Marshall v. Marshall

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WILLIAM MARSHALL, JR. v. KIMBERLY
L. MARSHALL
(AC 41216)
Alvord, Elgo and Pellegrino, Js.
Syllabus
The defendant, whose marriage to the plaintiff previously had been dis-
solved, appealed to this court from the judgment of the trial court,
claiming, inter alia, that the trial court erred when it went beyond the
scope of this court’s remand order in a prior appeal involving the parties
when construing their separation agreement, which had been incorpo-
rated into the dissolution judgment, and calculating the alimony arrear-
age the plaintiff owed to the defendant. In her prior appeal to this court
from the judgment dissolving her marriage, the defendant claimed that
the dissolution court erred in calculating the plaintiff’s alimony obliga-
tion on the basis of his W-2 income without considering the K-1 distribu-
tions to him from A Co., of which he was an owner. This court concluded
that the separation agreement was ambiguous as to whether the K-1
distributions from A Co. were to be included in the plaintiff’s pre-tax
income from employment and, if so, to what extent. This court further
concluded that the dissolution court had improperly granted the plain-
tiff’s motion to modify alimony. In its rescript, this court thus reversed
the dissolution court’s granting of the plaintiff’s motion to modify ali-
mony and the court’s calculation of his alimony arrearage, affirmed the
judgment in all other respects and remanded the case to the trial court
to determine the parties’ intent and to determine the plaintiff’s alimony
arrearage accordingly. On remand, the trial court first determined that
the intent of the parties was that some K-1 distributions to the plaintiff
from A Co. should be included in the plaintiff’s pre-tax income. The court
then found that the parties had adopted the reasonable compensation
calculation to establish the plaintiff’s pre-tax income for alimony pur-
poses and modified his alimony obligation for the nearly four years
prior to the plaintiff’s motion to modify alimony. Held:
1. The trial court acted within the scope of this court’s remand order when
it used the methodology of reasonable compensation to determine the
plaintiff’s pre-tax income in the context of effectuating the parties’ sepa-
ration agreement, the relevant provisions of which this court had deter-
mined to be ambiguous: the trial court’s use of the plaintiff’s reasonable
compensation instead of his pre-tax income did not alter the terms of the
separation agreement and change the formula on which the dissolution
proceedings were premised.
2. The defendant could not prevail on her claim that the trial court erred
when it used the plaintiff’s reasonable compensation to determine his
alimony obligation, which was based on her assertion that this court’s
determination that the alimony calculation was to be made using pre-
tax income was the law of the case: because the trial court acted within
the scope of this court’s remand order, it could not have violated, and
did not fail to abide by, the principle that an appellate court’s opinion
establishes the law of the case, and, contrary to the defendant’s assertion,
this court’s affirmance of the trial court’s judgment in all respects other
than its granting of the plaintiff’s motion to modify alimony and calcula-
tion of his arrearage did not mean that the trial court correctly used his
actual income rather reasonable compensation to calculate the arrearage
and did not establish the trial court’s calculations as the law of the
case on remand; furthermore, this court’s affirmance of the trial court’s
judgment in other respects addressed the trial court’s decisions to
decline to award the defendant interest and to reject her claim that the
trial court erred in failing to find the plaintiff in contempt.
3. The defendant’s claim that the trial court improperly considered the
plaintiff’s argument, which he did not advance in prior proceedings,
that his alimony obligation should be based on his reasonable compensa-
tion was unavailing; although the defendant’s assertion rested on the
principle that an appellant who fails to brief a claim abandons that
claim, the plaintiff was the appellee in this appeal and in this court’s
decision that reversed in part the trial court’s judgment, and our Supreme
Court has declined to depart from the principle that an appellee will
not be deemed to have forfeited a claim that could have been, but was
not, brought in the context of an appellant’s appeal.
4. The trial court’s determination of the plaintiff’s pre-tax income on the
basis of his reasonable compensation was not clearly erroneous, as the
court reasonably found that the parties had adopted the reasonable
compensation calculation in their separation agreement and properly
carried that methodology forward, that determination having been sup-
ported by evidence in the record.
5. Contrary to the defendant’s claim, the trial court did not improperly
modify alimony retroactively for a period of four years prior to the
plaintiff’s motion to modify alimony, that court having interpreted and
effectuated the separation agreement’s alimony provision as it was
directed to by this court’s remand order; the trial court determined
the plaintiff’s alimony obligation for those four years, calculated the
overpayment or underpayment for each year and, after having separately
found that the plaintiff had established a substantial change in circum-
stances, reduced his alimony obligation to zero retroactive to the day
after he served the defendant with his motion to modify alimony.
