Cir.), cert.

denied sub nom. Simmons v. Combs, 479 U.S. 853, 107

S. Ct. 187, 93 L. Ed. 2d 120 (1986).

The question of whether the underlying order is clear

and unambiguous is a legal inquiry subject to de novo

review. See, e.g., In re Leah S., supra, 284 Conn. 693.

If we answer that question affirmatively, we then review
the trial court’s determination that the violation was

wilful under the abuse of discretion standard. See id.,

693–94.

In conducting this review, we must be mindful of

due process concerns that arise in cases of indirect

contempt, i.e., where the court has not personally

observed the contempt. In the absence of an admission

of contempt, indirect contempt must be proven by clear

and convincing evidence. See Brody v. Brody, supra,

315 Conn. 318–19; see also Edmond v. Foisey, 111 Conn.

App. 760, 771, 961 A.2d 441 (2008) (‘‘A finding of indirect

civil contempt must be established by [clear and convincing evidence] that is premised on competent evidence presented to the trial court and based on sworn

testimony. . . . A trial-like hearing should be held if

issues of fact are disputed.’’ [Emphasis omitted; internal

quotation marks omitted.]). ‘‘A judgment of contempt

cannot be based on representations of counsel in a

motion, but must be supported by evidence produced

in court at a proper proceeding.’’ (Internal quotation

marks omitted.) Kelly v. Kelly, 54 Conn. App. 50, 60,

732 A.2d 808 (1999); accord Edmond v. Foisey, supra,

772; see also Baker v. Baker, 95 Conn. App. 826, 832–33,

898 A.2d 253 (2006).

In applying these standards to the record in the present case, we are compelled to conclude that the order

of contempt must be reversed. Insofar as the articulation cites paragraphs 8 and 11 of the oral stipulation,

respectively setting forth nondisparagement and nonpublication obligations, as bases for contempt, the

defendant did not advance either ground in his motion.

The record does not indicate that either ground was

belatedly advanced at the hearing on the motion. Nor

does the articulation identify any particular statement

that violates either provision. It is evident that to allow

the order of contempt to rest on either basis would

contravene the plaintiff’s due process rights. ‘‘[D]ue

process of law . . . requires that one charged with contempt 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.’’ (Internal quotation marks omitted.)

Brody v. Brody, supra, 315 Conn. 317.

The articulation also relies on paragraph 9 of the oral

stipulation, which obligated the plaintiff to ‘‘secure, or

endeavor to secure, a legal opinion that deductibility

by the defendant is not impacted by any action taken

by the plaintiff to assign the alimony to the trust.’’12

The articulation recites as proof of the plaintiff’s wilful

violation of this provision the ‘‘undisputed’’ fact that

there was no letter from a certified public accountant

in the court file or such a letter submitted into evidence.

There are two problems with this reasoning. First, the
accountant’s draft written opinion was in the court file;

a copy is appended to the plaintiff’s motion to reargue

and reconsider the court’s November, 2014 memorandum of decision memorializing the parties’ oral stipulation.13 Second, and more fundamental, the court misallocates the burden of proof to the plaintiff. It was the

defendant’s burden, as the moving party, to prove by

clear and convincing evidence that the plaintiff had

wilfully violated this obligation. An allegation contained

in the defendant’s motion for contempt does not suffice.

See Kelly v. Kelly, supra, 54 Conn. App. 60. The defendant offered no testimony regarding the availability of

the written opinion despite the plaintiff’s claim of

responsibility, or the plaintiff’s failure to undertake

good faith efforts to obtain the opinion letter. The only

documentary evidence he submitted relevant to contempt, his counsel’s affidavit in support of the request

for attorney’s fees, did not address this obligation.

Even if the trial court could have viewed statements

by Greenberg asserting that the plaintiff had obtained

the accountant’s opinion to meet her legal opinion obligation as a judicial admission that relieved the defendant of his burden of production; see Kanopka v.

