Cynthia E. Nuzzi v. Carmine Nuzzi (2014)

CORRECTED MEMORANDUM OF DECISION

(Correction to Memorandum of Decision dated October 1, 2013 regarding the omission of the words “wilfully” and wilful” on page 15, section 3, lines 1 and 4, respectively.)

The plaintiff, Cynthia Nuzzi, and the defendant, Carmine Nuzzi, were divorced on June 13, 2007.   At the time of the entry of the judgment, there were two minor children of the parties' marriage, to wit:  Justin Tyler Nuzzi, born on April 23, 1993 and Rachel Ann Nuzzi, born on August 15, 1997.   The parties' separation agreement dated June 13, 2007, was incorporated into the judgment on an even date therewith.   As paraphrased herein, the separation agreement provides ¹ in section 8.1 that the defendant pay 40% up to the first $250,000 of his earned income or 35% of his earned income capped at $500,000, as the case may be, as unallocated alimony and child support.   Section 8.2 provides that the unallocated payments shall be made until the first to occur:  the death of the defendant, death, remarriage or cohabitation of the plaintiff or 8 years from the first payment and that the term of alimony shall be non modifiable by the parties.   Section 8.3 states that notwithstanding 8.1, the defendant shall make minimum payments of $3,000 a month for one year only because he is starting a new business and that there shall be a de novo review by the court after the expiration of said one-year period to determine the amount of alimony, if any, to be paid by the defendant based upon his then current earned income.

On March 5, 2013 and March 6, 2013, a hearing was held at which the court heard testimony and received evidence.   From the relevant and credible evidence presented, the demeanor of the parties, the court's examination of the court file,² the court's review of the parties' memorandum of law ³ and claims for relief, the court makes the following findings of fact.   On May 12, 2008, the defendant filed a motion for modification of alimony, postjudgment (# 173.00) requesting a de novo hearing pursuant to the terms of the separation agreement and seeking either a termination of alimony and an order of child support or a downward modification of alimony with an order of child support along with a retroactive order.⁴  On May 2, 2012, the parties appeared before J. Shay on the plaintiff's motion for modification, postjudgment.   During the hearing, the court discovered that the motion on which the plaintiff intended to proceed was not the plaintiff's motion but was the defendant's motion (# 173.00).   The following day, the plaintiff filed a motion for contempt, postjudgment (# 207.00).   On March 5, 2013 and March 6, 2013, the court heard testimony and received evidence simultaneously on the defendant's motion for modification (# 173.00) and the plaintiff's motion for contempt (# 207.00).   At the hearing, both parties testified that June 2008 was the last time the defendant made a payment of $3,000 to the plaintiff and that the defendant has been paying the plaintiff $1,200 a month from July 2008 to the present.   The defendant testified that he did not provide the plaintiff with monthly written calculations as to how he determined the amount of his monthly support obligation but acknowledged that “[t]hat's what's stated in the agreement, correct.” ⁵  The defendant testified that he reduced the support payment to $1,200 a month based upon what he could afford at that time from the income he generated from his fledgling one and a half-year-old business, but this testimony was contradicted by the evidence in the record.   The plaintiff testified that she has had to borrow ⁶ approximately $500,000 from her father over the past five years because the defendant reduced his support payments to $1,200 a month during that period of time.   The defendant testified that it was not his intent to avoid paying the plaintiff 40% of his earned income, yet none of the evidence in the record reflects that the defendant ever paid the plaintiff 40% of his earned income.   The maximum amount of support the plaintiff received was $3,000 a month for the year following the divorce and then the defendant lowered his support payments to $1,200 a month from July 2008 and has continued to pay the plaintiff $1,200 a month from that day to the present.   The defendant argued that the sums of money the plaintiff received from her father were gifts and not loans and should be considered as income available to her.⁷  The plaintiff testified that except for suffering from some occasional bouts of anxiety and now stress, she is otherwise healthy and there is nothing preventing her from working, although she finds it difficult to commit to a job because of the needs of their children.⁸  She testified that she spends her day by dropping off and picking up their youngest child to and from school most days, taking their adult son to medical appointments and performing occasional clerical work for her father's business for which she receives no compensation.   The court finds that the testimony of the defendant was not credible during the hearing.

Before the court endeavors to consider the substantive factual issues raised by the defendant in his postjudgment motion for modification of alimony, the court will first address the threshold question raised by the plaintiff regarding the question of whether the defendant's May 9, 2008 motion that he filed on May 12, 2008 is stale.   The court begins by setting forth the applicable rules and legal principles with respect to the issue of staleness as it pertains to the defendant's motion.

Practice Book § 25–34(e) states, in pertinent part:  “Unless for good cause shown, no motion may be reclaimed after a period of three months from the date of filing.”

