*1 Diane A. Scoville v. Homer G. Scoville Loiselle, Bogdanski, Speziale, Peteks Js. Argued October 4 decision released November Wesley Horton, W. for the appellant (plaintiff). Gary O. Olson, for the appellee (defendant). J. The marriage Diane plaintiff, Speziale, A. and the Scoville, defendant, Homer G. Scoville, was dissolved on July 12,1976 Thim, John B. {Hon. state referee). inter included, alia, following regarding alimony: “The defendant shall pay $100.00 per week for a three years from the date of this memorandum. At the end of the three year period, payment order of termi- nate.”
The sole on this issne whether that ali- appeal mony order modifiable. of entered law 1977, the September plaintiff 24, 1978,
school as a full-time student. On October she a filed motion for modification of seek- alimony ing to have the duration of the alimony payments The extended until the bar passes she examination. by for plaintiff’s motion modification was denied the of a proper court. issue whether there was in to of a substantial circumstances showing change trial was not the court justify reached, modification change concluded that in circumstances having any ... alimony was not relevant “since the award one for of time and as such is an a specific period of in not modifiable.” award and alimony gross to court the denial has this plaintiff appealed and has alimony motion her for modification original the ali- raised issue whether only the order is modifiable.1 mony attempted appeal on to raise issue The defendant has voluntary to alleged employment become whether the cessation change a in circumstances a full-time student constitutes prop alimony is not justifying of the order. This issue modification he by defendant; erly appeal filed us. No was before cross find assigned to merely (1) as the refusal of the court below error: facts; overruling law certain of his claim of (2) alimony was plaintiff’s denial of the motion for modification leaving of one’s predicated voluntary on the determination that employment change in does a material circumstances not constitute alimony. justifying a not July 1, are Court effective Supreme The rules of the July finding applicable prior to to this was filed appeal because July 1978, 3166, 1979. as amended to take effect Book, Practice prejudiced by allowing the defendant 1979. The be would assign trial make certain now to as the failure of the court to error A.2d Price, 512-13, 294 conclusion of law. Rizzo 541 (1972). forth requires trial to set “‘Practice Book court 3027] [§ questions “necessary finding may present such be facts as Periodic or is indefinite to amount duration. Section 46b-86 of the General Statutes in relevant provides and to part: Unless “(a) extent the decree precludes modification, final for the periodic permanent or or support or support pendente lite may any time thereafter be set continued, aside, altered or said modified court upon of a showing substantial in the of either party.” (Emphasis This statute added.) authorizes the modification of for periodic alimony *3 the future; Sanchione v. Sanchione, 397, 173 Conn. 378 A.2d 404, 522 it (1977); also suggests legisla- tive preference favoring the of orders modifiability for periodic alimony. to the According statutory language, the decree itself must modifica- preclude tion for this relief to be unavailable. sum
Lump
alimony, unlike
is
periodic alimony,
a final
judgment which cannot be modified even
should there be a substantial
circum-
appellant
which the
desires reviewed.” The court is not expected,
required,
speculate
much less
to
as to what
appellees
issues the
might also wish to have reviewed
appellant’s
incident
to the
appeal.
appellant
. . .
in such
adequately
[A]n
circumstances is not
protected by
right
to
reply
file a
brief ....’”
Id., 512.
The Iliaeo court continued:
appellee did
assign
not
“[T]he
as
error the court’s erroneous
law,
conclusion of
rather,
but
the court’s
failure to make certain conclusions. This
situation is
preju
appellant.
dicial to the
. . .
[Ujnder
procedure
Connecticut
if the
appellee’s
finding
counter
carries indications that he
trying
is
insert extraneous issues in
appeal,
appellant
given
oppor
is
no
tunity to file a 'counter
finding.’
counter
appellant
prevented
is
presenting
facts bearing on the court’s failure to arrive at
particular conclusions. The appellant, having
opportunity
had no
to introduce facts into
finding
support
would
the court’s
action, the failure to file a
appeal
cross
prejudicial
and fatal.”
Id., 513; see also Duksa Middletown,
v.
124, 129-30,
Conn.
defendant alimony original nonmodifiable that the tend order respects; position in an extension of all his that three-year alimony beyond period what the super- interpretation not render barred.2 Our does fluous the order. second sentence the placing a view time Rather, we that sentence as alimony payments no inter- limitation on the should vening change prior occur material in circumstances reached and thereto. trial court should have decided the issue of whether a substantial there was change justifying in circumstances modification order. 9; Briefs, pos. brief A 712 Eee. & 2. Defendant’s aside and is set is error, There according proceeded to be with case is remanded law. Bogdanski and Peters, Loiselle,
In this opinion Js., concurred. (dissenting). I cannot
Arthur H. J. agree majority’s “[w]e conclusion that with regard- ambiguous are confronted here an order with ing alimony.”1 agree I do that this order While clearly permits a in the event modification amount that a circumstances intervenes years within three of the date of the I cannot order, agree may that the order be modified so as to extend alimony payments beyond three-year life. (a) pro-
Section 46b-86
of the General Statutes
pertinent part:
vides in
extent
“Unless and to the
precludes
any
the decree
final
modification,
periodic payment
permanent
order for the
ali-
mony
may
. . .
time
continued,
thereafter be
upon
set
altered or
aside,
modified
said court
showing
of a substantial
in the party.”
(Emphasis added.)
my
either
view,
majority
upon
eases,
relies
two
Easton v.
(1977),
Lasprogato
Lasprogato,
510,
282 precludes language modi- decree of the referee’s alimony beyond three
fication that would extend years. part decree, is of the order in issue,
The which pay the “The defendant shall as follows: reads period per for a of week $100.00 years date this memorandum. three of of year period, the At the end the three (Emphasis alimony shall terminate.” order of added.) judgment other “A is to construed like be factor written instruments. The determinative parts gathered from all the intention of the court as judgment. given of the Effect must be clearly implied to that which as well as expressed.” Cooper Cooper, 713 v. 158 712, N.W.2d (Iowa 1968), quoting Iowa Whittier, Whittier v. (1946). The same rules 655, 663, N.W.2d meaning apply ascertaining interpretation every ascertaining meaning a inas writing. App. 890, 3d Lesh, other Lesh v. 8 Cal. Rptr. (1970). interpreting decree, 87 Cal. particularly proceeding, one in a issued divorce object important carry purpose is to out the Pope, Pope Ill. intent of the court that issued it. language App. (1972). 3d N.E.2d 9 935, 937, 289 meaning ordinary given of an order must be meaning special unless technical or intended. Cf. Perruccio v. Allen, (1968) (construing language of con tract) (construing (a) ; General 1-1 lan Statutes guage statutes). weekly pay referee ordered defendant to in the amount “for a three $100
years from of this the date then memorandum.” He year period, stated: “At end of the *6 order of terminate.” limitation of the order is it is men- three-year clear; tioned not but twice. once, Moreover, language “shall terminate” mandatory, opposed per- Norwalk, missive. See Akin Conn. 68, A.2d means we have (1972). “Terminate,” said, Bank to end.” Merchants to “come to a limit in time; & Trust Co. v. New Canaan Historical Society, Third A.2d 696 (1947); Webster, New International Dictionary. language plain of the order demonstrates the referee intended end of terminate at the years. to that Thus, extent, decree precluded modification. Calig C. [Carolyn
Anita S. v. Leonard Schrank S. Schrank et Leonard al., (Estate Coexecutors
C. Substituted Schrank), Defendants] J., Loiselle, Bogdanski, C. Cotter, Js. Peters Argued 27, 1979 October released November 10 decision