Argued May 15—officially released October 6, 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 Fairfield and tried to the court, Alander, J.;
judgment dissolving the marriage and granting certain
other relief; thereafter, the court, Klatt, J., denied the
defendant’s motion for contempt and granted the plain-
tiff’s motion to modify alimony, and the defendant
appealed to this court, Beach, Sheldon and Norcott, Js.,
which reversed in part the trial court’s judgment and
remanded the case for further proceedings; subse-
quently, the court, Hon. Gerald I. Adelman, judge trial
referee, granted the plaintiff’s motion to modify alimony
and the defendant’s motion for contempt in part, and
the defendant appealed and the plaintiff cross appealed
to this court. Affirmed.
George J. Markley, for the appellant-cross appellee
(defendant).
Alexander J. Cuda, for the appellee-cross appel-
lant (plaintiff).
Opinion
ALVORD, J. The defendant, Kimberly L. Marshall,
appeals from the rulings of the trial court on her motion
for contempt and the motion of the plaintiff, William
Marshall, Jr., to modify his alimony obligation. On
appeal, the defendant claims that the court improperly
(1) exceeded the scope of this court’s remand orders
in her prior appeal,1 (2) failed to abide by the law of
the case as established in the decisions of both the trial
court and this court in her prior appeal, (3) allowed
the plaintiff to claim that his alimony obligation should
be determined using reasonable compensation when
he had not made that argument at any time prior to the
hearing on remand, (4) used reasonable compensation
as a basis for calculating the plaintiff’s alimony obliga-
tion when the parties’ separation agreement (agree-
ment) did not provide for that method, and (5) retroac-
tively modified the plaintiff’s alimony obligation for a
period of nearly four years prior to the plaintiff’s motion
to modify. We affirm the judgment of the trial court.2
The following facts, as set forth by this court in the
defendant’s prior appeal; see Marshall v. Marshall, 151
Conn. App. 638, 640, 97 A.3d 1 (2014) (Marshall I); and
procedural history are relevant to our resolution of this
appeal. ‘‘The parties were married in 1981. Four children
were born of the marriage; only one was a minor at
the time of dissolution. In 2006, the plaintiff filed a
complaint seeking dissolution of his marriage to the
defendant. In May, 2007, the court rendered judgment
of dissolution and incorporated by reference [the agree-
ment] between the parties, which the court found to
be fair and equitable.’’ Id.
Article 4 of the agreement is entitled ‘‘alimony and
child support.’’ Paragraph 4.1 provides: ‘‘For purposes
of this Article Four, ‘pre-tax income from employment’
shall only include salary and cash bonus received by
the [plaintiff] in cash (or check) from employment
before any deductions, including, but not necessarily
limited to federal, state or municipal income taxes,
social security, Medicare, insurance of any kind, or pay-
ments by the [plaintiff] to any defined contribution plan,
e.g. a 401 (k) plan. The foregoing to the contrary not-
withstanding, specifically excluded from this definition
of ‘pre-tax income from employment’ shall be . . . (v)
Subchapter S distributions received by the [plaintiff]
by virtue of his forty (40%) percent interest in Artisans
Home Builders, Inc. or other like distributions from any
company in which the [plaintiff] acquires an ownership
interest . . . .’’
Paragraph 4.2 of the agreement provides that, com-
mencing June 1, 2007, and until the death of either
party, the defendant’s remarriage or cohabitation, or
sixty months, whichever shall first occur, ‘‘the [plaintiff]
shall pay unallocated alimony and child support in cash
to the [defendant] as follows: an amount equal to forty
(40%) percent of the [plaintiff’s] pre-tax income from
employment, which income the parties stipulate to be
$192,000 per year.’’3 Paragraph 4.2 of the agreement also
provides: ‘‘The $192,000 pre-tax income from employ-
ment is based upon the accepted opinion of a joint
appraisal conducted by Meyers, Harrison & Pia as to
the fair market value of the [plaintiff’s] 40% interest in
Artisans, Maker of Fine Homes, Inc. (Artisans). Said
appraisal concluded that reasonable and appropriate
compensation levels of the [plaintiff] for the year ended
in December 1, 2005 is $175,000. In addition to the
$175,000, the parties agree to include, as ‘pre-tax
income’ monies paid directly by Artisans for the benefit
of the [plaintiff]. Currently, this direct payment benefit
consists of the payment of medical insurance premium
in the approximate annual amount of $17,000. Accord-
ingly, for purposes of modification, the parties have
ascribed a base salary of $175,000 plus additional direct
benefits of $17,000 for a total pretax income of $192,000.