Kanopka, 113 Conn. 30, 39, 154 A. 144 (1931) (noting

that judicial admission, which ‘‘may be made by a party

as well as by his counsel,’’ does away with need for

evidence to prove fact admitted); see also Brye v. State,

147 Conn. App. 173, 178, 81 A.3d 1198 (2013) (‘‘Judicial

admissions are voluntary and knowing concessions of

fact by a party or a party’s attorney occurring during

judicial proceedings. . . . They excuse the other party

from the necessity of presenting evidence on the fact

admitted and are conclusive on the party making them.’’

[Internal quotation marks omitted.]); the judicial admission would not suffice as proof of the fact admitted.14

The last basis on which the court’s articulation rested

its finding of contempt was the parties’ representation

to the court that they would subsequently work together

to reduce the agreement to writing consistent with the

oral stipulation put on the record and that, in the event

of a dispute over the wording, they would ask the court

to resolve the dispute consistent with the expressed

oral agreement. There are at least three problems with

a finding of contempt on this basis. First, this too was

not a ground on which the defendant sought an order

of contempt, raising the same due process concerns

previously cited.15 Second, presumably because this

ground was not included as part of his contempt motion

or related pleadings, the defendant did not offer any

evidence to prove contempt on this basis, and, therefore, he could not meet his burden of proof. Third, the

pleadings do not support the conclusion that the trial

court reached. The defendant’s motion for order does

not allege that his counsel made any effort to work

with the plaintiff or her counsel to memorialize the

stipulation prior to filing that motion. The motion indi-
cates that the defendant’s draft was provided to the

plaintiff for the first time on the same day that the

defendant filed the motion. Insofar as the stipulation

obligated the parties to bring disputes over wording to

the court’s attention, the record clearly reveals that the

plaintiff did so. The court’s finding of contempt on this

basis also cannot stand.

None of the bases relied on by the trial court for its

order of contempt supports that order. Although there

were two other bases advanced in the defendant’s

motion that the court did not cite in its articulation,

we must infer that the trial court rejected them. See

footnote 2 of this opinion (applying similar inference

to court’s failure to address plaintiff’s unclean hands

defense). Therefore, the order granting the defendant’s

motion for contempt must be reversed.

III

This leaves the ground of litigation misconduct as a

purported basis for the court’s $169,225.61 award of

attorney’s fees and expert fees. The trial court’s order,

even as supplemented by the articulation, is fatally

flawed.

An exception to the common-law rule that attorney’s

fees are not allowed to the successful party in the

absence of a contractual or statutory exception ‘‘is the

inherent authority of a trial court to assess attorney’s

fees when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons. . . . [A]

litigant seeking an award of attorney’s fees for the bad

faith conduct of the opposing party faces a high hurdle.

. . . To ensure . . . that fear of an award of [attorney’s] fees against them will not deter persons with

colorable claims from pursuing those claims, we have

declined to uphold awards under the [bad faith] exception absent both clear evidence that the challenged

actions are entirely without color and [are taken] for

reasons of harassment or delay or for other improper

purposes . . . and a high degree of specificity in the

factual findings of [the] lower courts. . . . Whether

a claim is colorable, for purposes of the [bad faith]

exception, is a matter of whether a reasonable attorney

could have concluded that facts supporting the claim

might be established, not whether such facts had been

established. . . . To determine whether the [bad faith]

exception applies, the court must assess whether there

has been substantive bad faith as exhibited by, for

example, a party’s use of oppressive tactics or its wilful

violations of court orders; [t]he appropriate focus for

the court . . . is the conduct of the party in instigating

or maintaining the litigation. . . .

‘‘[Our case law] makes clear that in order to impose

sanctions pursuant to its inherent authority, the trial

court must find both that the litigant’s claims were

entirely without color and that the litigant acted in bad
faith.’’ (Citations omitted; emphasis altered; internal

quotation marks omitted.) Berzins v. Berzins, 306

Conn. 651, 661–63, 51 A.3d 941 (2012); see Maris v.

McGrath, 269 Conn. 834, 846–47, 850 A.2d 133 (2004);

CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375,

394, 685 A.2d 1108 (1996), overruled in part on other

grounds by State v. Salmon, 250 Conn. 147, 154–55, 735

A.2d 333 (1999); see also Lederle v. Spivey, 332 Conn.

