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*********************************************** 
MICHAEL HALPERIN v. RONDA HALPERIN

(AC 40934)

Alvord, Elgo and Devlin, Js.

Syllabus

The plaintiff, whose marriage to the defendant previously had been dissolved, appealed to this court from the postjudgment order of the trial

court ordering him to include income derived from two entities, C

Co. and I Co., in the calculation of his unallocated support obligation.

Pursuant to a provision in the parties’ separation agreement, which was

incorporated into the dissolution judgment, the plaintiff was required

to pay the defendant unallocated support, which was to be calculated

using a decreasing percentage of the plaintiff’s gross base income and

quarterly bonuses over a twelve year schedule. That provision also

provided that income for purposes of the calculation was the parties’

respective total income that had ‘‘historically been listed’’ on line 22,

or the equivalent, of their joint 1040 federal tax returns, and expressly

included all employment, business and partnership income, but specifically excluded any income received by the plaintiff from patents or

inventions that he created or obtained. Following the dissolution of the

parties’ marriage in 2010, the plaintiff acquired ownership interests in

C Co. and I Co. Thereafter, the defendant filed an amended motion

for contempt, arguing that the plaintiff had underpaid her unallocated

support for the years 2010 through 2013. At the hearing on the motion,

the central issue before the trial court was whether, pursuant to the

unallocated support provision, income that the plaintiff had earned from

C Co. and I Co. and similar future income was to be included in the

calculation of the unallocated support. The trial court found that the

provision was ambiguous and, crediting the defendant’s testimony

regarding the meaning of the phrase ‘‘historically been listed’’ as used

in the provision, determined that the parties intended to include the

income at issue in the plaintiff’s total income for purposes of determining

his unallocated support obligation. Held that the plaintiff could not

prevail on his claim that the trial court improperly interpreted the subject

provision of the separation agreement in determining that income

received from C Co. and I Co. was included in the definition of total

income for purposes of calculating the plaintiff’s unallocated support

obligation: that court’s determination that the parties intended to include

the income at issue in the plaintiff’s total income for purposes of

determining his unallocated support obligation was not clearly erroneous, as the term ‘‘historically,’’ as used in the provision’s income definition, modified ‘‘total income,’’ which referenced income on line 22 of

form 1040, total income under the provision expressly included all

employment, business and partnership income, the plaintiff characterized his income from C Co. and I Co. as partnership income on his

federal tax returns and the plaintiff recognized that his profits from C

Co. were reflected on line 22 of form 1040, and the plaintiff’s contention

that the phrase ‘‘historically been listed’’ should be construed as referring

only to how he had historically earned income as a physician was

unavailing, as that construction would render the provision’s specific

exclusion of income derived from the plaintiff’s patents and inventions

superfluous; moreover, there was no merit to the plaintiff’s argument

that, because his interests in C Co. and I Co. were purchased with cash

assets awarded to him at the time of the dissolution, the income received

from his investment of the cash assets should not be redistributed again,

as his argument confused an award of assets with a support award

based on the income stream derived from an asset, and the cases relied

on by the plaintiff were distinguishable from the present case; furthermore, this court was not persuaded by the plaintiff’s argument that

equitable principles required that his income from C Co. and I Co. be

excluded from the calculation of unallocated support.

Argued November 13, 2019—officially released March 24, 2020

Procedural History
Action for the dissolution of a marriage, and for other

relief, brought to the Superior Court in the judicial district of New London at Norwich, where the court,

Boland, J., rendered judgment dissolving the marriage

and granting certain other relief in accordance with the

parties’ separation agreement; thereafter, the defendant

filed a motion for contempt; subsequently, the court,

Carbonneau, J., issued an order regarding the plaintiff’s

unallocated support obligation, and the plaintiff

appealed to this court. Affirmed.

Cody A. Layton, with whom, on the brief, was Drzislav Coric, for the appellant (plaintiff).

Campbell D. Barrett, with whom, on the brief, was

Johanna S. Katz, for the appellee (defendant).
Opinion

ALVORD, J. In this marital dissolution action, the

plaintiff, Michael Halperin, appeals from the trial court’s

postdissolution order resolving the motion for contempt filed by the defendant, Ronda Halperin. On

appeal, the plaintiff claims that the court erred in interpreting the provision of the parties’ separation agreement governing unallocated alimony and child support,

namely, that income derived from certain investments

made by the plaintiff is includable in his total income

for purposes of determining his unallocated support

obligation. We affirm the judgment of the trial court.

The record reveals the following facts and procedural

history. The parties were divorced on March 11, 2010.

The dissolution judgment incorporated by reference a

separation agreement executed by the parties on the

same date. Section 8 of the separation agreement1 governs unallocated support and requires the plaintiff to

pay to the defendant a decreasing percentage of his

‘‘gross base income’’ and ‘‘quarterly bonuses’’ over a

twelve year schedule ending on March 11, 2022. Section

8 further provides: ‘‘Income for purposes of this calculation shall be the parties’ respective ‘total income’ that

has historically been listed on line 22 (or the equivalent)

of their joint 1040 federal tax returns. This shall include

all employment, business, partnership, consulting or

real estate income, whether received in cash or not,

but shall specifically exclude all interest, dividend and

capital gains income realized from assets divided as

part of the property distribution component of this dissolution [j]udgment and any income received by the

plaintiff . . . as the result of patents or inventions

which he has created and obtained. Capital losses, for

whatever purpose, shall not serve as a reduction of a

[party’s] income. By way of example, if the numbers

contained on the parties’ joint 2008 [tax] return were

used as part of his calculus, the plaintiff’s unallocated

support obligation would be based on $1,205,113.00 in

income (the amount listed on line 22 ($1,216,295.00)

plus capital loss ($3,000.00) minus interest $11,527.00)

minus ordinary dividends ($2,655.00)).’’

