Fazio v. Fazio ( 2020 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
MADELINE G. FAZIO v. MICHAEL A. FAZIO
(AC 42635)
DiPentima, C. J., and Lavine and Bright, Js.
Syllabus
The plaintiff, whose marriage to the defendant previously had been dis-
solved, 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 (§ 46b-86
(b)), or May 31, 2013, whichever event occurred first. The trial court
concluded that the plaintiff was cohabitating with another person as
defined by § 46b-86 (b) and determined that article 3.2 (a) of the separa-
tion agreement was clear and unambiguous and that cohabitation
required the immediate termination of alimony. The plaintiff appealed
to this court, which reversed the trial court’s judgment and ordered a
remand, concluding that article 3.2 (a) was ambiguous and that findings
of fact were necessary as to the parties’ intent regarding whether that
article incorporated the remedial aspects of § 46b-86 (b). Thereafter, on
remand, the trial court, following an evidentiary hearing, 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, and, accordingly, it granted the defendant’s
motion to modify or to terminate alimony and terminated his obligation
to pay alimony. Held:
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 § 46b-86 (b) into
article 3.2 (a) of the separation agreement, the plaintiff no longer had
the ability to raise the cohabitation finding as an issue on remand, and,
therefore, the trial court properly construed the limited remand order
and properly determined that it was bound by the unchallenged finding
of cohabitation.
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 § 46b-86 (b)
was without merit: that court properly followed this court’s remand
order and, although it did not state specifically that the parties intended
that the remedial aspects of § 46b-86 (b) would not apply if the plaintiff
cohabitated, it was not required to do so; moreover, the court, on the
basis of the evidence presented and its credibility determinations, prop-
erly considered the intent of the parties in drafting article 3.2 (a) and
concluded that they intended the immediate, nondiscretionary, termina-
tion of alimony in the event of the plaintiff’s cohabitation, and implicit
in that finding is that the parties did not intend that the remedial aspects
of § 46b-86 (b) would apply, and the plaintiff did not claim that the
court’s findings were clearly erroneous or unsupported by the evidence
presented at the hearing on remand.
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.
Argued May 11—officially released July 28, 2020
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Stamford-Norwalk, where the court, Hon. Stan-
ley Novack, judge trial referee, rendered judgment dis-
solving the marriage and granting certain other relief
in accordance with the parties’ separation agreement;
thereafter, the court, Emons, J., granted the defendant’s
motion to modify or to terminate alimony, and the plain-
tiff appealed to this court, DiPentima, C. J., and Pres-
cott and Harper, Js., which reversed the trial court’s
judgment and remanded the matter for further proceed-
ings; subsequently, the court, Colin, J., granted the
defendant’s motion to modify or to terminate alimony,
and the plaintiff appealed to this court. Affirmed.
Joseph T. O’Connor, for the appellant (plaintiff).
Kevin F. Collins, for the appellee (defendant).
Opinion
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 General
Statutes § 46b-86 (b), (2) failing to make a factual find-
ing as to the parties’ intent regarding whether article
3.2 (a) of their separation agreement incorporated the
remedial aspects of § 46b-86 (b), and (3) exceeding the
scope of the remand order in the prior appeal of this
case; see Fazio v. Fazio, 162 Conn. App. 236, 250–51,
131 A.3d 1162, cert. denied, 320 Conn. 922, 132 A.3d
1095 (2016) (Fazio I); by making factual findings that
were contrary to the clear and unambiguous language
of article 3.2 (b), essentially reforming that article of
the agreement, when that article was not at issue. We
affirm the judgment of the trial court.
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 mar-
riage had broken down irretrievably with no hope of
reconciliation. On May 19, 2006, the court rendered
judgment dissolving the parties’ marriage. The judg-
ment 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 ali-
mony 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: ‘Com-
mencing on June 1, 2013, the [defendant] shall pay to
the [plaintiff] . . . unallocated alimony and child sup-
port in cash until the death of either party, the remar-
riage 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]
right to seek child support shall not be precluded if the
[defendant] is unemployed.’
