Fazio v. FazioFazio v. Fazio
The plaintiff, whose marriage to the defendant previously had been dissolved, appealed to this court from the judgment of the trial court granting the defendant’s motion to modify or to terminate alimony. Pursuant to article 3.2 (a) of the parties’ separation agreement, which had been incorporated into the dissolution judgment, the defendant was required to pay the plaintiff unallocated alimony until, among other things, the cohabitation of the plaintiff pursuant to statute (
1. The plaintiff could not prevail on her claim that the trial court erred by concluding that it was bound by the finding of cohabitation made by a prior judge in the case; the plaintiff did not challenge that finding in her prior appeal, and, after this court issued its remand order in that appeal, which was limited to the consideration of whether the parties had intended to incorporate the remedial aspects of
2. The plaintiff’s claim that the trial court erred by failing to make a factual finding as to the parties’ intent regarding whether article 3.2 (a) of the separation agreement incorporated the remedial aspects of
3. The plaintiff’s claim that the trial court erred by exceeding the scope of the remand order in the prior appeal when it made unnecessary and binding factual findings concerning article 3.2 (b) of the separation agreement was unavailing, as that court’s consideration of article 3.2 (b) was for the limited purpose of ascertaining the parties’ intent as to article 3.2 (a) and nothing more.
BRIGHT, J. The plaintiff, Madeline G. Fazio, appeals from the judgment of the trial court, Colin, J., granting the motion filed by the defendant, Michael A. Fazio, to modify or to terminate his alimony obligation. On appeal, the plaintiff claims that the court erred by (1) holding that it was bound by the prior finding of the trial court, Emons, J., of cohabitation pursuant to
The following facts and procedural history inform our review of the issues on appeal. ‘‘The parties were married on May 7, 1988, and they subsequently had three children.1 On February 9, 2005, the plaintiff filed a marital dissolution action on the ground that the marriage had broken down irretrievably with no hope of reconciliation. On May 19, 2006, the court rendered judgment dissolving the parties’ marriage. The judgment incorporated by reference a separation agreement that the parties had signed on May 18, 2006, and that the court found to be ‘fair and equitable.’
‘‘Article 3.2 (a) of the separation agreement provides in relevant part: ‘Commencing on June 1, 2006, the [defendant] shall pay to the [plaintiff] unallocated alimony and child support in cash until the death of either party, the remarriage or cohabitation of the [plaintiff] pursuant to [§] 46b-86 (b) of the . . . General Statutes, or May 31, 2013, whichever event shall first occur . . . .’ Article 3.2 (b) provides in relevant part: ‘Commencing on June 1, 2013, the [defendant] shall pay to the [plaintiff] . . . unallocated alimony and child support in cash until the death of either party, the remarriage of the [plaintiff], or November 30, 2019 . . . .’ Additionally, article 3.6 of the separation agreement provides: ‘The [defendant’s] obligation to pay alimony and support to the [plaintiff] pursuant to [a]rticle 3.2 shall be non-modifiable by either party as to the amount and duration, except (1) that the [defendant] shall have the right to seek a modification of [the] amount of alimony and support based on the [plaintiff’s] earnings only in the event the [plaintiff] earns in excess of $100,000.00 gross per year and (2) the [plaintiff] shall have the right to seek a modification of the amount of alimony and support in the event the [defendant] is unemployed for a period of six months. The [plaintiff’s]
‘‘On July 5, 2012, the defendant filed a postjudgment motion to modify or to terminate unallocated alimony and child support pursuant to
The court also determined that article 3.2 (a) of the separation agreement was clear and unambiguous, and that cohabitation would result in the immediate termination of alimony, and, accordingly, it terminated the defendant’s obligation to pay alimony effective December, 2011, the month during which the plaintiff began cohabitating. Id., 240–42. The plaintiff appealed from the judgment, claiming that the court incorrectly had interpreted article 3.2 (a) of the separation agreement to require the immediate termination of alimony. Id., 242. She contended that the parties’ incorporation of
In Fazio I, this court concluded that article 3.2 (a) of the separation agreement was ambiguous and that findings of fact as to the parties’ intent regarding whether article 3.2 (a) of the separation agreement incorporated the remedial aspects of
I
The plaintiff claims that Judge Colin erred when he concluded that he was bound by the prior finding of cohabitation made by Judge Emons. She argues that, when this court reversed the judgment in Fazio I, it did not limit the issues on remand but, rather, it reversed Judge Emons’ decision in toto. Accordingly, she argues, it does not matter that she did not challenge specifically Judge Emons’ finding of cohabitation because she successfully obtained reversal of the entire judgment. We disagree.