Section 12 (a) of the separation agreement provides,

inter alia, for the sale of certain real property owned

by the parties. Under that provision, the plaintiff was

entitled to the first $2,105,000 from any sale or sales in

exchange for the defendant’s receiving, at the time of

the dissolution, certain other real property owned by

the parties. After the first $2,105,000, the parties were

to divide the remaining net proceeds of any sale or

sales on an equal basis.

After preparing the separation agreement, the parties,

both represented by counsel, appeared before the court,

Boland, J. The plaintiff and the defendant were both

canvassed by their counsel.2 Following the individual
canvasses by counsel, the court sought clarification,

‘‘given the complexity of th[e] agreement.’’ The following colloquy occurred:

‘‘The Court: [A]s to the total income which is the

basis for calculation of how much the plaintiff is going

to pay to the defendant, I note that you specify line 22

on federal form 1040. I don’t have that form in front of

me. My recollection is that that line is distinct from the

adjusted gross income line—which is around line 31 or

something like that—and the difference between the

two is the subtraction of certain items such as a taxpayer’s contributions to a 401 (k) plan, cost of selfemployed health insurance, and other items. Are you

with me so far?

‘‘[The Defendant’s Counsel]: Yes.

‘‘The Court: And so, I just want to clarify that the

understanding of both parties is that those items are

to be disregarded with respect to the alimony and child

support payments. Correct?

‘‘[The Plaintiff’s Counsel]: That’s the—that’s your

understanding?

‘‘[The Plaintiff]: Yes.

‘‘[The Plaintiff’s Counsel]: I’ve explained that to you.

‘‘The Court: Okay.

‘‘[The Defendant’s Counsel]: And that’s your understanding as well, ma’am?

‘‘[The Defendant]: Yes.

‘‘The Court: And that’s set forth in the agreement.

The only reason that I raise it as an issue is that sometimes an agreement such as this will refer to adjusted

gross income, and I wanted to make sure that this was

deliberate and not accidental.’’

The court stated that it had examined the agreement,

found it fair and equitable, and incorporated it into the

divorce decree.

On February 26, 2014, the defendant filed a motion

for contempt, arguing that the plaintiff had underpaid

unallocated support for the years 2010 through 2012.

On June 12, 2014, the defendant filed an amended

motion for contempt, arguing that the plaintiff also had

underpaid unallocated support for 2013. The parties

appeared before the court, Carbonneau, J., on June 20

and September 24, 2014. The central dispute as framed

by counsel involved the interpretation of the term ‘‘historically’’ as used in § 8 of the separation agreement.3

Specifically, following the dissolution of the parties’

marriage, the plaintiff had acquired ownership interests

in two entities, Constitution Surgery Center East

(CSCE)4 and International Spine and Orthopedic Institute (ISOI). The issue before the court was whether

profits received from the plaintiff’s ownership interest
in such entities were to be included in the unallocated

support calculation. The parties filed briefs and reply

briefs in December, 2014.

On December 19, 2014, the court sua sponte ordered

the matter returned to court for ‘‘a further evidentiary

hearing concerning latent ambiguities in the parties’

[separation] agreement . . . .’’ Specifically, the court

requested evidence regarding ‘‘whether the language of

the [separation agreement] is plain and unambiguous

and if the meaning is clear.’’ On March 30 and August

28, 2015, the parties appeared before the court and

offered testimony as to their understanding of the separation agreement provision at issue. The parties filed

supplemental briefs on September 30, 2015, and the

plaintiff filed a reply brief on October 7, 2015.

On January 20, 2016, the court issued a memorandum

of decision. It found, in relevant part, as follows: ‘‘[The]

plaintiff is a successful spine surgeon. He is inventive,

innovative and entrepreneurial. [The] defendant is an

attorney, but she does not now, and has not practiced

law for some time. The court observed these parties to

be highly educated, articulate, thoughtful and discerning individuals. . . . During the marriage [the] plaintiff

created a ‘TFAS’ device to be implanted in a person’s

back. He received income from Globus Corporation for

this implant, first through Norwich Orthopedic Group

and later directly. He also received consulting income

for teaching other doctors how to use and implant the

device. . . . The parties declared income or losses

from S corporations and partnerships during their marriage. [The] plaintiff continued to report such income

after the marriage through 2013. . . . [The] defendant

kept two real properties from the marital estate. To

compensate [the] plaintiff for this, he received the first

$2.1 million from the sale of other marital real estate.

. . . [The] plaintiff placed these proceeds in a [new]

Fidelity . . . account that he [opened after] the

divorce. . . . He used a portion of this money to buy

a house for $950,000. From February, 2011 to the end

of 2013, he made several purchases totaling $558,488

from the Fidelity account to buy a 10.6222 [percent]

interest in [CSCE] and a 1 [percent] interest in [ISOI].

. . . ISOI has yet to generate significant profit, but, in

2011, his interest in [CSCE] earned [the] plaintiff $2357;

in 2012, $69,923; and in 2013, $425,467. . . . [The] plaintiff reported this income on ‘[s]chedule E’ of his federal

tax returns. . . . The [Internal Revenue Service (IRS)]

provides different schedules to set out the details of

different types of income. These schedules are

appended to the standard 1040 form when required.

Schedule B is used for taxable interest and ordinary

dividends; [s]chedule C for business income or loss;

[and] [s]chedule D for capital gain or loss. Schedule E

is used to list supplemental income and loss from rental

real estate, royalties, partnerships, S corporations,

estates, trusts, and the like. . . . [The] plaintiff did not
include money he earned from [CSCE] or ISOI in this

calculation of unallocated support owed to [the defendant] in 2012 or 2013 under the terms of the agreement.’’

(Footnotes omitted.)

The court declined to find the plaintiff in contempt,

on the basis that any noncompliance with the dissolution judgment was not wilful. Exercising its broad discretion to make whole a party who has suffered as a

result of another party’s failure to comply with a court

order, however, the court ordered the plaintiff to

include within the calculation of the defendant’s unallocated support the income he earned and now earns

from CSCE and ISOI and similar future income during

the contracted support term.