Specifically excluded from this pre-tax income and not
to be considered in a modification hearing is the return
on investment the [plaintiff] receives as an equity holder
in the business. By way of example, in 2005, the [plain-
tiff’s] income from wages and salaries (W-2) and S Cor-
poration income (K-1) was $681,982. Notwithstanding,
because the earnings of Artisans (i.e. in sums in excess
of $192,000) were used to value Artisans as an asset,
monies the [plaintiff] receives in excess of $192,000
shall not be considered a ‘pre-tax income from
employment.’ ’’
Paragraph 4.4 provides: ‘‘If the [plaintiff’s] base salary
and direct benefits from Artisans Home Builders, Inc.,
or a subsequent employer, exceeds or is less than
$192,000, the [plaintiff] shall immediately notify the
[defendant] of such change and advise her of the
amount of increase or decrease. The change in the
[defendant’s] entitlement of the forty (40%) percent or
thirty-seven and one-half (37 1/2 %) percent, whether
more or less, shall be effective on the first day of the
month following the [plaintiff’s] receipt of a salary
increase or of a salary decrease.’’
Paragraph 4.6 of the agreement states: ‘‘Either party
shall have the right to move for modification of the
provisions of paragraphs 4.1, 4.2 and 4.3 in the event
there is a substantial change in the nature of the [plain-
tiff’s] compensation and/or the [plaintiff] is no longer
employed by Artisans Home Builders, Inc. and/or no
longer has an ownership interest in Artisans Home
Builders, Inc.’’
The plaintiff paid alimony of $76,010 in 2008 and
$17,200 in 2009. In 2010 and 2011, the plaintiff paid no
alimony. ‘‘In August, 2011, the plaintiff filed a postjudg-
ment motion to modify alimony on the ground that the
agreement provided that either party had the right to
move for modification of alimony on the basis of a
substantial change in circumstances and that there had
been such a change. In September, 2011, the defendant
filed a postjudgment motion for contempt on the ground
that the plaintiff had failed to pay unallocated alimony
and child support as provided in the agreement. In that
motion, the defendant also sought counsel fees and
statutory interest. In March, 2012, after a hearing on
the motions, the court [Klatt, J.] denied the defendant’s
motion for contempt, declined to award the defendant
attorney’s fees or statutory interest, and granted the
plaintiff’s motion to modify.’’ Marshall I, supra, 151
Conn. App. 640.
‘‘In its March, 2012 decision, the court found that the
plaintiff paid alimony in accordance with the agreement
in 2007 and 2008, that he reduced alimony payments
to $3200 for the first six months of 2009, and that he
stopped all alimony payments as of July 1, 2009. The
court noted that the plaintiff testified that he was an
owner of Artisans, a company that built custom homes,
and that by 2009, Artisans had suffered a significant
decline in business. The court found that the plaintiff’s
income was $192,000 in 2007, that it had been reduced
to $72,000 by 2009, and remained at approximately
$72,000 for 2010 and 2011.
‘‘The court determined that paragraph 4.4 of the
agreement was self-executing and provided a straight-
forward formula for calculating unallocated alimony
and child support obligation that was based on certain
increases or decreases in income. The court concluded
that the agreement did not provide for the complete
cessation of alimony payments in the event of a change
in income; rather, the plaintiff should have reduced his
alimony payments, in accordance with paragraph 4.4,
to 40 percent of his W-2 income. The court found that
the plaintiff’s yearly W-2 salary in 2009 was $72,000 and
concluded that he owed $2400 per month for that year.
The court found that the plaintiff owed alimony in the
following amounts: $14,400 for the year 2009 (six
months @ $2400/month); $28,800 for the year 2010
(twelve months @ $2400/month); $19,200 for the year
2011 (eight months @ $2400/month); for a total of
$62,400 to be paid in monthly installments of $2400 until
paid in full. The court modified the plaintiff’s alimony
payments pursuant to paragraph 4.6 of the agreement to
$1 per year retroactive to August 31, 2011.’’ Id., 643–44.