“Whether a party has shown good cause in not pursuing a motion within the three month limitation is a question of fact for the trial court.”  Larson v. Larson, 89 Conn.App. 57, 69, 872 A.2d 912, cert. denied, 274 Conn. 915, 879 A.2d 892 (2005).   The illustrations of what has been found to be good cause shows variation according to the factual circumstances.   Mondello v. Mondello, Superior Court, judicial district of New London, Docket No. FA 97–0542932 (March 10, 2009, Boland, J.);  Cannon v. Cannon, 109 Conn.App. 844, 953 A.2d 694 (2008) (court entertained motions pending for more than three years because the court noted that counsel for the parties collectively filed intervening motions evidencing their attentiveness).   Welch v. Welch, Superior Court, judicial district of New Haven, Docket No. 92–0339295 (March 5, 2005, Abery–Wetstone, J.) (Court found the defendant's eight-year-old motion to modify was not stale where the defendant continued to pay child support in accordance with the Child Support Guidelines after the expiration of the initial order of child support ordered by the court and the plaintiff repeatedly reclaimed but did not pursue a motion for contempt) Nathan v. Witke, Superior Court, judicial district of Fairfield, Docket No. FA 96–0330221 (January 22, 2002, Bassick, J.T.R.) Good cause shown to hear a stale motion where the parties were engaged in on-going negotiations).

Applying the foregoing legal principles to the facts of this case, the court must determine whether the defendant has made a showing of good cause.   In her post-hearing memorandum of law, the plaintiff argues that the defendant's nearly five-year-old motion is stale and is not properly before the court pursuant to Practice Book § 25–34(e).   She claims that except for the filing of the motion on May 12, 2008 and the taking of depositions early in the following year, the defendant took no other action on his motion until the present hearing before the court beginning on March 5, 2013.   More specifically, the plaintiff notes that the defendant never pursued court intervention on his motion to have it heard by the court and elected at the hearing scheduled before J. Shay on May 2, 2012 not to proceed with his motion on that day.   In response, the defendant propounds in his post-hearing memorandum of law that motions for modification of support orders and motions for contempt regarding support orders are routinely heard together ⁹ as the evidentiary issues are similar and to avoid, as paraphrased herein, a “great injustice that would inure to one party to the detriment of the other if one was afforded the clear benefit of retroactivity while the other is denied similar consideration.” ¹⁰  Unlike the plaintiff, the defendant is not as forthcoming in alleging that the plaintiff was dilatory in pursuit of their respective motions.   In fact, the defendant says the plaintiff was not dilatory.   But the defendant does refer to the supposed delays and resulting prejudice he allegedly suffered by the plaintiff's pursuit of her “phantom” motion for modification.   As an example, the defendant mentions the May 2, 2012 hearing before J. Shay at which the plaintiff's previous counsel thought she was proceeding under a motion for modification.   When it became apparent to the court that the motion for modification was the defendant's motion for modification (# 173.00) and that there was no pending motion filed by the plaintiff before the court, a fact each counsel overlooked by their own admission, counsel for the plaintiff represented to the court that she would file a motion for contempt and get a new court date.   The defendant also points out that there are 45 entries since the defendant filed his motion, that the parties came to court on several occasions only to learn that the court could not accommodate them and that the parties engaged in and complied with discovery during that period.   And finally, the defendant argues the defenses of equitable estoppel, laches and unclean hands citing the case of Zipkin v. Zipkin, Superior Court, judicial district of Hartford, Docket No. FA 99–0721406 (March 16, 2009, Abery–Wetstone, J.), which provides an overview of the inequities that can occur if there is an uneven application of retroactivity.   With respect to the claims of law he raises in his defense, the defendant concedes that the plaintiff did not intentionally act in a manner to induce.   Yet he argues that the plaintiff's pursuit of her “phantom” motion for modification and the ensuing delays caused ostensibly the same result.   But this defense then fails because all of the criteria required to establish equitable estoppel has not been met.   In relation to his laches argument, the defendant refers to the legal standard of proving the defense of laches as set forth in the case of Fromm v. Fromm, 108 Conn.App. 376, 385, 940 A.2d 328 (2008).   He claims that the plaintiff's lack of knowledge that she had no pending motion contributed to an inexcusable delay to the defendant's detriment if retroactivity is denied.   The defendant's argument is unconvincing because the plaintiff makes a counter argument that is most unfavorable to the defendant on this point.   The plaintiff claims the defendant could have proceeded with his motion at the May 2, 2012 hearing but opted not do so.   Thus, this argument suggests that the defendant played a part in the delay as well.   Lastly, the defendant, as did the plaintiff, raises the doctrine of unclean hands quoting Hill v. Raffone, 103 Conn.App. 737, 745, 930 A.2d 788 (2007) (“For a complainant to show that he is entitled to the benefit of equity, he must establish that he comes into Court with clean hands”).

Regarding the doctrine of unclean hands, our Appellate Court has stated:

“The doctrine of unclean hands expresses the principle that where a [party] seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue ․ For a complainant to show that he is entitled to the benefit of equity he must establish that he comes into court with clean hands ․ The clean hands doctrine is applied not for the protection of the parties but for the protection of the court ․ It is applied ․ for the advancement of right and justice ․ The party seeking to invoke the clean hands doctrine to bar equitable relief must show that his opponent engaged in wilful misconduct with regard to the matter in litigation ․ The trial court enjoys broad discretion in determining whether the promotion of public policy and the preservation of the courts' integrity dictate that the clean hands doctrine be invoked.”  (Internal quotation marks omitted.)  Curtis v. Curtis, 134 Conn.App. 833, 846 (2012).