The court addressed each of the plaintiff’s arguments

in turn. It first rejected the plaintiff’s argument premised

on fairness; see Dan v. Dan, 315 Conn. 1, 105 A.3d 118

(2014); as misplaced, stating that ‘‘[w]hile it might not

be ‘fair’ for an ex-spouse to share in the former spouse’s

postjudgment income that the spouse did not in any

way help create, that spouse should not be deprived of

the benefit of an insightful prejudgment bargain even

as it extends to such income.’’ (Emphasis in original.)

The court likewise disagreed with the plaintiff’s argument that the separation agreement excludes from the

unallocated support calculation any partnership income

earned from CSCE and ISOI because his interests in

those entities are a conversion of the assets he received

in the dissolution property settlement. The court, noting

that the plaintiff himself had characterized what he had

received from CSCE and ISOI as ‘‘partnership income’’

on schedule E of his federal income tax returns, concluded that the income received from CSCE and ISOI

is not a conversion of marital assets.5

Turning to the central issue, the court credited the

defendant’s testimony and explanation of the meaning

of the phrase ‘‘historically been listed,’’ which it found

‘‘was intended by the parties to fix in time the categories

of income includable in the calculation of [the] plaintiff’s unallocated support obligation to [the] defendant

and their children.’’ Specifically, the court accepted the

defendant’s explanation that income ‘‘correspond[ed]

to the categories used by the IRS to make up line 22

of the 1040 form.’’ In accepting this explanation, the

court noted that ‘‘[f]uture changes in tax law or IRS

Form 1040 could fundamentally alter the interpretation

of the agreement [and] undo their intentions.’’ The court

rejected the plaintiff’s construction of ‘‘historically been

listed,’’ which was that the term referred to ‘‘the specific

sources and/or types of income,’’ and ‘‘clearly show[ed]

the parties looking backward in time, not forward, for

sources and/or types [of income] to be included in the

income calculation.’’

Lastly, the court determined that the defendant was

entitled to statutory interest. Because the parties had
not submitted any evidence as to how the defendant

would have used, invested, or conserved the funds owed

to her, the court declined to specify a rate of interest.

It instead ordered the parties to calculate an appropriate

award of interest and to submit any resulting dispute to

the court for determination, if necessary. Subsequently,

the parties agreed to a 5 percent interest rate, and the

court adopted the defendant’s calculation of the unallocated support due to her from the plaintiff. This

appeal followed.

On appeal, the plaintiff claims that the court improperly interpreted the separation agreement to determine

that income received from CSCE and ISOI is includable

within the definition of total income for purposes of

calculating the plaintiff’s unallocated support obligation. In support of this claim, the plaintiff argues that

(1) the separation agreement unambiguously excludes

income from CSCE and ISOI from the defendant’s unallocated support, (2) the plaintiff’s conversion of cash

assets awarded at the time of dissolution to shares of

a surgery center does not create income for purposes

of calculating unallocated support, and (3) equitable

principles require that the plaintiff’s income from CSCE

and ISOI be excluded from the unallocated support

calculation.6 We address each argument in turn.

The plaintiff argues that the separation agreement

‘‘is unambiguous to the extent income from CSCE and

ISOI is excluded from [the] defendant’s unallocated

support.’’ We disagree.

‘‘It is well established that a separation agreement

that has been incorporated into a dissolution decree

and its resulting judgment must be regarded as a contract and construed in accordance with the general

principles governing contracts. . . . When construing

a contract, we seek to determine the intent of the parties

from the language used interpreted in the light of the

situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the

parties is to be ascertained by a fair and reasonable

construction of the written words and . . . the language used must be accorded its common, natural, and

ordinary meaning and usage where it can be sensibly

applied to the subject matter of the contract. . . .

When only one interpretation of a contract is possible,

the court need not look outside the four corners of the

contract. . . . Extrinsic evidence is always admissible,

however, to explain an ambiguity appearing in the

instrument. . . . When the language of a contract is

ambiguous, the determination of the parties’ intent is

a question of fact. . . . When the language is clear and

unambiguous, however, the contract must be given

effect according to its terms, and the determination of

the parties’ intent is a question of law. . . .

‘‘The threshold determination in the construction of a

separation agreement, therefore, is whether, examining
the relevant provision in light of the context of the

situation, the provision at issue is clear and unambiguous, which is a question of law over which our review

is plenary. . . . Contract language is unambiguous

when it has a definite and precise meaning . . . concerning which there is no reasonable basis for a difference of opinion . . . . The proper inquiry focuses on

whether the agreement on its face is reasonably susceptible of more than one interpretation. . . . It must be

noted, however, that the mere fact that the parties

advance different interpretations of the language in

question does not necessitate a conclusion that the

language is ambiguous. . . . A court will not torture

words to import ambiguity where the ordinary meaning

leaves no room for ambiguity . . . . Similarly, any

ambiguity in a contract must emanate from the language

used in the contract rather than from one party’s subjective perception of the terms. . . . Finally, in construing

contracts, we give effect to all the language included

therein, as the law of contract interpretation . . . militates against interpreting a contract in a way that renders a provision superfluous.’’ (Citations omitted;

emphasis in original; internal quotation marks omitted.)

Isham v. Isham, 292 Conn. 170, 180–82, 972 A.2d 228

(2009).

In the present case, after initially declining to hear

evidence regarding the parties’ understanding of the

disputed term, the court sua sponte opened the evidence to accept extrinsic evidence. It thereafter considered the extrinsic evidence, including the parties’ testimony, in interpreting the separation agreement and

made factual findings regarding the parties’ intent.

Thus, it is apparent that the court determined that the

disputed provision was ambiguous, a conclusion with

which we agree. Both parties offer plausible interpretations of the disputed provision. See, e.g., Russell v.

