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CAROLINE HIRSCHFELD v. ROBERT B. MACHINIST
                (AC 35096)
                 Bear, Sheldon and Flynn, Js.*
         Argued March 6—officially released July 8, 2014

  (Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. Stanley Novack, judge trial
referee [judgment]; Shay, J. [motion for allocation].)
  Kenneth A. Votre, for the appellant (plaintiff).
  Dana M. Hrelic, with whom was Kenneth J. Bartschi,
for the appellee (defendant).
                          Opinion

   BEAR, J. The plaintiff, Caroline Hirschfeld, appeals
from the judgment of the trial court, which, in relevant
part, held her responsible for payment of 55 percent of
the costs and fees incurred by the defendant, Robert
B. Machinist, in extending and providing security for a
line of credit from First Republic Bank. On appeal, the
plaintiff claims that the court committed error when,
in allocating an escrow fund in which both parties had
an interest, it added terms to the plain language of
the parties’ separation agreement, improperly held her
responsible for 55 percent of those costs and fees, and
authorized payment thereof from the escrowed pro-
ceeds. We reverse the judgment of the trial court.
   The following facts are relevant to this appeal. As
explained by the trial court: ‘‘The marriage of the parties
was dissolved by decree . . . on February 2, 2007. At
that time, the parties filed with the court a Separation
Agreement . . . which the court approved and incor-
porated in its decree by reference. More than five years,
several appeals, and one hundred [and] fifty motions
later, the parties continue unabated their litigious
ways. . . .
   ‘‘At the time of the dissolution, the parties had two
outstanding lines of credit, one to [First] Republic Bank
in the amount of $990,400 and another to Citibank in
the amount of $595,000. Each line carried interest. The
parties agreed that the [plaintiff] would pay 55 [percent]
and the [defendant] 45 [percent] of the principal of each
loan from their respective shares of the proceeds from
the sales of the Greenwich and St. Barth[elemy] proper-
ties. In addition, while the [defendant] would continue
to pay the monthly interest on these loans until such
time as ‘the liabilities are extinguished,’ he would be
entitled to a credit from the [plaintiff] in the amount
of 55 [percent].’’
   On October 26, 2010, the defendant filed a motion
for order with the trial court stating that the property
in Vermont and in Greenwich had been sold, but that
the property in St. Barthelemy still was for sale. The
motion provided that the proceeds from the sales had
been divided pursuant to the agreement, but that
$45,468.27 remained in escrow, and the defendant
requested that the court make a determination as to
the proper allocation of the escrow. On April 9, 2012,
the defendant amended his prayer for relief, requesting
that the court award attorney’s fees and any other equi-
table or legal relief that was warranted. The court held
a series of hearings on this motion and several other
motions that were pending before it. Specifically related
to this motion, the defendant presented evidence that
because of the delay in selling the properties, much of
which he attributed to the plaintiff’s behavior in ‘‘seri-
ally disrupt[ing] the sale of [the] property over a period
of three and a half years,’’ he incurred $26,774 in costs
and fees as a result of his need to enter into a secured
contract with First Republic Bank on the line of credit
he had with that bank. He explained that First Republic
Bank wanted some security for the line of credit, which
previously had been unsecured; that he secured the debt
with another of his homes, not related to the dissolution
action; and that he incurred costs and fees in doing
so. He contended that the plaintiff, pursuant to the
agreement, was responsible for 55 percent of those
costs and fees. In response, the plaintiff argued that
the defendant had entered into this new secured line
of credit with the bank on his own, that the agreement
did not contain any provision requiring her to pay addi-
tional costs and fees incurred by the defendant, and
that she was not responsible for those costs and fees.
   The court issued its memorandum of decision on
August 3, 2012, finding in relevant part that there
remained a ‘‘home equity line balance’’ in the amount
of $26,774, together with interest, on the bank line of
credit, and that both parties were obligated to pay this
pursuant to paragraphs 6.8 and 6.9 of the agreement.