Applying the rules and law to the instant facts, the court finds that the defendant has failed to show good cause for the delay by a preponderance of the evidence.   Other than rhetoric,¹¹ the defendant offered scant evidence to substantiate the efforts that were undertaken in pursuit of his own motion.   For instance, there was no showing of the specific court dates he attended, dates when discovery was requested and/or complied with, dates on which depositions were taken or the dates when the parties met to negotiate.   The only level of specificity proffered in connection with dates of the defendant's actions were May 12, 2008, the date of the filing of the motion (# 173.00), and the May 2, 2012 hearing before J. Shay. The court takes judicial notice of dates on which the parties attended the hearing before the undersigned.   And by way of an alternative offer of proof, the defendant offered nothing by way of, again as an illustration, activities with which he was actively as opposed to passively engaged in with opposing counsel in pursuit of having the defendant's and/or the plaintiff's motion heard before the court.   The defendant provided the court with no affidavit of attorneys fees or an itemization of the legal services he performed or no copies of publically available documents he drafted, reviewed or filed.   The defendant was left to his proof, which the court finds underwhelming, unpersuasive and insufficient to demonstrate good cause by a preponderance of the evidence.   It is not the role of the court to fill the void between May 12, 2008 and May 2, 2012 with fanciful speculation or close the gap from May 2, 2012 to date of the hearings over which the undersigned presided on March 5, 2013 and March 6, 2013 by inferring that there was some intensive flurry of interaction between the defendant and the plaintiff to move the defendant's and/or the plaintiff's motions forward by obtaining a date certain for a hearing during any of those time periods.   In saying this, it should be perfectly clear that the court is not casting any aspersions in any way, shape or form with respect to the veracity of counsel for the defendant or attempting to disparage his legal strategy, steadfast adherence to his understanding of the routine practice of hearing both motions simultaneously or the efforts he undertook to get his motion on the court's calendar for a hearing on a date certain before a trial court.   This applies to the plaintiff's efforts as well.

Turning back to the other claims of law raised by the defendant in his memorandum of law, the defendant argues that sections 8.1 and 8.3 of the separation agreement are ambiguous.¹²  This argument, however, is inapposite to the defendant's testimony.   The testimony of the defendant indicates that he was aware of his obligations under court order, and while he filed a motion for modification, elected to unilaterally reduce the amount of his monthly payments to the plaintiff before the de novo hearing on his motion was held.   He expressed no confusion about what the order required of him and expressed in no uncertain terms that he believed he should not pay the plaintiff any alimony.   The evidence in the record reflects that the defendant was aware that he was supposed to pay the plaintiff unallocated alimony and child support in the amount of $3,000 a month for one year only and that a de novo hearing would be held before the court for the purpose of modifying, terminating or setting the order.   Nothing in the separation agreement contained any language that could reasonably be interpreted to permit the defendant to reduce the payments to $1,200 a month.   The section providing for the payment of $3,000 a month during the one-year grace period only could not be read in a vacuum.   To be sure, the parties intended, in reading the applicable sections and the separation agreement as an integrated whole, that the defendant pay the plaintiff 40% of the first $250,000 of his earned income and that each party possessed the right to seek a de novo review before the court after the one-year grace period expired.   Nothing in the separation agreement conferred either power with the right to revise, change or otherwise hypothecate any of the terms and conditions to comport with their subjective interpretation of the applicable terms.   The separation agreement expressly left it to the court to set, modify and/or terminate alimony and child support.

Now turning to the doctrine of unclean hands, the facts found by the court demonstrate that defendant is not coming to the court with “clean hands.”   The defendant is petitioning the court to use its equitable powers to afford him with relief by either terminating or modifying his unallocated alimony and support order retroactively when he decided, on his very own accord, to supplant his discretion for that of the court's in contradiction to the expressed terms of the separation agreement and unilaterally reduce his court-ordered support obligation to the equivalent of what he deemed to be in accordance with the Child Support Guidelines in July of 2008.   Although the court recognizes that the defendant dutifully filed a motion for modification of alimony on May 12, 2008 seeking a de novo hearing for the termination or modification of alimony and order of child support, it is not lost on the court that the defendant engaged in self-help.   The defendant alone made an extrajudicial decision to modify his support obligation and pay the equivalent of only child support to the plaintiff beginning in July of 2008.   As discussed above, the defendant's motion for modification of alimony, postjudgment is stale and, thus, no longer pending before the court.

In light of the foregoing reasons, the court denies the defendant's motion for modification of alimony, postjudgment (# 173.00).   The next motion the court will address is the plaintiff's motion for contempt, postjudgment (# 207.00).

Plaintiff's Motion for Contempt, Postjudgment (# 207.00)

The court begins by stating the general rules of law to establish the basis for a motion for contempt.