837, 848 n.8, 213 A.3d 481 (2019) (concluding that,

although subordinate findings must have high degree

of specificity, trial court need not separately indicate

which factual findings relate to which prong, colorability or bad faith, because subordinate factual findings

that support bad faith could also support lack of colorability).

In the present case, even after the court was afforded

an opportunity to articulate the basis of its award, it

not only failed to support its decision with a high degree

of specificity, it failed to make the two critical findings

necessary to support its award for litigation misconduct—that the plaintiff acted in bad faith and failed to

advance any colorable claims.16 Perhaps the trial court

operated under the misimpression that no such findings

are required when litigation misconduct arises in connection with contempt. Such an approach, however,

clearly would be in tension with our case law not only

as to litigation misconduct, but also as to contempt,

which directs parties to resort to the courts rather than

to self-help to obtain relief from court-ordered obligations. See, e.g., Sablosky v. Sablosky, 258 Conn. 713,

720, 722, 784 A.2d 890 (2001); see also In re Leah S.,

supra, 284 Conn. 700 (court’s contempt case law

enforces ‘‘important public policy against resorting to

self-help tactics’’). The defendant did allege facts in

support of such findings. In other cases in which the

trial court has failed to make the essential findings due

to the application of an incorrect legal standard, we

have reversed and remanded for further proceedings.

See, e.g., Berzins v. Berzins, supra, 306 Conn. 663

(reversing and remanding for further proceedings when

trial court had failed to make finding of bad faith). Cf.

Rinfret v. Porter, 173 Conn. App. 498, 510, 513–16, 164

A.3d 812 (2017) (when trial court made twenty-eight

factual findings but did not state ‘‘which of those facts

supported its finding of ‘entirely without color’ and

which supported its finding of ‘bad faith conduct,’ ’’

reviewing court considered various theories under

which facts could support both litigation misconduct

prongs).

We conclude that it is appropriate to remand this

case for further proceedings on the defendant’s motion

for sanctions and that such proceedings should be conducted by a new judge. At that time, the court is free

to consider postappeal matters that the plaintiff has

raised in this court regarding the defendant’s purported

judicial admission that the parties were mutually mis-
taken that the oral stipulation would provide the parties

with their intended benefits.17

The judgment of the Appellate Court is affirmed insofar as that court reversed the trial court’s finding of

contempt, remanded with direction to deny the defendant’s motion for contempt, and affirmed the trial

court’s rulings on postjudgment motions; the judgment

of the Appellate Court is reversed with respect to the

trial court’s ruling on the defendant’s motion for sanctions on the basis of litigation misconduct, the award

of attorney’s fees and expert fees is vacated, and the

case is remanded to the Appellate Court with direction

to remand the case to the trial court for further proceedings on the defendant’s motion for sanctions in accordance with this opinion.

In this opinion the other justices concurred.

1 Upon the termination of alimony payments, the defendant also was

obligated to pay the mortgage encumbering the marital residence until the

mortgage was paid in full.

2 The plaintiff has characterized the court’s ruling as resting on fraud

because the defendant had claimed that his earnings were expected to

decrease during the hearing on the motion to modify. The defendant disputes

this characterization, contending that he was unaware of his obligation to

disclose a pending offer of employment that had not been formally offered

and that the trial court made no express finding of fraud, just a violation

of the defendant’s duty to disclose. The basis of the ruling was not stated

on the record. Although the plaintiff cited this purported fraud as a basis

of an unclean hands defense to the defendant’s motion for contempt, the

trial court did not address this defense in its order finding the plaintiff in

contempt. In the absence of an articulation, which the plaintiff did not

request, we interpret that omission as an implicit rejection of that defense.

3 Roberts explained that the purpose of the special needs trust was to

keep the plaintiff’s income and assets below the threshold necessary to

qualify for government disability benefits.