Russell, 95 Conn. App. 219, 222–23, 895 A.2d 862 (2006)

(parties’ intent not clear and certain from language itself

where parties used term ‘‘expenses . . . for completion’’ of son’s treatment at medical facility and included

another provision referencing payment of ‘‘all college

expenses’’ of other son (internal quotation marks omitted)). Accordingly, the court properly considered

extrinsic evidence to ascertain the intent of the parties

as expressed in the language of the separation

agreement.

Because we have determined that the relevant contract language is ambiguous, ‘‘[t]he determination of

the intent of the parties to a contract . . . is a question

of fact subject to review under the clearly erroneous

standard. . . . This court has stated frequently that [a]

finding of fact is clearly erroneous when there is no

evidence in the record to support it . . . or when

although there is evidence in the record to support it,

the reviewing court on the entire evidence is left with

the definite and firm conviction that a mistake has been
committed. . . . While conducting our review, we

properly afford the court’s findings a great deal of deference because it is in the unique [position] to view the

evidence presented in a totality of circumstances, i.e.,

including its observations of the demeanor and conduct

of the witnesses and parties, which is not fully reflected

in the cold, printed record which is available to us.’’

(Citation omitted; internal quotation marks omitted.)

Bijur v. Bijur, 79 Conn. App. 752, 761–62, 831 A.2d

824 (2003).

In construing the phrase ‘‘historically been listed,’’ the

court stated that the parties’ predissolution tax returns

showed income or losses from S corporations and partnerships. Because this income historically had been

listed, it reasoned that future partnership income

should be included in the unallocated support calculation, with the exception of certain categories of income

the parties had specifically excluded from the definition

of total income in the separation agreement. The court

referenced the exclusion for ‘‘any income received by

the plaintiff . . . as the result of patents or inventions

which he has created and obtained.’’ In the absence of

this exclusion, the court found, postdissolution patent

and invention income would be includable in the plaintiff’s income for purposes of determining his unallocated support obligation. Additionally, the absence of

an exclusion that would encompass the CSCE and ISOI

income supported the determination that the parties

intended such income to be included in the unallocated

support calculation.

The court further found that the ‘‘parties purposely

and specifically selected line 22 of IRS Form 1040 as a

starting point for their definition of income,’’ which

finding is supported by the parties’ responses to that

effect during the canvass at the time of the dissolution.

The court, recognizing that ‘‘[f]uture changes in tax

law or IRS Form 1040 could fundamentally alter the

interpretation of the agreement and undo their intentions,’’ found that the phrases ‘‘historically been listed’’

and ‘‘or the equivalent’’ ‘‘both seek to fix the agreement’s

definition of income in time to make certain that their

obligations and expectation of each other would not

significantly change during the term of the agreement.’’7

Examining the parties’ tax returns in evidence, the

court noted that IRS Form 1040 contained ‘‘seventeen

separate lines including alphabetical subdivisions (8a

and 8b, for example) that precede line 22. Each line is

for different categories of income, such as taxable and

nontaxable interest (lines 8a and 8b), ordinary and qualified dividends (lines 9a and 9b), capital gain or loss

(line 13). There is a separate line for business income

or loss (line 12) and another for partnership income

(line 17). Line 22 is the sum of lines 7 through 21. It

represents the ‘total income’ of the filer from all sources

listed by the IRS.
‘‘ ‘Total income’ in the operative sentence of the [separation] agreement refers to line 22. It is no coincidence

that the exclusions from income in the parties’ agreement correspond to specific earlier lines in the [IRS

Form] 1040 like interest, capital gains and dividends.

It makes no sense that [the] plaintiff would carve out

these specific exclusions from his income—including

future patents and inventions—and then rely on the

broad and vague phrase ‘historically been listed’ to

shield any other future income.’’8 Accordingly, the court

credited the defendant’s testimony regarding the meaning of the phrase ‘‘historically been listed,’’ which it

found ‘‘was intended by the parties to fix in time the

categories of income includable in the calculation of

[the] plaintiff’s unallocated support obligation to [the]

defendant and their children.’’9

We conclude that the court’s determination that the

parties intended to include the income at issue in the

plaintiff’s total income for purposes of determining his

unallocated support obligation is not clearly erroneous.

‘‘Historically,’’ as used in the income definition modifies

‘‘total income,’’ which references income on line 22 of

IRS Form 1040. Further support for this conclusion is

found in the inclusions and exclusions that immediately

follow the disputed phrase. Notably, total income under

the separation agreement expressly includes ‘‘all

employment, business, [and] partnership . . . income

. . . .’’ (Emphasis added.) As the trial court found, the

plaintiff characterized his income from CSCE and ISOI

as partnership income on schedule E of his federal tax

returns, and the plaintiff himself recognizes that his

profits from CSCE are reflected on line 22 of IRS

Form 1040.

The plaintiff argues that ‘‘a fair reading of [§] 8 [of

the separation agreement] as a whole requires that the

income used to calculate [the] defendant’s unallocated

support under the agreement can only be viewed in a

context that is retrospective.’’ This retrospective view,

according to the plaintiff, encompassed how ‘‘the plaintiff ‘historically’ earned money as a physician,’’ i.e., his

biweekly salary and quarterly bonuses. Total income

under the agreement, however, expressly excludes ‘‘all

interest, dividend and capital gains income realized

from assets divided as part of the property distribution

component of this dissolution [j]udgment and any

income received by the plaintiff . . . as the result of

patents or inventions which he has created and

obtained.’’ Were the plaintiff’s construction of the disputed provision to be correct, namely, that the phrase

‘‘historically been listed’’ referred only to how the plaintiff had historically earned money as a physician, this

exclusion would be superfluous. ‘‘[I]n construing contracts, we give effect to all the language included

therein, as the law of contract interpretation . . . militates against interpreting a contract in a way that ren-
ders a provision superfluous.’’ (Internal quotation

marks omitted.) Isham v. Isham, supra, 292 Conn. 182.