In Connecticut, the general rule is that a court order must be followed until it has been modified or successfully challenged.  Eldridge v. Eldridge, 244 Conn. 523, 530, 710 A.2d 757 (1998).   Moreover, “[o]ur Supreme Court repeatedly has advised parties against engaging in self-help and has stressed that an order fo the court must be obeyed until it has been modified or successfully challenged.”  Culver v. Culver, 127 Conn.App. 236, 242, 17 A.3d 1048 (2011), citing Sablosky v. Sablosky, 258 Conn. 713, 719, 784 A.2d 890 (2001).

“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).   The movant has the burden of proof to show, by a preponderance of the evidence, the existence of a court order and noncompliance with that order.  Issler v. Issler, 50 Conn.App. 58, 66–69, 716 A.2d 938 (1998).  “Noncompliance alone will not support a judgment of contempt.”  Prial v. Prial, 67 Conn.App. 7, 15, 87 A.2d 50 (2001).   Moreover, “a court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was willful.”  (Internal quotation marks omitted.)  Wilson v. Wilson, 38 Conn.App. 263, 275–76, 661 A.2d 621 (1995).   In any contempt, the underlying court order must have been sufficiently clear and unambiguous so as to support a judgment of contempt.   The court must find that there was a violation of said order and that the violation was willful.   Finally, the court must find that the willful violation of the clear and unambiguous order was not excused by a good-faith dispute or misunderstanding.  In re Leah S., supra, 284 Conn. 685, 693–94 (2007).  “[E]ven in the absence of a finding of contempt, a trial court has broad discretion to make whole any party who has suffered as a result of another party's failure to comply with a court order.”  (Emphasis omitted;  internal quotation marks omitted.)  Fuller v. Fuller, 119 Conn.App. 105, 115, 987 A.2d 1040 (2010).   Even though a party's actions did not constitute contempt, a court's remedial orders are well within its general remedial discretion.  Fitzgerald v. Fitzgerald, 16 Conn.App. 458, 553, 547 A.2d 1387 (1988).

Again, from the factual findings made herein in connection with the preceding defendant's motion for modification (# 173.00), the court reiterates that it made the following relevant and credible findings of fact.   The defendant never provided the plaintiff with monthly calculations as to how he determined his earned income as required under the terms of the separation agreement.   The defendant knew that he was obligated to pay the plaintiff 40% of up to his first $250,000 of each income and 35% of up to a cap of up to $500,000 of his earned income and that he was supposed to pay her unallocated alimony and child support in the amount of $3,000 a month for one year only and then petition the court for a de novo hearing.

The defendant testified that he reduced his support payments to $1,200 a month after the expiration of the one-year period because that is all he could afford.   The court is not persuaded by this claim and finds that his testimony is not credible.

Based on the relevant and credible evidence:

1. The court finds the defendant had notice of the court's order dated June 13, 2007.

2. The court finds that its order was clear and unambiguous in its direction for the defendant to 1. pay the plaintiff 40% of his earned income up to $250,000 and 35% of his earned income capped at $500,000 as unallocated alimony and child support, except for the one-year grace period in which he was required to pay her $3,000 for only one year, for a term of eight years unless otherwise modified or terminated or set by the court at a de novo hearing after the expiration of the one-year grace period and 2. provide the plaintiff with his monthly calculation of his income.

3. The court further finds that the defendant has wilfully failed to comply with the aforesaid order by unilaterally reducing the support order to $1,200 a month commencing on June 2008 and continuing to the present and failing to provide the plaintiff with said calculations and, thus, the defendant is in wilful contempt of the court's order dated June 13, 2007.

4. The court further finds that the defendant owes the wife unallocated alimony and child support, for the period June 1, 2008 through September 30, 2012, in the total amount of $210,640.80 as follows:

A.  June 1, 2008 through December 31, 2008 (gross income of $47,600);

40% of gross income of $47,600 = $19,040 owed, less $8,400 (support paid) equals $10,640 owed for 2008.

B. January 1, 2009 through December 31, 2009 (gross income of $85,050);

40% of gross income of $85,050 = $34,020 owed, less $14,400 (support paid) equals $19,620 owed for 2009.

C. January 1, 2010 through December 31, 2010 (gross income of $199,052);

40% of gross income of $199,052 = $79,620.80 owed, less $14,400 (support paid) equals $65,220.80 owed for 2010.

D. January 1, 2011 through December 31, 2011 (gross income of $192,900);

40% of gross income of $192,900 = $77,160 owed, less $14,400 (support paid) equals $62,760 owed for 2011.

E. January 1, 2012 through September 30, 2012 (gross income of $158,000):

40% of gross income of $158,000=$63,200 owed, less $10,800 paid equals $52,400 owed from 2012 (through September 30, 2012).

5. The husband shall immediately pay to the wife $30,000 in lump sum towards the arrearage, which money is presently held in the defendant's Wells Fargo Investment account, account number ending * * *2915, thereby reducing the defendant's owed arrearage to $180,640.80.