4 The plaintiff contended that the defendant’s ability to invade the trust as

a residuary beneficiary and as a means of recovering disallowed deductions

rendered the trust invalid because the law requires the plaintiff to be the

sole beneficiary and the government provider of disability benefits to be

named as a beneficiary. She further contended that the provision making

the defendant a residuary beneficiary of the trust into which he was to

deposit the alimony payments prevented him from claiming those payments

as a deduction under tax law.

5 The plaintiff argued that the application of the provision that permitted

the defendant to recoup any tax deduction disallowed plus any penalties

assessed could result in the plaintiff’s receiving less than she had before

the modification, or even nothing.

6 The plaintiff’s motion was, as the trial court recognized, more comprehensive than a typical motion, and it provided legal analysis and authority in

support of its mistake of law and impossibility grounds. The defendant

contested the propriety of treating the submission as a hybrid motion and

memorandum of law, and pointed out that it did not provide legal analysis

for all of the plaintiff’s claims.

7 The same day as the hearing, the plaintiff filed a motion to dismiss

and/or to strike the defendant’s motion for an order approving his draft

stipulation, which was dated the day before the trial court presented them

with the written stipulation. In the plaintiff’s motion, she argued that the oral

stipulation was not viable because of the failure of the condition precedent

of obtaining a tax opinion that the alimony would be tax deductible under the

terms of the stipulation. Two months later, the defendant filed an objection,

challenging the motion on procedural, jurisdictional (mootness), and substantive grounds. The court thereafter denied the plaintiff’s motion.

8 Although not expressly stated, we interpret Greenberg’s characterization

of the payments as ‘‘gratuitous’’ to refer to the amount in excess of the

defendant’s obligation under the court’s orders in place before the February,

2014 stipulation was ordered.
9 Davis is the special needs trust lawyer who was designated as the plaintiff’s expert in support of her motion to open and vacate.

10 We concluded that an articulation was necessary not merely because

the court’s order failed to identify what acts provided the basis for the

finding of contempt. It also was necessary because the court indicated that

its decision rested on undesignated, ‘‘relevant portions’’ of the entire judicial

file for the protracted litigation in the case and because the amount of the

award and the court’s comments at the hearing focusing on the plaintiff’s

litigation efforts raised the distinct possibility that the court had rested the

award in part on litigation misconduct. Moreover, this is not a case that

could be conclusively resolved if we were to determine that there was one

proper basis for making an award because that determination could be

insufficient to address the open question of whether the amount of the

award is reasonable.

11 We will discuss these facts as they become relevant to the discussion

that follows.

12 The defendant conceded at oral argument before this court that a legal

opinion that the deductibility would be impacted if the alimony were

assigned to the trust would meet this obligation.

13 The thirteen page document, dated March 1, 2014, is stamped ‘‘Draft—

For Discussion Purposes Only.’’ It opines that payments by a former spouse

to a third party (i.e., the special needs trust) could qualify as tax deductible

alimony but that such payments would be disqualified if the payor (the

defendant) is a residuary beneficiary of the trust. The draft cites various

federal tax code provisions and related agency regulations/rulings, applicable case law, and a trust treatise in support of its opinion. It is unclear

whether the document’s stamp for ‘‘discussion purposes only’’ was related

to a footnote appended to the section heading entitled ‘‘Conclusion’’ that

stated: ‘‘The advice was not intended or written by the practitioner to be

used, and that it cannot be used by any taxpay[er], for the purpose of

avoiding penalties that may be imposed on the taxpay[er].’’ Comments from

Kweskin during the hearing on the motion for sanctions and for contempt

reflect that he had seen this opinion letter.

This opinion letter also was referenced in the plaintiff’s earlier filed motion

to open and vacate, which indicated that the opinion was ‘‘annexed’’ to that

motion. We did not find a copy of the opinion appended to this motion and

have no way of knowing whether it never was included or whether it was

included but became separated from the motion after it was filed.

We agree that the opinion letter was never submitted into evidence. When

Greenberg attempted to state the contents of the opinion letter at the November, 2014 hearing on the motion to open and vacate, the defendant objected.