The defendant then filed an appeal with this court,
claiming, inter alia, that the trial court erred in calculat-
ing the amount of alimony owed by the plaintiff under
the agreement. Id., 639. The defendant’s specific claim
in Marshall I was that the court erred in calculating
the plaintiff’s alimony obligation on the basis of his W-
2 income only, without considering the distributions he
received from Artisans. Id., 644–45. This court con-
cluded that the agreement was ambiguous ‘‘as to
whether the plaintiff’s distributions from Artisans, or
K-1 income, were to be included in ‘pre-tax income
from employment’ and, if so, to what extent.’’ Id., 648.
This court reasoned: ‘‘Paragraph 4.1 specifically
excludes ‘[s]ubchapter S distributions’ from the defini-
tion of ‘pre-tax income from employment.’ Paragraph
4.2, however, does not limit ‘pre-tax income from
employment’ to W-2 income only. That paragraph
defines ‘pre-tax income from employment’ as ‘base sal-
ary’ plus additional benefits. In paragraph 4.2, the par-
ties used the fair market value of the plaintiff’s 40 per-
cent interest in Artisans to arrive at ‘reasonable and
appropriate compensation levels’ for the plaintiff’s ‘base
salary’ for the 2005 tax year. The plaintiff’s 2007
amended federal 1040 form indicated that his W-2
income was $126,144, which amount is less than the
stipulated amount in paragraph 4.2 of $175,000 for the
plaintiff’s base salary. Paragraph 4.4 provides for a mod-
ification if the plaintiff’s ‘base salary and direct benefits’
should be greater or less than $192,000. In order to
reconcile paragraphs 4.1 and 4.2, and to determine the
extent to which K-1 income is to be included in the
calculation of ‘base salary,’ the trial court must engage
in fact-finding as to the intent of the parties.’’ (Footnote
omitted.) Id., 648. Having found the agreement ambigu-
ous, this court remanded the case to the trial court to
determine the intent of the parties and the arrearage.4 Id.
This court in Marshall I also addressed the defen-
dant’s claim that the trial court improperly granted the
plaintiff’s motion to modify alimony, concluding: ‘‘The
court erred in comparing ‘apples and oranges’ and
determining the amount of the plaintiff’s compensation
for 2007 through 2011, and calculating a 60 percent
change in income by comparing the stipulated income
of $192,000 in 2007, which included direct benefits and
some K-1 income, with the plaintiff’s W-2 income only
for the subsequent years. Paragraph 4.6 [of the agree-
ment] specifies that either party shall have the right to
move for modification of [of the provisions of para-
graphs 4.1, 4.2 and 4.3] in the event there is a ‘substantial
change in the nature of the [plaintiff’s] compensation
. . . .’ It is perhaps significant that the agreement uses
the term ‘compensation,’ in paragraph 4.6, rather than
‘pre-tax income’ or another term previously used in
article 4. In any event, because the factual basis underly-
ing the court’s granting of the plaintiff’s motion for
modification is clearly erroneous, we remand this issue
to the trial court for further proceedings.’’ Id., 657. This
court’s rescript provided: ‘‘The judgment is reversed
with respect to the granting of the plaintiff’s motion to
modify alimony and the calculation of the amount of the
alimony arrearage owed by the plaintiff to the defendant
and the case is remanded for further proceedings con-
sistent with this opinion. The judgment is affirmed in
all other respects.’’ Id., 658.
On remand, the court, Hon. Gerard I. Adelman, judge
trial referee, ruled that it ‘‘would bifurcate the issues
by first deciding whether or not all or any portion of
the plaintiff’s K-1 income was to be included in the
modification hearing and then, based on the first ruling,
hold a second hearing to establish the amount of the
plaintiff’s income. At the second hearing, the court
would rule on the motion for modification and perhaps
set a new alimony order in compliance with the original
agreement of the parties.’’
The court held the first part of the bifurcated hearing
on July 19 and 25, 2016. Both parties testified, as did
Attorneys Ellen Lubell and Melissa J. Needle, who repre-
sented the defendant and the plaintiff, respectively, at
the time of the dissolution, and Mark Harrison, who
performed a business valuation as it related to the plain-
tiff’s interest in Artisans as of September 30, 2006. Fol-
lowing the conclusion of the hearing on July 25, 2016,
the court issued the following oral ruling: ‘‘[T]he intent
of the parties was that in reaching the reasonable com-
pensation, the court should consider income, even
including some distributions from the business, irre-
gardless of the fact that Mr. Marshall got to keep his
40 percent interest and it was excluded. Because I think
the intent of the parties was to include it in some level.’’