‘‘Determining the scope of a remand is a matter of law . . . [over which] our review is plenary.’’ (Internal quotation marks omitted.) State v. Tabone, 301 Conn. 708, 713–14, 23 A.3d 689 (2011). ‘‘In carrying out a mandate of this court, the trial court is limited to the specific direction of the mandate as interpreted in light of the opinion. . . . This is the guiding principle that the trial court must observe. . . . Compliance means that the direction is not deviated from. The trial court cannot adjudicate rights and duties not within the scope of the remand. . . . It is the duty of the trial court on remand to comply strictly with the mandate of the appellate court according to its true intent and meaning. No judgment other than that directed or permitted by the reviewing court may be rendered, even though it may be one that the appellate court might have directed. The trial court should examine the mandate and the opinion of the reviewing court and proceed in conformity with the views expressed therein.’’ (Citations omitted; emphasis omitted; internal quotation marks omitted.) Wendland v. Ridgefield Construction Services, Inc., 190 Conn. 791, 794–95, 462 A.2d 1043 (1983).
In Fazio I, this court was called on, by the limited issue raised by the plaintiff in her appeal,3 ‘‘to interpret a separation agreement incorporated into a dissolution judgment to determine whether the parties intended by their agreement that, in the event of cohabitation, alimony must be immediately and irrevocably terminated, or whether the parties intended that the court be permitted to exercise the equitable and remedial powers set forth in . . .
A thorough examination of this court’s opinion in Fazio I leads us to conclude that the remand order in that appeal was limited to the consideration of whether the parties had intended to incorporate into article 3.2 (a) of the separation agreement the remedial aspects of
Moreover, the plaintiff did not challenge in Fazio I Judge Emons’ finding that she had cohabitated, which, certainly, was a finding necessary to the judgment. ‘‘It is well established that when a party brings a subsequent appeal, it cannot raise questions which were or could have been answered in its former appeals. See Hartford National Bank & Trust Co. v. Tucker, 195 Conn. 218, 222, 487 A.2d 528, cert. denied, 474 U.S. 845, 106 S. Ct. 135, 88 L. Ed. 2d 111 (1985). Failure to raise an issue in an initial appeal to this court constitutes a waiver of the right to bring the claim. Hryniewicz v. Wilson, 51 Conn. App. 440, 446, 722 A.2d 288 (1999). . . .
‘‘Furthermore, the [trial] court, on remand, [is] bound by the law of the case doctrine. Underlying the law of the case doctrine is the view that [a] judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge. . . . The doctrine provides that [w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance. . . . Wasko v. Manella, 87 Conn. App. 390, 395, 865 A.2d 1223 (2005). Intervening appellate proceedings, however, change the nature of this seemingly discretionary doctrine. [I]t is a well-recognized principle of law that the opinion of an appellate court, so far as it is applicable, establishes the law of the case upon a retrial, and is equally obligatory upon the parties to the action and upon the trial court.’’ (Internal quotation marks omitted.) Detar v. Coast Venture XXVX, Inc., 91 Conn. App. 263, 266–67, 880 A.2d 180 (2005).
The plaintiff did not challenge in the previous appeal Judge Emons’ finding that she had cohabitated. The plaintiff briefed only one issue in that appeal, namely, whether the remedial aspects of
II
The plaintiff next claims that the court ‘‘failed to make a factual finding as to the parties’ intent regarding whether article 3.2 (a) of their agreement incorporated the remedial aspects of
‘‘It is the duty of the trial court on remand to comply strictly with the mandate of [this] court according to its true intent and meaning. No judgment other than that directed or permitted by the reviewing court may be rendered, even though it may be one that [this] court might have directed. The trial court should examine the mandate and the opinion of the reviewing court and proceed in conformity with the views expressed therein.’’ (Internal quotation marks omitted.) Ginsberg & Ginsberg, LLC v. Alexandria Estates, LLC, 149 Conn. App. 160, 165, 88 A.3d 1254 (2014). We exercise a plenary standard of review in determining whether the trial court has complied with the strict mandates of a remand order. See id., 165–66.