6. The defendant shall within 10 days rollover to the wife the entirety of his Wells Fargo IRA, which is presently valued at approximately $96,521.46, thereby reducing the defendant's owed arrearage to $84,119.34.

7. Regarding the remaining arrearage of $84,119.34, the defendant shall, upon the expiration of his unallocated alimony and child support obligation, or July 1, 2015, pay to the plaintiff equal monthly installments equal to 40% of his gross income until such time as the arrearage is paid in full.

8. The defendant shall pay the plaintiff's reasonable attorneys fees and costs.

9. Based on the foregoing, the court hereby grants the plaintiff's motion for contempt, postjudgment (# 207.00) as specifically set forth herein.

BY THE COURT,

SYBIL V. RICHARDS, JUDGE

FOOTNOTES

FN1. The pertinent sections of the separation agreement are set forth in their entirety as follows:8.1 The husband shall pay to the wife as unallocated alimony and child support, on the first day of each month, as follows:  forty (40%) percent of his earned income up to Two Hundred and Fifty Thousand ($250,000) Dollars per annum, and thirty-five (35%) percent of his earned income from Two Hundred and Fifty Thousand ($250,000) Dollars to Five Hundred Thousand ($500,000) Dollars per annum, whereupon, the amount of alimony shall be capped.   The amount of the payments shall be determined by the “gross earned income” from the preceding month as defined in paragraph 8.6.8.2 The unallocated alimony and child support payments shall be made until the first of the following events:  the death of the husband, the death, remarriage or cohabitation of the wife pursuant to Section 46b–86(b) of the Connecticut General Statutes of eight (8) years from the first payment.   The term of the alimony shall be nonmodifiable by the husband and wife.8.3 Notwithstanding the provisions of Paragraph 8.1, the parties acknowledge that the husband is in the process of starting a new business and that his current earned income is set forth on his financial affidavit.   Accordingly, the husband shall pay to the wife, for a period of one (1) year only, “minimum payments” of three thousand ($3,000) dollars per month commencing on the first day of the first month after the execution of this Agreement and concluding 12 months thereafter.   After the one (1)-year period of time has expired, there shall be a de novo review, without the necessity to prove a substantial change in circumstances as described in paragraph 8.4, by the Superior Court at Stamford to determine the amount of alimony, if any, to be paid by the husband based upon his then current earned income.8.4 The husband and wife shall have the right to petition the Superior Court at Stamford, after the one (1)-year period as described above without a showing of a substantial change of circumstances, to terminate alimony and order child support only or modify the calculation of the amount of unallocated alimony and child support that shall be paid.   By way of example, if the husband's earned income is $0 to $60,000, either party may petition to have the percentage changed, a fixed dollar amount established, or that a party has a higher earning capacity warranting a higher or lower payment whether by a percentage or a fixed payment or that no alimony be paid.   In the event the current unallocated support order is terminated and no alimony payments are ordered, the court shall determine the amount of child support to be paid.8.5 “Gross earned income” shall be defined as gross income less all reasonable, necessary and allowable, under the Internal Revenue Code, business expenses, except depreciation which shall not be deducted.   Earnings from passive investments are specifically excluded from the definition of “gross earned income.”   The husband shall provide the wife, quarterly, upon her request, with the documentation for any business deduction taken by the husband.   Any dispute over the validity of a business deduction, or deductions, shall be determined by the Superior Court at Stamford.   The Superior Court shall have the discretion to award costs including, but not limited to, attorneys and accountant's fees to the prevailing party.   Specifically excluded from Gross Earned Income shall be any award received by defendant pursuant to the claim he has as described in Paragraph 10.10 and as against Alan Zipperstein.8.6 The husband shall provide, with each monthly payment, the documentation supporting his calculation of the payment due the wife..  FN1. The pertinent sections of the separation agreement are set forth in their entirety as follows:8.1 The husband shall pay to the wife as unallocated alimony and child support, on the first day of each month, as follows:  forty (40%) percent of his earned income up to Two Hundred and Fifty Thousand ($250,000) Dollars per annum, and thirty-five (35%) percent of his earned income from Two Hundred and Fifty Thousand ($250,000) Dollars to Five Hundred Thousand ($500,000) Dollars per annum, whereupon, the amount of alimony shall be capped.   The amount of the payments shall be determined by the “gross earned income” from the preceding month as defined in paragraph 8.6.8.2 The unallocated alimony and child support payments shall be made until the first of the following events:  the death of the husband, the death, remarriage or cohabitation of the wife pursuant to Section 46b–86(b) of the Connecticut General Statutes of eight (8) years from the first payment.   The term of the alimony shall be nonmodifiable by the husband and wife.8.3 Notwithstanding the provisions of Paragraph 8.1, the parties acknowledge that the husband is in the process of starting a new business and that his current earned income is set forth on his financial affidavit.   Accordingly, the husband shall pay to the wife, for a period of one (1) year only, “minimum payments” of three thousand ($3,000) dollars per month commencing on the first day of the first month after the execution of this Agreement and concluding 12 months thereafter.   After the one (1)-year period of time has expired, there shall be a de novo review, without the necessity to prove a substantial change in circumstances as described in paragraph 8.4, by the Superior Court at Stamford to determine the amount of alimony, if any, to be paid by the husband based upon his then current earned income.8.4 The husband and wife shall have the right to petition the Superior Court at Stamford, after the one (1)-year period as described above without a showing of a substantial change of circumstances, to terminate alimony and order child support only or modify the calculation of the amount of unallocated alimony and child support that shall be paid.   By way of example, if the husband's earned income is $0 to $60,000, either party may petition to have the percentage changed, a fixed dollar amount established, or that a party has a higher earning capacity warranting a higher or lower payment whether by a percentage or a fixed payment or that no alimony be paid.   In the event the current unallocated support order is terminated and no alimony payments are ordered, the court shall determine the amount of child support to be paid.8.5 “Gross earned income” shall be defined as gross income less all reasonable, necessary and allowable, under the Internal Revenue Code, business expenses, except depreciation which shall not be deducted.   Earnings from passive investments are specifically excluded from the definition of “gross earned income.”   The husband shall provide the wife, quarterly, upon her request, with the documentation for any business deduction taken by the husband.   Any dispute over the validity of a business deduction, or deductions, shall be determined by the Superior Court at Stamford.   The Superior Court shall have the discretion to award costs including, but not limited to, attorneys and accountant's fees to the prevailing party.   Specifically excluded from Gross Earned Income shall be any award received by defendant pursuant to the claim he has as described in Paragraph 10.10 and as against Alan Zipperstein.8.6 The husband shall provide, with each monthly payment, the documentation supporting his calculation of the payment due the wife.