The court, Heller, J., sustained the objection and noted that the plaintiff

could introduce the letter later. She did not do so in that proceeding. When

the location of the letter was raised at the subsequent contempt hearing, the

trial court, Tindill, J., effectively conveyed that the opinion was immaterial

because, even if it assumed that the letter existed, ‘‘[t]he problem with the

whole thing is that [the plaintiff] agreed to what was made a court order

and then she decided [that] she didn’t like the agreement.’’ Nonetheless, it

would have been the better practice for the plaintiff to formally submit this

document into evidence.

14 We observe that the trial court’s reliance on the absence of the accountant’s opinion from the record necessarily implies that it disagreed with the

defendant that the ‘‘legal opinion’’ required was one from an attorney. The

accountant’s opinion would otherwise be immaterial. The record does not

reflect the reason for the court’s disagreement. It may be that the court

concluded that the term ‘‘legal opinion’’ did not plainly and unambiguously

mean one from an attorney and reasonably could mean an opinion on tax

law from a professional qualified to provide that opinion for the purpose

for which it was given. That determination would have permitted the court

to consider Roberts’ statement when the oral stipulation was put on the

record, referring to the parties’ intention to seek advice from ‘‘a special

needs trust and a tax person.’’ See Afkari-Ahmadi v. Fotovat-Ahmadi, supra,

294 Conn. 390 (‘‘[b]ecause a stipulation is considered a contract, [o]ur interpretation of a separation agreement that is incorporated into a dissolution

decree is guided by the general principles governing the construction of

contracts’’ [internal quotation marks omitted]); see also Parisi v. Parisi,

supra, 315 Conn. 382–83 (agreement incorporated into dissolution judgment

is construed under contract principles, under which clear and unambiguous

language renders parties’ intent question of law, and extrinsic evidence is

admissible to explain ambiguity in instrument). Alternatively, the court may
have relied on estoppel. At the hearing on the defendant’s motion for order,

when the plaintiff first brought the accountant’s opinion to the court’s

attention, the defendant argued that the plaintiff had never provided him

with that opinion, as she was required to under the stipulation. This statement clearly implied that an opinion from an accountant could meet that

obligation. The plaintiff’s assumption that this was the case is reflected in

two court filings prior to the defendant’s moving to hold her in contempt.

See, e.g., Shanahan v. Dept. of Environmental Protection, 305 Conn. 681,

708, 47 A.3d 364 (2012) (‘‘[t]here are two essential elements to an estoppel—

the party must do or say something that is intended or calculated to induce

another to believe in the existence of certain facts and to act upon that

belief; and the other party, influenced thereby, must actually change his

position or do some act to his injury which he otherwise would not have

done’’ [internal quotation marks omitted]). Whether an accountant’s letter

is sufficient demonstrates an ambiguity, making contempt inappropriate. In

other words, it was a reasonable interpretation to believe that an accountant’s letter was enough.

15 The defendant did include in his allegations of fact that the trial court’s

memorandum of decision memorializing the oral stipulation ‘‘became necessary as a result of the plaintiff’s refusal jointly to submit in writing the terms

the parties had orally agreed to on February 19, 2014. However, the defendant

never claimed that the plaintiff’s conduct in this particular regard constituted contempt.

16 Certain comments by the court at the hearing on the motion for sanctions

imply that the court may have held this view, including the court’s complaint

that the plaintiff had accepted the $10,000 monthly alimony payments while

disputing the validity of the agreement. The implication is not a necessary

one, however, and we will not supply it by inference in the present context.

17 The plaintiff filed a motion for a supervisory order that informed us

that, after oral argument before this court, the defendant successfully moved

to open and vacate the order on which the contempt rested on the ground

of mutual mistake. She contends that the defendant’s position in the motion

was consistent with her position during litigation and that he should be

judicially estopped from claiming otherwise. In his motion to vacate, the

defendant admitted that the parties had mistakenly believed that the terms

of the oral stipulation would allow the tax deduction and would provide

the basis for a valid special needs trust, and contended that the parties

could have rectified these concerns by adding and deleting certain terms,

but the plaintiff would not agree to execute a trust that would afford him

the benefits intended.