The second part of the hearing was held over three
days on October 23, 24 and 25, 2017. The court heard the
testimony of both parties; the plaintiff’s former business
partner, Christopher Phillips; the plaintiff’s expert wit-
ness, John Kramer; and the defendant’s expert witness,
John M. Leask II.
Kramer, a certified public accountant with experi-
ence in valuation of closely held businesses, testified
that he was retained by the plaintiff to determine his
reasonable compensation from employment from 2008
through 2011. Kramer testified generally that, when val-
uing a closely held business, the income stream is split
into reasonable compensation and return on invest-
ment. He testified that the reasonable compensation
component is ‘‘basically the amount that somebody like
Mr. Marshall would be paid if he were not an owner,
if he had to hire somebody to perform his . . . func-
tions of the business,’’ whereas the return on investment
is ‘‘the piece that went into determining [what his] inter-
est was worth—I think the number was 845,000.’’5
Kramer testified that he had reviewed the parties’
agreement, the valuation report prepared by Harrison,
Artisans’ tax returns and financial statements, the plain-
tiff’s personal tax returns, updated salary surveys that
had been used by Harrison in his analysis, and tran-
scripts of Phillips’ deposition testimony. In addition
to speaking to David Bailey, Artisans’ certified public
accountant, Kramer also spoke with Harrison and his
associate, Joseph DeCusati, regarding the methodology
they had used to determine reasonable compensation
for the valuation report they had prepared. Kramer testi-
fied that he had recalculated what Harrison and DeCu-
sati had done and talked to them about his recalcula-
tions to ‘‘make sure that it was appropriate’’ and then
‘‘carried forward that . . . same methodology to the
relevant years.’’ Kramer testified that the methodology
involved multiplying the gross revenue of the business
by a certain percentage to determine reasonable com-
pensation. Harrison had determined, following his
review of certain compensation surveys,6 that 2 percent
‘‘was an appropriate percentage to use for this particu-
lar business company of a size of $18 million in the
home-building industry, and that was the basis for [Har-
rison’s] calculation of normalized compensation.’’
Regarding the formula Kramer used to determine the
plaintiff’s reasonable compensation in 2008, Kramer tes-
tified: ‘‘I did a similar calculation to . . . Harrison
. . . . I wanted to keep it comparable to what they had
done. So I took the sales of Artisans. That would’ve
come from the company’s tax returns and financial
statements. That just represents the gross sales.
Multiplied by a percentage, and that’s really where I did
the bulk of my work, determining what the appropriate
percentage should be as a result of looking at [Risk
Management Association (RMA)] and BizMiner and
Integra for . . . the appropriate years here, determined
in this particular case that 2.5 percent is the appropriate
percentage to use for company’s that’s doing about $9
million in sales in this particular industry. So, I
multiplied the sales by the percentage to get the total
. . . reasonable compensation.’’ See footnote 6 of this
opinion. Kramer testified that he performed a similar
calculation for 2009 through 2011, adjusting the percent-
age as necessary on the basis of his examination of the
compensation surveys.
Although the plaintiff held a 40 percent ownership
interest in Artisans, Kramer testified that he assigned
50 percent of the total reasonable compensation to the
plaintiff, as Harrison had done. Kramer testified that,
when Harrison did his valuation, he ‘‘treated the owners
as equal for this purpose, so I . . . carried it forward
and used the 50 percent.’’ With respect to the plaintiff’s
medical benefits, Kramer testified that, for 2010 and
2011, he used the figure reported by Artisans on the
plaintiff’s K-1 tax form. For 2008 and 2009, Kramer
spoke with Bailey, who verified the amount Artisan
paid for the plaintiff’s medical benefits.7 On the basis of
his calculations, Kramer found the plaintiff’s reasonable
compensation and direct medical benefits to be
$134,500 for 2008, $61,500 for 2009, $115,800 for 2010,
and $126,400 for 2011. Kramer recorded these findings
in a schedule of the plaintiff’s reasonable compensation.
The defendant’s expert witness, Leask, also a certi-
fied public accountant with experience in valuation of
closely held businesses, testified that he was retained
by the defendant to determine the plaintiff’s income
from Artisans. He determined the plaintiff’s net income
share, i.e., what the plaintiff would have earned had
Artisans’ distributed 100 percent of its earnings.