FN2. The court file contains a copy of the transcript from the May 2, 2012 hearing before J. Shay. Both parties attached a copy of said transcript to their respective memorandum of law, post-hearing, submitted to the court.   In her memorandum, the plaintiff asked the undersigned to treat certain statements made by the defendant's counsel at such hearing as “judicial admissions” and cited the following:  “Judicial admissions are voluntary and knowing concessions of fact by a party or a party's attorney occurring during judicial proceedings.”  National Amusements, Inc. v. East Windsor, 84 Conn.App. 473, 482, 854 A.2d 58 (2004);  Macy v. Lucas, 72 Conn.App. 142, 153, 804 A.2d 971 (2002).  “A judicial admission dispenses with the production of evidence by the opposing party as to the fact admitted, and is conclusive upon the party making it.”  Solomon v. Connecticut Medical Examining Board, 85 Conn.App. 854, 866, 859 A.2d 932 (2004) cert. denied, 273 Conn. 906, 868 A.2d 748 (2005);  see Rodia v. Tesco Corp., 11 Conn.App. 391, 395, 527 A.2d 721 (1987) (stating that judicial admissions are binding on the party making them).In contemplating the plaintiff's request, further legal research revealed the irrefutable and binding nature that such judicial admissions would have upon the court.“The distinction between judicial admissions and mere evidentiary admissions is a significant one that should not be blurred by imprecise usage ․ While both types are admissible, their legal effect is markedly different;  judicial admissions are conclusive on the trier of fact, whereas evidentiary admissions are only evidence to be accepted or rejected by the trier ․ Additionally,[i]t is well settled that [f]actual allegations contained in pleadings upon which the cause is tried are considered judicial admission, which prohibits any further dispute of a party's factual allegation contained in its pleadings on which the case is tried, [a]n evidential admission is subject to explanation by the party making it so that the trier may properly evaluate it ․ Thus, an evidential admission, while relevant as proof of the matter stated ․ [is] not conclusive ․ Because the probative value of an admission depends on the surrounding circumstances, it raises a question for the trier of fact ․ The trier of fact is free to give as much weight to such an admission as, in the trier's judgment, it merits, and need not believe the arguments made regarding the statement by one side or the other.”   (Citations omitted;  emphasis added;  internal quotation marks omitted.)   O & G Industries, Inc. v. All Phase Enterprises, Inc., 112 Conn.App. 511, 523, 963 A.2d 676 (2009).”“The determination of whether a party's statement is a judicial admission or an evidentiary admission is a question of fact for the trial court.”   (Internal quotation marks omitted.)  Young v. Vlahos, 103 Conn.App. 470, 477, 929 A.2d 362 (2007), cert. denied, 285 Conn. 913, 943 A.2d 474 (2008);  see Sweet v. Sweet, 190 Conn. 657, 662, 462 A.2d 1031 (1983) ( ‘[w]hether these statements when viewed as a whole result in a judicial admission is a determination best left to the trial court which observed the witnesses, heard the testimony and was the sole judge of the weight to be accorded such testimony’);  see also Hudson United Bank v. Cinnamon Ridge Corp., 81 Conn.App. 557, 565 n.10, 845 A.2d 417 (2004) (witness or party should not be presumed to have made judicial admission without finding of trial court);  Harlan v. Norwalk Anesthesiology, P.C., 75 Conn.App. 600, 608–09, 816 A.2d 719 (court must be asked to make finding as to nature of admission), cert.   Denied, 264 Conn. 911, 826 A.2d 1155 (2003).”  Id., 524.”Given that the undersigned was not the trial judge who presided over the May 2, 2012 hearing during which such alleged “judicial admissions” were made, and in light of the foregoing legal principles, the court declines to be so bound and denies the plaintiff's request..  