The court explained that pursuant to the agreement, the
defendant bore the sole responsibility of maintaining a
line of credit with First Republic Bank, with the under-
standing that he would be reimbursed for 55 percent
of his expenditures. The court further explained that
this balance was due to the costs and fees incurred by
the defendant when he was required to enter into a
secured line of credit with First Republic Bank to
extend the unsecured line of credit that he was required
to maintain under the parties’ agreement, and that the
need for this extension was due in large part to the
actions of the plaintiff, which resulted in substantial
delays in selling the properties. Accordingly, the court
ordered that the plaintiff was responsible for 55 percent
of the balance on the secured line of credit, along with
any interest and late fees that the plaintiff had paid on
the lines of credit. This appeal followed.
   On appeal, the plaintiff claims that the court commit-
ted error when it added terms to the plain language of
the agreement and improperly held her responsible for
a portion of the costs and fees incurred by the defendant
when he entered into a secured line of credit with First
Republic Bank. We agree.
   ‘‘It is well established that a separation agreement,
incorporated by reference into a judgment of dissolu-
tion, is to be regarded and construed as a contract
. . . . Accordingly, our review of a trial court’s inter-
pretation of a separation agreement is guided by the
general principles governing the construction of con-
tracts. . . . 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. . . . If a contract is unambiguous
within its four corners, the determination of what the
parties intended by their contractual commitments is
a question of law. . . . When the language of a contract
is ambiguous, [however] the determination of the par-
ties’ intent is a question of fact, and the trial court’s
interpretation is subject to reversal on appeal only if it
is clearly erroneous. . . . In interpreting contract
items, we have repeatedly stated that the intent of the
parties is to be ascertained by a fair and reasonable
construction of the written words and that the language
used must be accorded its common, natural, and ordi-
nary meaning and usage where it can be sensibly applied
to the subject matter of the contract.’’ (Citations omit-
ted; internal quotation marks omitted.) Hirschfeld v.
Machinist, 137 Conn. App. 690, 694–95, 50 A.3d 324,
cert. denied, 307 Conn. 939, 56 A.3d 950 (2012).
  For purposes of this appeal, three paragraphs of the
agreement are claimed to be relevant. Each of the para-
graphs is contained within Article VI of the agreement,
which concerns the equitable division of assets. Para-
graph 6.27 provides: ‘‘The parties shall each be responsi-
ble for the debts and liabilities shown on their
respective financial affidavits and they shall share the
balance of the First Republic [Bank] and Citibank loans,
with the Wife paying 55 [percent] and the Husband
paying 45 [percent]; except that the parties shall be
equally responsible for the first $430,000 of the amount
borrowed from Defendant’s mother by the Defendant.
The timing of payments of said liabilities shall be made
pursuant to Paragraphs 6.9 (b) and 6.9 (c).’’1
   Paragraph 6.8 provides: ‘‘Upon the sale of any or
all of the properties, all closing costs shall be paid 55
[percent] by the Wife and 45 [percent] by the Husband,
including any mortgage balances, home equity line bal-
ances, real estate taxes, attorney fees, recording fees,
typical and customary expenses for sale as determined
in the jurisdiction where the property has been located.’’
  Paragraphs 6.9 (a) and (b) provide: ‘‘(a) The net pro-
ceeds remaining shall be divided 55 [percent] to the
Wife and 45 [percent] to the Husband. Each of the
parties shall pay such federal, state and foreign taxes
as may be imposed by any appropriate taxing authority
in direct proportion to the percentage of the net pro-
ceeds received by the parties. The Wife shall be obli-
gated to pay 55 [percent] of such taxes assessed and the
Husband shall be obligated to pay 45 [percent] thereof.