‘‘On July 5, 2012, the defendant filed a postjudgment
motion to modify or to terminate unallocated alimony
and child support pursuant to § 46b-86 (b)2 on the
ground that the plaintiff was cohabitating with another
person. . . . The plaintiff subsequently filed a motion
for contempt on the ground that the defendant had
failed to pay unallocated alimony and child support as
provided for in the separation agreement. After a hear-
ing on the motions and the submission of posthearing
briefs, [Judge Emons] denied the plaintiff’s motion for
contempt and granted the defendant’s motion to modify
or terminate unallocated alimony and child support.
The court found that the plaintiff had been living with
another person, Adam Monges, from December, 2011
to July, 2012, and that this living arrangement had
changed the plaintiff’s circumstances as to alter her
financial needs because Monges had paid her between
$300 and $350 per week. On the basis of those findings,
the court concluded that the plaintiff was cohabitating
with another person as defined by § 46b-86 (b).’’ (Foot-
notes added and omitted.) Fazio I, supra, 162 Conn.
App. 238–40.
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 termi-
nation of alimony, and, accordingly, it terminated the
defendant’s obligation to pay alimony effective Decem-
ber, 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
§ 46b-86 (b) was to allow the court to exercise its reme-
dial powers pursuant to § 46b-86 (b) and to consider
other remedies, such as the temporary suspension or
modification of alimony. Id., 242–43. The plaintiff, on
appeal, did not mount a challenge to the court’s determi-
nation that she had cohabitated as defined by § 46b-
86 (b).
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 § 46b-86 (b) were
necessary, and we remanded the case to the trial court
with direction ‘‘to determine the intent of the parties
after consideration of all the available extrinsic evi-
dence and the circumstances surrounding the entering
of the agreement.’’ Id., 250–51. On remand, the case
was assigned to Judge Colin, who proceeded to hold
an evidentiary hearing on the parties’ intent in drafting
article 3.2 (a). After considering the evidence presented,
the court held that the parties had intended, under arti-
cle 3.2 (a), that alimony would terminate if the plaintiff
cohabitated, and it granted the defendant’s motion to
modify or to terminate alimony, terminating the defen-
dant’s obligation to pay alimony, effective December,
2011. This appeal followed. Additional facts will be set
forth as necessary.
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 suc-
cessfully 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 man-
date 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 judg-
ment 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 confor-
mity with the views expressed therein.’’ (Citations omit-
ted; emphasis omitted; internal quotation marks omit-
ted.) 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 termi-
nated, or whether the parties intended that the court
be permitted to exercise the equitable and remedial
powers set forth in . . . § 46b-86 (b) to consider sus-
pending or modifying alimony instead of irrevocably
terminating it.’’ Fazio I, supra, 162 Conn. App. 237. We
then concluded that ‘‘the 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 § 46b-86 (b),’’ and
we remanded the case to the trial court with direction
‘‘to determine the intent of the parties after consider-
ation of all the available extrinsic evidence and the
circumstances surrounding the entering of the agree-
ment.’’ Id., 250–51.
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 § 46b-86 (b). The opinion was clear in setting forth
the scope of the remand order. This court did not order
a new trial on the defendant’s motion to modify or to
terminate alimony.
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 hesi-
tate 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 obliga-
tory 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 § 46b-86 (b) applied
to article 3.2 (a) of the separation agreement. After this
court issued a limited remand order in Fazio I, the
plaintiff no longer had the ability to raise the cohabita-
tion finding as an issue on remand. The trial court prop-
erly construed the limited remand set forth in Fazio I,
and it properly determined that it was bound by Judge
Emons’ unchallenged finding of cohabitation.
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 § 46b-86 (b)’’ but, instead, found
that ‘‘the parties had intended that [the] court should
be without discretion to deny the defendant’s request
for termination once the court found that the plaintiff
lived with another person under circumstances [that]
altered her financial needs.’’ The defendant argues that
‘‘[t]he . . . court did make factual findings of the par-
ties’ intent regarding article 3.2 (a) thereby rendering
the remedial aspects of § 46b-86 (b) . . . moot.’’ We
conclude that the court properly followed the remand
order of this court, and it determined that the parties
had intended for immediate termination of alimony if
the plaintiff cohabitated.