FN2. The court file contains a copy of the transcript from the May 2, 2012 hearing before J. Shay. Both parties attached a copy of said transcript to their respective memorandum of law, post-hearing, submitted to the court.   In her memorandum, the plaintiff asked the undersigned to treat certain statements made by the defendant's counsel at such hearing as “judicial admissions” and cited the following:  “Judicial admissions are voluntary and knowing concessions of fact by a party or a party's attorney occurring during judicial proceedings.”  National Amusements, Inc. v. East Windsor, 84 Conn.App. 473, 482, 854 A.2d 58 (2004);  Macy v. Lucas, 72 Conn.App. 142, 153, 804 A.2d 971 (2002).  “A judicial admission dispenses with the production of evidence by the opposing party as to the fact admitted, and is conclusive upon the party making it.”  Solomon v. Connecticut Medical Examining Board, 85 Conn.App. 854, 866, 859 A.2d 932 (2004) cert. denied, 273 Conn. 906, 868 A.2d 748 (2005);  see Rodia v. Tesco Corp., 11 Conn.App. 391, 395, 527 A.2d 721 (1987) (stating that judicial admissions are binding on the party making them).In contemplating the plaintiff's request, further legal research revealed the irrefutable and binding nature that such judicial admissions would have upon the court.“The distinction between judicial admissions and mere evidentiary admissions is a significant one that should not be blurred by imprecise usage ․ While both types are admissible, their legal effect is markedly different;  judicial admissions are conclusive on the trier of fact, whereas evidentiary admissions are only evidence to be accepted or rejected by the trier ․ Additionally,[i]t is well settled that [f]actual allegations contained in pleadings upon which the cause is tried are considered judicial admission, which prohibits any further dispute of a party's factual allegation contained in its pleadings on which the case is tried, [a]n evidential admission is subject to explanation by the party making it so that the trier may properly evaluate it ․ Thus, an evidential admission, while relevant as proof of the matter stated ․ [is] not conclusive ․ Because the probative value of an admission depends on the surrounding circumstances, it raises a question for the trier of fact ․ The trier of fact is free to give as much weight to such an admission as, in the trier's judgment, it merits, and need not believe the arguments made regarding the statement by one side or the other.”   (Citations omitted;  emphasis added;  internal quotation marks omitted.)   O & G Industries, Inc. v. All Phase Enterprises, Inc., 112 Conn.App. 511, 523, 963 A.2d 676 (2009).”“The determination of whether a party's statement is a judicial admission or an evidentiary admission is a question of fact for the trial court.”   (Internal quotation marks omitted.)  Young v. Vlahos, 103 Conn.App. 470, 477, 929 A.2d 362 (2007), cert. denied, 285 Conn. 913, 943 A.2d 474 (2008);  see Sweet v. Sweet, 190 Conn. 657, 662, 462 A.2d 1031 (1983) ( ‘[w]hether these statements when viewed as a whole result in a judicial admission is a determination best left to the trial court which observed the witnesses, heard the testimony and was the sole judge of the weight to be accorded such testimony’);  see also Hudson United Bank v. Cinnamon Ridge Corp., 81 Conn.App. 557, 565 n.10, 845 A.2d 417 (2004) (witness or party should not be presumed to have made judicial admission without finding of trial court);  Harlan v. Norwalk Anesthesiology, P.C., 75 Conn.App. 600, 608–09, 816 A.2d 719 (court must be asked to make finding as to nature of admission), cert.   Denied, 264 Conn. 911, 826 A.2d 1155 (2003).”  Id., 524.”Given that the undersigned was not the trial judge who presided over the May 2, 2012 hearing during which such alleged “judicial admissions” were made, and in light of the foregoing legal principles, the court declines to be so bound and denies the plaintiff's request.