As explained in part I of this opinion, this court concluded in Fazio I that ‘‘the [trial] court [had been] required to make a finding of fact as to the parties’ intent regarding whether article 3.2 (a) of the separation agreement incorporated the remedial aspects of
On remand, Judge Colin held a hearing and considered the evidence presented by the parties. He specifically found that the defendant’s testimony was credible and that the plaintiff’s testimony was not credible. In his written decision, after discussing the evidence, he determined that the parties had intended that the plaintiff’s cohabitation would result in the immediate termination of her alimony under article 3.2 (a) of the separation agreement. Although Judge Colin did not state
III
The plaintiff also claims that the court erred by exceeding the scope of the remand order in Fazio I when it made unnecessary and binding factual findings concerning article 3.2 (b) of the separation agreement. The defendant argues that the plaintiff’s claim is illogical because the plaintiff testified, without objection, during the remand hearing, on the meaning of article 3.2 (b), and that she, therefore, did not object to the trial court’s consideration of article 3.2 (b). We conclude that the court’s consideration of article 3.2 (b) was for the limited purpose of finding the parties’ intent as to article 3.2 (a) and nothing more.
We exercise a plenary standard of review in determining whether the trial court has complied with, or exceeded the scope of, our remand order. See, e.g., Ginsberg & Ginsberg, LLC v. Alexandria Estates, LLC, supra, 149 Conn. App. 165–66.
Article 3.2 (a) of the separation agreement provides in relevant part: ‘‘Commencing on June 1, 2006, the [defendant] shall pay to the [plaintiff] unallocated alimony and child support in cash until the death of either party, the remarriage or cohabitation of the [plaintiff] pursuant to [§] 46b-86 (b) . . . or May 31, 2013, whichever event shall first occur . . . .’’
Article 3.2 (b) of the separation agreement provides in relevant part: ‘‘Commencing on June 1, 2013, the [defendant] shall pay to the [plaintiff] . . . unallocated alimony and child support in cash until the death of either party, the remarriage of the [plaintiff], or November 30, 2019 . . . .’’ According to the parties’ separation agreement, unless a named event occurs, the first period of alimony, pursuant to article 3.2 (a), runs from June 1, 2006 to May 31, 2013, and the second period of alimony, pursuant to article 3.2 (b), runs from June 1, 2013 to November 30, 2019.
The plaintiff argues that Judge Emons terminated alimony only under article 3.2 (a) of the separation agreement and that article 3.2 (a) concerns only the first alimony period set forth in the agreement. She
In his April 25, 2014 posttrial brief to Judge Emons, in support of his motion to modify or to terminate alimony, the defendant specifically relied on the language of 3.2 (a) of the separation agreement, arguing: ‘‘Article III provides the terms for [a]limony and [s]upport and the [d]efendant, in the subject motion, relies specifically on [article] 3.2 (a) . . . .’’ (Emphasis added.) The defendant did not mention the second period of alimony under section 3.2 (b) of the parties’ separation agreement. Judge Emons, in her decision, also did not mention the second period of alimony under article 3.2 (b) but, rather, held that the defendant’s obligation to pay alimony was terminated because ‘‘the court must enforce [article] 3.2 (a) of the separation agreement effective December, 2011.’’ In reviewing Judge Emons’ decision, this court noted: ‘‘The plaintiff’s sole claim on appeal is that the court improperly interpreted article 3.2 (a) of the separation agreement . . . .’’ Fazio I, supra, 162 Conn. App. 242.
Having thoroughly examined Fazio I and Judge Colin’s decision on remand, we conclude that the statement in Judge Colin’s decision regarding article 3.2 (b) of the separation agreement was meant only to aid the court in ascertaining the parties’ intent in drafting article 3.2 (a), which this court in Fazio I had found to be ambiguous. Article 3.2 (b) was not at issue in the original trial court decision of Judge Emons. The construction of article 3.2 (b), including whether it is ambiguous, whether reformation is appropriate, or whether the plaintiff is entitled to alimony under it, was not raised before Judge Emons, was not before this court in Fazio I, was not before Judge Colin, and is not before this court presently.
The judgment is affirmed.
In this opinion the other judges concurred.