‘‘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.) Ginsb-
erg & 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 con-
cluded 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 § 46b-
86 (b),’’ and we remanded the case to the trial court
with direction ‘‘to determine the intent of the parties
after consideration of all the available extrinsic evi-
dence and the circumstances surrounding the entering
of the agreement.’’ Fazio I, supra, 162 Conn. App.
250–51.
On remand, Judge Colin held a hearing and consid-
ered the evidence presented by the parties. He specifi-
cally 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 plain-
tiff’s cohabitation would result in the immediate termi-
nation of her alimony under article 3.2 (a) of the separa-
tion agreement. Although Judge Colin did not state
specifically that the parties intended that the remedial
aspects of § 46b-86 (b) would not apply if the plaintiff
cohabitated, he was not required to do so. Judge Colin,
on the basis of the evidence presented, properly consid-
ered the intent of the parties in drafting article 3.2 (a),
and he concluded that they intended the immediate,
nondiscretionary, termination of alimony in the event
of the plaintiff’s cohabitation. Implicit in that finding is
that the parties had no intent that the remedial aspects
of § 46b-86 (b) would apply. Significantly, the plaintiff
does not claim that Judge Colin’s findings were clearly
erroneous or unsupported by the evidence presented
at the remand hearing. Accordingly, the plaintiff’s claim
has no merit.
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 illogi-
cal 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 determin-
ing 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 ali-
mony 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, which-
ever 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 Novem-
ber 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
further argues that Judge Colin, on remand in Fazio I,
was ordered by this court to determine the intent of
the parties regarding only article 3.2 (a) on the basis
that article 3.2 (a) was ambiguous. She contends that
Judge Colin did not limit himself to the dictates of the
remand order but that he also substantively reformed
the clear and unambiguous language of article 3.2 (b)
by finding that the list of events resulting in the termina-
tion of alimony in that particular article, which concerns
only the second period of alimony, contained ‘‘a typo-
graphical error,’’ and that he then improperly termi-
nated alimony for both periods. We disagree that the
court terminated alimony for both periods.
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 lan-
guage of 3.2 (a) of the separation agreement, arguing:
‘‘Article III provides the terms for [a]limony and [s]up-
port 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 inter-
preted 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 state-
ment 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 the opinion the other judges concurred.
1
The children all have reached the age of majority, and child support no
longer is at issue.
2
General Statutes § 46b-86 (b) provides: ‘‘In an action for divorce, dissolu-
tion of marriage, legal separation or annulment brought by a spouse, in
which a final judgment has been entered providing for the payment of
periodic alimony by one party to the other spouse, the Superior Court may,
in its discretion and upon notice and hearing, modify such judgment and
suspend, reduce or terminate the payment of periodic alimony upon a show-
ing that the party receiving the periodic alimony is living with another person
under circumstances which the court finds should result in the modification,
suspension, reduction or termination of alimony because the living arrange-
ments cause such a change of circumstances as to alter the financial needs
of that party. In the event that a final judgment incorporates a provision of
an agreement in which the parties agree to circumstances, other than as
provided in this subsection, under which alimony will be modified, including
suspension, reduction, or termination of alimony, the court shall enforce
the provision of such agreement and enter orders in accordance therewith.’’
3
This court explained: ‘‘The plaintiff’s sole claim on appeal is that the
court improperly interpreted article 3.2 (a) of the separation agreement to
require termination in the event that the plaintiff cohabitated with another
person, rather than to allow the court to exercise its remedial powers
pursuant to § 46b-86 (b) and consider other remedies such as the temporary
suspension or modification of alimony.’’ Fazio I, supra, 162 Conn. App.
242. We also explained that ‘‘[t]he plaintiff [did] not challenge the court’s
determination that she cohabitated as defined by § 46b-86 (b).’’ Id., 240 n.2.