The plaintiff points to other provisions of § 8 of the

separation agreement that he contends support his

interpretation. First, he points to the statement that,

‘‘[h]istorically, the plaintiff has been paid by way of

a weekly/biweekly draw and periodic bonuses.’’ That

language, however, is positioned within a paragraph

discussing the timing and duration of the support payments. Specifically, the statement directly follows language stating that ‘‘[t]he plaintiff shall pay his obligation

on a weekly or biweekly basis, via direct deposit,’’ and

immediately precedes language stating that ‘‘[t]he

defendant shall be paid her percentage share of the

plaintiff’s gross income at the time the income is

received by the plaintiff.’’ Accordingly, we do not interpret this language as controlling the sources of income

from which the support is calculated. Second, the plaintiff directs this court’s attention to language in § 8 that

provides for the plaintiff’s payment of decreasing percentages of his ‘‘gross base income,’’ ‘‘base bi-weekly

gross income,’’ ‘‘quarterly bonuses,’’ and ‘‘quarterly

gross bonuses.’’ Although this language appears to

focus on the plaintiff’s earnings as a physician, we cannot conclude that it amends the parties’ express definition of total income for purposes of determining his

unallocated support obligation.

The plaintiff next argues that his interests in CSCE

and ISOI were purchased using cash assets awarded to

him at the time of the dissolution and, therefore, the

income received from his investment of the cash assets

‘‘should not be redistributed yet again.’’ In support of

his argument, he cites Gay v. Gay, 266 Conn. 641, 835

A.2d 1 (2003), Schorsch v. Schorsch, 53 Conn. App. 378,

731 A.2d 330 (1999), and Denley v. Denley, 38 Conn.

App. 349, 661 A.2d 628 (1995), a line of cases that he

concedes is ‘‘factually distinguishable’’ but that he suggests evidences a ‘‘modern trend’’ in our courts of reluctance to ‘‘designate as income for purposes of support,

funds received as a result of the conversion of assets

awarded at the time of the dissolution.’’ The defendant

responds that ‘‘[t]he plaintiff’s argument confuses an

award of assets with a support award based on the

income stream derived from an asset.’’ We agree with

the defendant.

An analysis of the cases relied on by the plaintiff

leads us to conclude that the holdings in those cases

are inapplicable here. The plaintiff cites Schorsch v.

Schorsch, supra, 53 Conn. App. 380, in which the defendant sought a postdissolution modification of his alimony obligation. The issue on appeal was whether the

trial court improperly had included in the calculation

of the defendant’s monthly income certain principal

payments that he was receiving pursuant to a purchase

money mortgage that he held on real property that had
been awarded to him in the dissolution decree. Id., 384.

This court held that the trial court improperly included

as income the principal portion of the mortgage payment generated from the sale because ‘‘[t]he mere

exchange of an asset awarded as property in a dissolution decree, for cash, the liquid form of the asset, does

not transform the property into income.’’ (Internal quotation marks omitted.) Id., 385–86. The court in

Schorsch addressed only the principal portion of the

mortgage payments, which constituted the liquid form

of the asset the defendant received in the dissolution

decree, and the interest portion of the payments were

not at issue.

In Denley v. Denley, supra, 38 Conn. App. 350, the

plaintiff sought a postjudgment modification of alimony, arguing that, because he had lost an important

client, his income had decreased substantially. The trial

court concluded that the plaintiff had not met his burden of proving a substantial change in circumstances.

Id. In determining whether the plaintiff’s income had

decreased substantially, the court included in income

the profit that the plaintiff had received through the

redemption of stock options that had been awarded to

him as property in the dissolution decree. Id., 350, 353.

On appeal, this court agreed with the plaintiff that,

‘‘because he was awarded the stock options as property

in the dissolution decree, any money that he received

from the exercise of those stock options was simply

a conversion of an asset and should not have been

considered income by the trial court for purposes of

assessing whether there had been a substantial change

in circumstances.’’ Id., 353. This court concluded that

the trial court should not have included the profit that

the plaintiff generated by exercising his stock options

in determining whether there had been a substantial

change of circumstances because the exercise of the

stock options resulted in a conversion of the asset to

cash and did not transform the property into income. Id.

In Gay v. Gay, supra, 266 Conn. 642, our Supreme

Court considered whether the trial court properly

ordered a modification in alimony payments based in

part on the court’s determination that capital gains realized by the plaintiff from the sale of assets constituted

income. Our Supreme Court concluded that ‘‘capital

gains are not income for purposes of modification of

an order for continuing financial support if those gains

do not constitute a steady stream of revenue. This is

true without regard to whether the assets from which

those gains are derived were acquired before or after

the dissolution.’’ Id., 647–48. Underlying this conclusion

was the court’s recognition that, ‘‘[a]t least where, as

is generally the case, capital gains do not represent a

steady stream of revenue, the fact that a party has

enjoyed such gains in a particular year does not provide

a court with an adequate basis for assessing that party’s

long-term financial needs or resources.’’ (Footnote
omitted.) Id., 647. It found persuasive Judge Schaller’s

reasoning expressed in his dissenting opinion in the

Appellate Court, which stated that ‘‘a conversion of an

asset from one form to another does not constitute the

creation of income. Implicit in this conclusion is the

underlying concept that the growth in value of the asset

distributed at dissolution is not income when it is converted to another form. Rather, the growth, and

resulting cash value when converted, simply represents

the accrual in value of that asset itself. In other words,

the category the item falls into, namely, either capital

asset or income, does not change because the asset has

appreciated in value and then is converted as a matter

of form.’’ (Internal quotation marks omitted.) Id.; see

Gay v. Gay, 70 Conn. App. 772, 788–89, 800 A.2d 1231

(2002) (Schaller, J., dissenting).