   ‘‘(b) From their respective net proceeds, the Wife
shall be obligated to pay 55 [percent] and the Husband
shall be obligated to pay 45 [percent] of the First Repub-
lic [Bank] liability ($990,400) and the Citibank liability
($595,000). Accordingly, simultaneously at the closing
of the Greenwich and St. Barth[elemy] property, which-
ever closing shall first occur, the Wife shall pay First
Republic [Bank] $544,720 and the Husband shall pay
First Republic [Bank] $445,680. In addition and at the
same time, the Wife shall pay Citibank $327,250 and
the Husband shall pay Citibank $267,750. The Wife shall
be obligated to pay 55 [percent] and the Husband shall
be obligated to pay 45 [percent] of the interest associ-
ated with these liabilities for the time period from Janu-
ary 1, 2007 and until such time as the liabilities are
extinguished. The Husband shall continue to pay the
interest monthly and he shall receive a credit for 55
[percent] of the amount he paid against the sum owed
to the Wife as described on the attached Schedule A.’’
   The plaintiff contends that there is no obligation con-
tained within the clear and unambiguous language of
the relevant portions of the agreement that requires
her to pay for the costs and fees associated with the
defendant’s new secured line of credit from First Repub-
lic Bank. The defendant argues that ‘‘the principles of
contract interpretation demonstrate that the plaintiff is
responsible for a portion of the principal, interest and
remaining balance pursuant to the plain language of the
parties’ separation agreement.’’ Accordingly, he argues,
the court correctly determined that the agreement
required him to maintain a line of credit with First
Republic Bank and, read as a whole, the agreement
also required the parties to share, proportionally, the
expenses associated therewith, which remain as a ‘‘bal-
ance’’ on the line of credit. We agree with the plaintiff.2
   The portions of the integrated agreement that the
defendant cites in support of his argument and in sup-
port of the court’s decision simply do not set forth the
requirement that the plaintiff pay the costs and fees
associated with the defendant’s unanticipated refinanc-
ing of the unsecured line of credit by obtaining a new
secured line of credit from First Republic Bank.3 Para-
graph 6.27 of the agreement provides in relevant part
that the parties shall share the balance of the First
Republic Bank loan, with the plaintiff paying 55 percent
and the defendant paying 45 percent, and that the timing
of those payments be made in accordance with para-
graph 6.9 (b). Paragraph 6.9 (a) provides in relevant
part that the remaining net proceeds remaining after
the property sales shall be divided 55 percent to the
plaintiff and 45 percent to the defendant and that the
parties are responsible for the payment of federal, state
and foreign taxes that may be imposed according to
their respective percentages. Paragraph 6.9 (b) provides
in relevant part that the plaintiff is obligated to pay 55
percent, and the 45 percent, of the interest associated
with the First Republic Bank liability ($990,400) for the
time period from January 1, 2007, and until such time
as that liability is extinguished. The defendant was
responsible for the payment of monthly interest, but
he was entitled to receive a credit for 55 percent of the
amount he paid against the sum owed to the plaintiff.
The relevant portion of paragraph 6.8 provides that,
from their respective shares of the property sales, each
party shall pay, proportionally, all closing costs, includ-
ing any mortgage balances, home equity line balances,
real estate taxes, attorney fees, recording fees, and cus-
tomary sale expenses.
   Considering the plain language of the relevant terms
of the agreement, we conclude that the costs and fees
incurred in connection with the defendant’s refinancing
of the unsecured line of credit by obtaining a new
secured line of credit from First Republic Bank were
not included in the delineated closing costs set forth
in paragraph 6.8 related to the sales of the parties’
properties, nor were any closing costs and fees in con-
nection with any subsequent refinancing provided for
in paragraphs 6.9 or 6.27 of the agreement. We also
conclude, therefore, that the court erred in holding the
plaintiff responsible, pursuant to either paragraph 6.8,
6.9 or 6.27 of the agreement, for 55 percent of the costs
and fees incurred by the defendant in refinancing the
unsecured line of credit by obtaining a new secured
line of credit from First Republic Bank, an event not
referred to in that agreement.
  The judgment is reversed and the case is remanded
for further proceedings not inconsistent with this
opinion.
   In this opinion SHELDON, J., concurred.
   * The listing of judges reflects their seniority status on this court as of
the date of oral argument.
   1
     Paragraph 6.9 (c) concerns the amount borrowed from the defendant’s
mother by the defendant and is not relevant to this appeal.