FN3. The court recognizes that memoranda of law are not evidence..  FN3. The court recognizes that memoranda of law are not evidence.

FN4. Section 46b–86(a) of the Connecticut General Statues provides, in relevant part, that:No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order for the date of service of notice of such pending motion upon the opposing party pursuant to section 52–50.(Emphasis added.)In light of the court's decision on the defendant's motion for modification, the court will not address this claim of law..  FN4. Section 46b–86(a) of the Connecticut General Statues provides, in relevant part, that:No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order for the date of service of notice of such pending motion upon the opposing party pursuant to section 52–50.(Emphasis added.)In light of the court's decision on the defendant's motion for modification, the court will not address this claim of law.

FN5. The quoted response is from a colloquy between the defendant and the plaintiff's counsel during direct examination by plaintiff's counsel from the March 5, 2013 transcript, page 143, lines 13 to 20:Q: “I'll withdraw the question.   Isn't it a fact, sir, that at no point since the date of your divorce have you ever given Ms. Nuzzi a monthly calculation supporting how you arrive at the monthly amount that you pay her?”A: “No.”Q: “And you agree that your separation agreement requires you to do so;  isn't that correct?”A: “That's what's stated in the agreement, correct.”.  FN5. The quoted response is from a colloquy between the defendant and the plaintiff's counsel during direct examination by plaintiff's counsel from the March 5, 2013 transcript, page 143, lines 13 to 20:Q: “I'll withdraw the question.   Isn't it a fact, sir, that at no point since the date of your divorce have you ever given Ms. Nuzzi a monthly calculation supporting how you arrive at the monthly amount that you pay her?”A: “No.”Q: “And you agree that your separation agreement requires you to do so;  isn't that correct?”A: “That's what's stated in the agreement, correct.”

FN6. Although the defendant identified several alleged irregularities with the plaintiff's promissory notes, such as a lack of repayment terms or an acknowledgment, the plaintiff did not offer any legal foundation to show that said instruments failed to be made or executed in accordance with the laws applicable thereto..  FN6. Although the defendant identified several alleged irregularities with the plaintiff's promissory notes, such as a lack of repayment terms or an acknowledgment, the plaintiff did not offer any legal foundation to show that said instruments failed to be made or executed in accordance with the laws applicable thereto.

FN7. In light of the court's decision in connection with the defendant's motion for modification of alimony, postjudgment (# 173.00), there is no need for the court to address this claim of fact..  FN7. In light of the court's decision in connection with the defendant's motion for modification of alimony, postjudgment (# 173.00), there is no need for the court to address this claim of fact.

FN8. The court will not address this claim either for the reason set forth in footnote 6 above..  FN8. The court will not address this claim either for the reason set forth in footnote 6 above.

FN9. The defendant offered no authority for what may be a matter of customary practice in the legal profession in the area of family law in relation to the two motions that are before the court.   Although Practice Book § 25–34 was amended in 2011, the current section (e) and the former section (c) are identical and therefore is not likely the source upon which is he relying for this proposition..  FN9. The defendant offered no authority for what may be a matter of customary practice in the legal profession in the area of family law in relation to the two motions that are before the court.   Although Practice Book § 25–34 was amended in 2011, the current section (e) and the former section (c) are identical and therefore is not likely the source upon which is he relying for this proposition.

FN10. The exact quote from the last two lines of page 12 the defendant's June 3, 2013 post-hearing memorandum of law is as follows:  “Great prejudice would inure to the detriment of Defendant if Plaintiff were afforded the clear benefit of retroactivity while Defendant is denied similar consideration.”.  FN10. The exact quote from the last two lines of page 12 the defendant's June 3, 2013 post-hearing memorandum of law is as follows:  “Great prejudice would inure to the detriment of Defendant if Plaintiff were afforded the clear benefit of retroactivity while Defendant is denied similar consideration.”

FN11. The type of rhetoric offered by the defendant was in 1. the form of argument 2. dicta in his memorandum of law 3. a reference to the 45 entries that are shown on the judicial website and 4. an explanation of his strategy in waiting until both motions could be heard simultaneously..  FN11. The type of rhetoric offered by the defendant was in 1. the form of argument 2. dicta in his memorandum of law 3. a reference to the 45 entries that are shown on the judicial website and 4. an explanation of his strategy in waiting until both motions could be heard simultaneously.

FN12. “A contract must be constructed to effectuate the intent of the parties ․ [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words ․ the language used must be accorded its common, natural, and ordinary meaning and usage ․” Hammond v. Hammond, 145 Conn.App. 607, 612 (2013).  “When the language of a contract is ambiguous, the determination of the parties' intent is a question of fact ․” Id.“Our Supreme Court has instructed that interpretation of a separation agreement incorporated into a dissolution decree is guided by the general principles governing the construction of contracts ․ A contract must be construed to effectuate the intent of the parties, which is determined 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 ․ Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.   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.”  (Citation omitted;  internal quotation marks omitted.)  Eckert v. Eckert, 285 Conn. 687, 692, 941 A.2d 301 (2008);  see also Isham v. Isham, 292 Conn. 170, 180–81, 972 A.2d 228 (2009)..  FN12. “A contract must be constructed to effectuate the intent of the parties ․ [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words ․ the language used must be accorded its common, natural, and ordinary meaning and usage ․” Hammond v. Hammond, 145 Conn.App. 607, 612 (2013).  “When the language of a contract is ambiguous, the determination of the parties' intent is a question of fact ․” Id.“Our Supreme Court has instructed that interpretation of a separation agreement incorporated into a dissolution decree is guided by the general principles governing the construction of contracts ․ A contract must be construed to effectuate the intent of the parties, which is determined 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 ․ Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.   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.”  (Citation omitted;  internal quotation marks omitted.)  Eckert v. Eckert, 285 Conn. 687, 692, 941 A.2d 301 (2008);  see also Isham v. Isham, 292 Conn. 170, 180–81, 972 A.2d 228 (2009).

Richards, Sybil V., J.