Each of the cases relied on by the plaintiff is distinguishable from the present case. Schorsch and Denley

both involved the conversion of assets awarded in a

dissolution to cash. In the present case, the defendant

is not seeking a portion of the plaintiff’s ownership

interest in CSCE and ISOI but, rather, seeks a portion

of the income stream generated by those ownership

interests, which, pursuant to the terms of the separation

agreement, is required to be included as total income for

the purposes of calculating the plaintiff’s unallocated

support obligation. Gay is likewise inapplicable, given

that it addressed the question of whether capital gains,

which did not constitute a steady stream of revenue,

constituted income for purposes of alimony modification. In the present case, the court properly found that

the plaintiff’s income received from CSCE and ISOI was

not a conversion of marital assets and was not excluded

from total income under the parties’ separation agreement. In support of this conclusion, the court found

that the income was ‘‘something more and different

from the original asset, the ‘converted’ asset, interest,

dividends or capital gains.’’ We agree. Accordingly, the

plaintiff’s argument fails.

The plaintiff’s final argument on appeal is one resting

on equitable principles. He maintains that ‘‘the court

should be mindful that the cash assets the plaintiff

invested in CSCE are net, after tax, cash assets that he

has from the property distributed to him as part of his

marital dissolution property settlement and/or yearly

postdissolution postdistribution property settlement

(net, after tax, cash assets after he has made his required

unallocated support payments).’’ He argues that the

general risks accompanying investments ‘‘become compounded if [the] plaintiff is required to give part of his

return to [the] defendant, especially if that is before he

recoups his net, after tax, cash assets utilized in the

investment.’’ He also points to the separation agreement’s provision that ‘‘[c]apital losses, for whatever

purpose, shall not serve as a reduction of a parties’

income,’’ in support of his argument that it is ‘‘unques-
tionably unjust that [the] defendant could be allowed

to sit back, completely insulated from any risk, and

profit while [the] plaintiff is the only one who takes on

any risk with his investments.’’

The plaintiff, recognizing that Dan v. Dan, supra, 315

Conn. 1, is distinct because it involves modification of

alimony, nevertheless contends that the principles and

logic of that decision apply. He points to language from

Dan stating that, ‘‘when the sole change in circumstances is an increase in the income of the supporting

spouse, and when the initial award was and continues

to be sufficient to fulfill the intended purpose of that

award, we can conceive of no reason why the supported

spouse, whose marriage to the supporting spouse has

ended and who no longer contributes anything to the

supporting spouse’s income earning efforts, should be

entitled to share in an improved standard of living that

is solely the result of the supporting spouse’s efforts.’’

(Emphasis in original.) Id., 14–15. Our Supreme Court

held that, in the absence of certain exceptional circumstances, an increase in a supporting spouse’s income,

standing alone, will not justify the granting of a motion

to modify an alimony award. Id., 4, 10.

The guidance of Dan is inapplicable. The present

case does not involve a party seeking to modify an

alimony award on the basis that the supporting spouse’s

income has increased. Rather, the question in the present case is whether the plaintiff’s income from CSCE

and ISOI is includable in the plaintiff’s income for purposes of determining his unallocated support obligation

pursuant to the terms of the separation agreement.

Moreover, ‘‘[i]t is hornbook law that courts do not

rewrite contracts for parties. . . . [A] court simply cannot disregard the words used by the parties or revise,

add to, or create a new agreement.’’ (Internal quotation

marks omitted.) Hammond v. Hammond, 145 Conn.

App. 607, 612–13, 76 A.3d 688 (2013). As the trial court

stated in the present case, ‘‘[the] plaintiff may have

been under a great deal of pressure to settle, and he

may not now like the deal he struck with [the] defendant

over [five] years ago, but she is entitled to the benefit

of her bargain. The court cannot and will not undo or

rewrite their agreement with the benefit of hindsight.’’

We conclude that the court properly determined that,

pursuant to the separation agreement, the plaintiff’s

income received from CSCE and ISOI was required to

be included in the plaintiff’s total income for purposes

of calculating his unallocated support obligation.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Section 8 of the separation agreement provides in relevant part: ‘‘Unallocated Support: The plaintiff husband shall pay the defendant wife unallocated

support per the following:

• For the time period commencing on the date of Judgment and continuing

until 8/11/12, the plaintiff shall pay the following:

i. An amount equal to 38% of his gross base income in a manner as
defined infra.

ii. An amount equivalent to 38% of his quarterly bonuses payable as

described infra.

• For the time period commencing on 8/11/12 and continuing until 5/11/21,

the plaintiff shall pay the following:

i. An amount equal to 32.5% of his gross base income payable as

described infra.

ii. An amount equivalent to 32.5% of his quarterly bonuses payable upon

receipt as described infra.

• For the time period commencing on 5/11/21 and continuing until March

11, 2022, the plaintiff shall pay the following:

i. 25% of his base bi-weekly gross income payable as set forth infra.

ii. 25% of his quarterly gross bonuses payable as described infra.

• For federal and state income tax purposes, the unallocated support shall

be deductible to the plaintiff and included as income for the defendant.

• Income for purposes of this calculation shall be the parties’ respective

‘total income’ that has historically been listed on line 22 (or the equivalent)

of their joint 1040 federal tax returns. This shall include all employment,

business, partnership, consulting or real estate income, whether received

in cash or not, but shall specifically exclude all interest, dividend and

capital gains income realized from assets divided as part of the property

distribution component of this dissolution Judgment and any income

received by the plaintiff husband as the result of patents or inventions

which he has created and obtained. Capital losses, for whatever purpose,

shall not serve as a reduction of a parties’ income. By way of example,

if the numbers contained on the parties’ joint 2008 return were used as

part of his calculus, the plaintiff’s unallocated support obligation would

be based on $1,205,113.00 in income (the amount listed on line 22

($1,216,295,00) plus capital loss ($3,000.00) minus interest $11,527.00)

minus ordinary dividends ($2,655.00)). In the event that the plaintiff’s

employment income is replaced or supplemented by disability insurance

payments, those disability insurance payments shall be considered income

for purposes of the plaintiff’s support obligation(s). This disability provision shall not prevent the plaintiff from seeking a modification of the

support orders.