   2
     Although our conclusion facially may appear to be inequitable because
the defendant’s alleged necessity to secure the First Republic Bank line of
credit was found by the court to have occurred, in part, as a result of the
delays caused by the plaintiff, the trial court’s decision and the defendant’s
arguments before the trial court in support of his motion were based on
their interpretations of what they separately have determined to be the
relevant terms of the agreement, and not on equitable considerations or on
whether the plaintiff’s actions violated the judgment or any other order of
the court, thus causing the defendant to incur additional or unnecessary
costs and fees. It is clear that the court found that the delay in the sale of
the properties, in part due to the actions of the plaintiff, resulted in the
defendant’s need to enter into a new secured line of credit, or risk default, and
that his actions were ‘‘reasonable.’’ The court’s decision and the defendant’s
motion and arguments related thereto were based on the language of the
agreement, which is subject to our plenary review on appeal.
   Although the dissent raises the doctrine of good faith and fair dealing as
its reason for concluding that the trial court’s judgment should be affirmed,
this doctrine was not raised by the defendant during trial nor did the court
invoke the doctrine at any time. Accordingly, the plaintiff has never had an
opportunity to be heard on the relevance or irrelevance of the doctrine.
The dissent seeks to hold the plaintiff legally responsible under a theory
that was never pleaded, argued or addressed by the trial court and against
which the plaintiff never had an opportunity to defend. The defendant argued
at trial that the language of the agreement required the plaintiff to pay 55
percent of his costs and fees, and he maintained that argument on appeal.
Despite amending the prayer for relief in his motion for order to include
equity, the defendant never invoked the doctrine of good faith and fair
dealing and proceeded only on the basis that the plain language of the
agreement required the plaintiff to pay 55 percent of the costs and fees he
incurred in refinancing his home to provide for a secured line of credit.
   In any event, the doctrine is inapplicable in this case because the defendant
did not allege the plaintiff’s bad faith: ‘‘To constitute a breach of [the implied
covenant of good faith and fair dealing], the acts by which a defendant
allegedly impedes the plaintiff’s right to receive benefits that he or she
reasonably expected to receive under the contract must have been taken
in bad faith. . . . Bad faith in general implies both actual or constructive
fraud, or a design to mislead or deceive another, or a neglect or refusal to
fulfill some duty or some contractual obligation, not prompted by an honest
mistake as to one’s rights or duties, but by some interested or sinister
motive. . . . Bad faith means more than mere negligence; it involves a
dishonest purpose. . . . De La Concha of Hartford, Inc. v. Aetna Life Ins.
Co., 269 Conn. 424, 432–33, 849 A.2d 382 (2004).’’ (Emphasis in original;
internal quotation marks omitted.) TD Bank, N.A. v. J & M Holdings, LLC,
143 Conn. App. 340, 348, 70 A.3d 156 (2013). ‘‘If the plaintiff fails to set forth
factual allegations that the defendant acted in bad faith, a claim for breach
of the implied covenant [of good faith and fair dealing] will not lie.’’ (Internal
quotation marks omitted.) Id., 349.
   Additionally, we note that although the court may have found that the
defendant incurred costs and fees because he needed to secure the applica-
ble line of credit due, in part, to the delays caused by the plaintiff, the
defendant also testified that he chose to refinance his home rather than
provide cash collateral as security for the line of credit and that he did so
without the knowledge of the plaintiff. He further testified that the equity
line of credit on his home was still in existence at the time of trial and that
the line continued to have an availability of one million dollars.
   3
     The plaintiff acknowledged at trial that she was responsible for 55 percent
of the original $990,400 debt and the interest on the line of credit: ‘‘With
regard to [the plaintiff’s] responsibil[ity] for the interest, yes. Is she responsi-
ble for the interest on the unsecured debt and the secured debt, yes, she
is. You don’t have to decide that. We concede it. We’re not saying that
because the debt changed and became secured and it has a different account
number that we care, we don’t. It’s the same $990,000.’’
