199 Conn.App. 282
Conn. App. Ct.2020Background
- Parties divorced in 2006; the dissolution judgment incorporated a separation agreement providing staged "unallocated alimony and child support" payments under articles 3.2(a) (June 1, 2006–May 31, 2013) and 3.2(b) (June 1, 2013–Nov. 30, 2019); article 3.6 made most alimony provisions nonmodifiable except in narrow circumstances.
- Article 3.2(a) tied termination of the first alimony period to death, remarriage, or the plaintiff’s cohabitation “pursuant to § 46b-86(b).”
- In 2012 the defendant moved to modify/terminate alimony under Conn. Gen. Stat. § 46b-86(b), alleging the plaintiff cohabited (Dec. 2011–July 2012); Judge Emons found cohabitation and terminated alimony effective Dec. 2011 under article 3.2(a).
- The plaintiff appealed; in Fazio I this court held article 3.2(a) was ambiguous as to whether the parties intended automatic termination or incorporation of § 46b-86(b)’s remedial discretion, and remanded for findings on the parties’ intent (limited remand).
- On remand Judge Colin held an evidentiary hearing, credited the defendant, found the parties intended immediate, nondiscretionary termination upon cohabitation, and again terminated alimony effective Dec. 2011.
- The plaintiff appealed, challenging (1) that the remand bound the court to Judge Emons’ cohabitation finding, (2) the sufficiency of factual findings regarding incorporation of § 46b-86(b), and (3) that the court exceeded the remand by addressing article 3.2(b).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court was bound by prior finding of cohabitation | Fazio: this court reversed the prior judgment in Fazio I generally, so cohabitation could be relitigated on remand | Defendant: remand was limited; plaintiff did not challenge cohabitation in Fazio I, so that finding became final for remand | Court: remand was limited to intent; plaintiff waived/chose not to challenge cohabitation in prior appeal, so trial court was bound by the unchallenged cohabitation finding |
| Whether trial court failed to make required factual finding about whether parties intended to incorporate § 46b-86(b)’s remedial discretion into article 3.2(a) | Fazio: court failed to expressly find whether remedial aspects of § 46b-86(b) were incorporated | Defendant: court made credibility findings and determined intent for immediate termination (making remedial aspects moot) | Court: Judge Colin complied with remand, made credibility and intent findings that imply the parties did not intend § 46b-86(b)’s remedial discretion to apply; plaintiff did not show those findings were clearly erroneous |
| Whether court exceeded scope of remand by addressing article 3.2(b) and effectively reforming it | Fazio: Judge Colin substantively reformed 3.2(b) (a separate period) beyond the remand concerning 3.2(a) | Defendant: plaintiff testified about 3.2(b) at the remand hearing and did not object; discussion of 3.2(b) was ancillary | Court: any consideration of 3.2(b) was limited and ancillary to ascertaining intent as to 3.2(a); 3.2(b) was not substantively adjudicated on appeal |
Key Cases Cited
- Fazio v. Fazio, 162 Conn. App. 236 (Conn. App. 2016) (prior appellate opinion finding article 3.2(a) ambiguous and ordering limited remand to determine parties’ intent)
- State v. Tabone, 301 Conn. 708 (Conn. 2011) (scope of remand is matter of law; trial court must follow appellate mandate)
- Wendland v. Ridgefield Constr. Servs., Inc., 190 Conn. 791 (Conn. 1983) (trial court must comply strictly with appellate mandate)
- Detar v. Coast Venture XXVX, Inc., 91 Conn. App. 263 (Conn. App. 2006) (appellate opinion establishes law of the case on retrial)
- Ginsberg & Ginsberg, LLC v. Alexandria Estates, LLC, 149 Conn. App. 160 (Conn. App. 2014) (plenary review whether trial court complied with remand order)
- Hartford Natl. Bank & Trust Co. v. Tucker, 195 Conn. 218 (Conn. 1985) (issues not raised in initial appeal are waived)