• In the event that the plaintiff husband does not receive a bonus in any

year in which he has a support obligation, and has received two bonuses

in either the immediately preceding or immediately subsequent year, the

plaintiff agrees to include one of said bonuses in each year for purposes

of establishing and calculating his support obligation(s).

• The plaintiff husband shall take no action for purposes of defeating the

defendant wife’s unallocated support, and, shall take no action to reduce,

divert, or defer income or increase business expenses or deductions for

the purpose of reducing his support obligation to the defendant wife

except in the ordinary and reasonable course of business. Without limitation, except as aforestated, items which are taxable to the plaintiff husband

because he receives a benefit therefrom shall be included, to the extent

they are taxable, for purposes of determining his income.

• For so long as the plaintiff husband has a support obligation hereunder,

the parties shall exchange complete individual year-end pay stubs and

complete state and federal tax returns (including all schedules, W2, K1

and 1099 forms and the like) that the parties file individually or that is

filed by any entity in which the parties’ possess an ownership interest on

a yearly basis within 14 days of filing.

• The unallocated order shall terminate upon the death of either party and

shall terminate upon the remarriage of the defendant wife whereupon the

parties shall determine the amount of child support to be paid by the

plaintiff husband to the defendant wife for the support of each of the

minor children until each child attains the age of 18, graduates from high

school, whichever later occurs, but in no event beyond age 19. In the

event they are unable to agree, the amount of such child support payments

shall be determined by a court of competent jurisdiction. Said amount

shall be paid retroactive to the date of the termination of unallocated

alimony and child support. The award shall be further be subject to

modifications, suspensions or termination pursuant to Conn. Gen. Statute

Sec. 46b-86(b), in the event the defendant cohabitates as contemplated

by the statute and its attending decisional law.

• The plaintiff’s unallocated obligation shall have a twelve year term and

shall be non-modifiable as to duration. The term shall commence on the

date of Judgment and shall terminate on the twelve year anniversary of
that date. The plaintiff shall pay his obligation on a weekly or biweekly

basis, via direct deposit. Historically, the plaintiff has been paid by way

of a weekly/biweekly draw and periodic bonuses. The defendant shall be

paid her percentage share of the plaintiff’s gross income at the time the

income is received by the plaintiff. In other words, the defendant shall

receive a percentage of the draw as well as a percentage of any bonus

payment. All payments shall be received by the defendant wife within

seven days of receipt of said compensation by the plaintiff husband.

• The defendant wife shall have a safe harbor to earn up to $50,000.00 per

year before the plaintiff husband shall have the right to file a motion for

downward modification of his support obligation.

* * *

• The plaintiff husband shall provide wife with copies of his quarterly pay

statements for the period ending March 30th, June 30th, September 30th

and December 31st each year, all W-2’s, K-1’s, 1099’s from the entities

which employ him upon receipt as soon as they are available. The defendant wife shall contemporaneously provide copies of her pay stubs to

the plaintiff husband on a quarterly basis. The parties shall review their

financial information on or before March 31st or sooner availability of

records each year to verify that the plaintiff husband paid alimony in

accordance with this Agreement. The parties agree that an accountant

designated by the defendant wife, shall audit, at the wife’s expense, the

above documents to determine if the defendant wife has received the

monies due her from the plaintiff husband in accordance with the terms

of this Agreement. If the plaintiff husband disagrees with the defendant

wife’s auditor, he shall have the right to choose his own auditor to verify

the amount of alimony payable, at his expense.’’

2 The plaintiff’s counsel asked the plaintiff: ‘‘And we’ve described in some

detail the definition of income. And that would be what you’ve historically

listed on line 22 or the equivalent on your joint 1040 tax returns; and that’s

all your employment, business, partnership, consulting, or real estate

income, no matter how—what form that comes in. And—but it will exclude

any interest, dividends, gains that you receive from assets as part of this

property settlement. And it will also not include any income received as a

result of patents and inventions which you have created and obtained.

Correct?’’ The plaintiff responded: ‘‘Yes.’’

3 Although both parties testified, the defendant objected to questioning

regarding the plaintiff’s understanding of the meaning of the word ‘‘historical,’’ as used in the income definition provision of the separation agreement.

The court sustained the objection on the basis that it had not yet found

that the language of the separation agreement was unclear. The court took

judicial notice, however, of the March 11, 2010 canvass before Judge Boland.

4 The trial court identified CSCE as Constitution East Surgical Center and

noted that it previously had been known as Constitution Eye Surgical Center.

The plaintiff, in his appellate brief, identifies the entity as Constitution

Surgery Center East, and we use that name for purposes of this opinion.

5 The plaintiff also had argued that inclusion of CSCE and ISOI income

would result in ‘‘double-dipping,’’ in that he had used assets awarded to

him in the separation agreement to purchase his interests in CSCE and ISOI

and that including income from those interests to calculate the unallocated

support would be counting the same basis twice. The court rejected this

argument, stating: ‘‘This would be so if [the] defendant claimed a portion

of the equity [the] plaintiff holds in these companies. She does not. Her

claim is only to the partnership income they generate. This is a new, separate

basis from the asset awarded to [the] plaintiff at the time of the dissolution

or purchased by him with such assets afterward.’’

6 The plaintiff also argues that there was never a ‘‘meeting of the minds’’

regarding § 8 of the separation agreement. He emphasizes his testimony,

which he describes as ‘‘undoubtedly credible,’’ that he ‘‘believed the term

‘historically’ in § 8 of the agreement referred to income from the time the

parties were married, which consisted substantially of his biweekly salary

and quarterly bonuses.’’ We conclude that this argument, that there was

never a meeting of the minds, is inapposite. ‘‘The essence of [a stipulated]

judgment is that the parties to the litigation have voluntarily entered into

an agreement setting their dispute or disputes at rest and that, upon this

agreement, the court has entered judgment conforming to the terms of the

agreement. . . . It necessarily follows that if the judgment conforms to the

stipulation it cannot be altered or set aside without the consent of all the

parties, unless it is shown that the stipulation was obtained by fraud, accident

or mistake. . . . For a judgment by consent is just as conclusive as one
rendered upon controverted facts.’’ (Internal quotation marks omitted.) Dougan v. Dougan, 301 Conn. 361, 368–69, 21 A.3d 791 (2011). The plaintiff never

filed a motion to open and vacate the dissolution judgment. Cf. Magowan

v. Magowan, 73 Conn. App. 733, 735–37, 812 A.2d 30 (2002), cert. denied,

262 Conn. 934, 815 A.2d 134 (2003).

Moreover, the plaintiff was represented by counsel at the time of the

separation agreement’s negotiation, he executed the lengthy and detailed

agreement, he was canvassed by his counsel regarding the terms of that

agreement, and the court, after finding it fair and equitable, incorporated

the terms of it into the dissolution judgment. Thus, his argument that an

enforceable contract did not exist is unconvincing. See Tedesco v. Agolli,

Superior Court, judicial district of Waterbury, Docket No. CV-12-6016130-S

(June 21, 2016) (‘‘[w]hen an agreement is reduced to writing and signed by

all parties, the agreement itself is substantial evidence that a meeting of the

minds has occurred’’) (reprinted at 182 Conn. App. 294, 308, 189 A.3d 676),

aff’d, 182 Conn. App. 291, 308, 189 A.3d 672, cert. denied, 330 Conn. 905,

192 A.3d 427 (2018).

Lastly, the court credited the defendant’s testimony as to the intention

of the parties and, thus, implicitly found a mutual understanding of the

relevant terms as articulated by the defendant, a finding the plaintiff has

not demonstrated is clearly erroneous. See M.J. Daly & Sons, Inc. v. West

Haven, 66 Conn. App. 41, 48, 783 A.2d 1138 (‘‘[w]hether a meeting of the

minds has occurred is a factual determination’’), cert. denied, 258 Conn.

944, 786 A.2d 430 (2001).

7 The plaintiff contends that future changes in IRS Form 1040 were fully

addressed by the reference in § 8 to ‘‘line 22 (or the equivalent) . . . .’’

(Emphasis added.) Thus, according to the plaintiff, the court failed to give

effect to the clear meaning of the word ‘‘historically’’ and, in doing so,

rendered it superfluous. He maintains that if the defendant’s interpretation

of the parties’ intent was correct, ‘‘it would have been much easier to simply

draft the agreement with the following language, ‘Income for the purposes

of this calculation is what the IRS requires on line 22 (or the equivalent)

of a joint 1040 tax return.’’ We are not persuaded that the court erred in

determining that both phrases ‘‘historically been listed’’ and ‘‘or the equivalent’’ were necessary to explicate the separation agreement’s definition of

total income. The word ‘‘historically’’ ensures that the categories of income

that comprised line 22 at the time of the dissolution judgment would remain

the categories of income from which the plaintiff’s future support obligation

would be calculated. The phrase ‘‘or the equivalent’’ accounts for the possibility that, at some point in time, the IRS may alter Form 1040 such that line

22 is renumbered.

8 During the hearing on March 30, 2015, the following exchange occurred

with respect to the exclusion for patent income:

‘‘The Court: And you didn’t earn any patent income until after the dissolution; is that correct?

‘‘[The Plaintiff]: I still haven’t earned any patent income.

‘‘The Court: If your definition—

‘‘[The Plaintiff]: So, I’ve never earned any patent income.

‘‘The Court: Understood. But the demarcation here is the line drawn by

the dissolution.

‘‘[The Plaintiff]: Yes.

‘‘The Court: Prior to the dissolution, you made no patent income?

‘‘[The Plaintiff]: Right.

‘‘The Court: At the time of the dissolution, you excluded patent income?

‘‘[The Plaintiff]: Right.

‘‘The Court: So, patent income would never have been included in the

historical category—

‘‘[The Plaintiff]: Right.

‘‘The Court: —to derive line 22. If that’s the case, why did you need the

page 7 exclusion if historically you had never earned any patent income?

‘‘[The Plaintiff]: Well, I think the reason is because at the time, throughout

the years, I had been thinking about some devices and actually went to a

company on a couple of occasions with device ideas for patenting, and it

never came to fruition.

‘‘The Court: I understand that . . . [b]ut my question is, if the definition

of historical never included patent income because you hadn’t earned any

patent income—

‘‘[The Plaintiff]: Right.

‘‘The Court: —why did you need this second exclusion I’ll call it because

by your definition, if I’m understanding you correctly, historically would
exclude patent income and yet you included a second sentence to specifically

exclude patent income.

‘‘[The Plaintiff]: Well, if it was put to me that way, I probably wouldn’t

have requested it, but what happened was that while we were marking—

going through this, I had mentioned to my attorney that, you know, I kind

of have an inventive mind and I think at some point, I might do this, am I

protected here, and so she added it in, and I think that they didn’t have any

problem with that, so it never came up. But if you put it to me as well, you

know, patent income, it’s not part of your historic so it wouldn’t make a

difference, then I probably wouldn’t—it wouldn’t have mattered to me.’’

9 The testimony before the court included the defendant’s testimony that

‘‘historically defined what was required to be listed as income on the 1040

tax return.’’ The plaintiff, in contrast, testified as follows: ‘‘It was my understanding that my obligation to pay unallocated support was based upon my

historical income. Basically, all the income that I had earned in the past

while we were married, it says here on the joint 1040 federal tax returns

and to me, my interpretation is we were married and so the money that I

had earned during those years was filed on our joint returns.’’ The plaintiff

further testified: ‘‘So, at the time of the divorce, I had been married for

somewhere around [twenty] years, and I had only received one form of

income—well, one basic form of income and that was I received biweekly

paychecks and quarterly bonuses. So, at the time of the divorce, that was

my interpretation of my historical income.’’