On December 14, 2017, the court issued its memoran-
dum of decision. It made the following relevant findings
of fact: ‘‘The court has used the concept of reasonable
compensation to determine the pre-tax income (reason-
able compensation) of the plaintiff for the purposes of
calculating the alimony owed for each year . . . .
Based on that concept, the plaintiff’s gross income for
purposes of alimony modification calculations was
$134,500 for 2008; $61,500 for 2009; $115,800 for 2010,
and $126,400 for 2011 . . . . Using 40 percent (40%) of
gross income to arrive at the alimony obligation, as
agreed to by the parties in their agreement and the
order of the court, the plaintiff’s alimony obligation for
2008 was $53,800; for 2009, it was $24,600; for 2010, it
was $46,320; and for 2011, it was $50,560 . . . .
Accepting as accurate the tax returns of both parties,
the overpayment for 2008 would be $22,210. In 2009,
the plaintiff paid to the defendant a total of $17,200,
which would be an underpayment of $7400. In 2010,
the plaintiff paid no alimony at all to the defendant for
an underpayment of $46,320 and, in 2011, there was no
alimony paid for an underpayment of $50,560. Those
amounts total $82,270 . . . . Both parties agree that
the plaintiff paid to the defendant an additional $62,400
as ordered by the court (Klatt, J.) after the January 2012
hearing . . . . There had been a substantial change in
the financial circumstance for both parties for the year
2011 and going forward . . . . The court finds that
based on the relative financial circumstances of the
parties for 2011, the appropriate alimony payment
should be modified to zero retroactive to September 1,
2011, thereby reducing the arrearage for that year by
$16,853 ($4213.33 per month for four months, so that
the alimony owed for 2011 would be modified to
$33,707) . . . . After applying credits for all payments
and reducing the obligation retroactive to September
1, 2011, the plaintiff would owe to the defendant ali-
mony in the amount of $2817 (—$22,210 + $7400 +
$46,320 + $33,607 = $65,217 — $62,400 = $2817) . . . .’’
(Footnote omitted.)
Accordingly, the court granted the plaintiff’s August
16, 2011 motion to modify alimony and ordered the
plaintiff’s alimony obligation for 2008 through 2010 and
the first eight months of 2011 reduced to ‘‘40 percent
of the plaintiff’s reasonable compensation as found by
the court . . . .’’ See footnote 14 of this opinion. It
further ordered the plaintiff’s alimony obligation for the
last four months of 2011 reduced to zero. The court
granted the defendant’s September 29, 2011 motion for
contempt only as to the finding of the arrearage in the
amount of $2817 and denied the plaintiff’s March 7, 2017
motion for an order regarding an alimony overpayment.
This appeal followed.
I
The defendant first claims that the court ‘‘erred by
going far beyond the scope of the Appellate Court
remand orders.’’ Specifically, she argues that ‘‘[t]he
Appellate Court never instructed the trial court to deter-
mine whether the Agreement required the application
of the formula to the plaintiff’s pre-tax income or
instead to his ‘reasonable compensation.’ ’’ The plaintiff
responds that ‘‘the trial court’s orders utilizing a reason-
able compensation approach were in adherence to the
scope of the Appellate Court’s remand and should be
affirmed.’’ We agree with the plaintiff.
We first set forth our standard of review and relevant
principles of law. ‘‘Determining the scope of a remand
is a matter of law because it requires the trial court to
undertake a legal interpretation of the higher court’s
mandate in light of that court’s analysis. . . . Because
a mandate defines the trial court’s authority to proceed
with the case on remand, determining the scope of a
remand is akin to determining subject matter jurisdic-
tion. . . . We have long held that because [a] determi-
nation regarding a trial court’s subject matter jurisdic-
tion is a question of law, our review is plenary. . . .
‘‘At the outset, we note that, [i]f a judgment is set
aside on appeal, its effect is destroyed and the parties
are in the same condition as before it was rendered.
. . . As a result, [w]ell established principles govern
further proceedings after a remand by this court. 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 guid-
ing principle that the trial court must observe. . . . 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. . . . The trial court should
examine the mandate and the opinion of the reviewing
court and proceed in conformity with the views
expressed therein. . . .
‘‘Compliance [with a mandate] means that the direc-
tion is not deviated from. The trial court cannot adjudi-
cate rights and duties not within the scope of the
remand. . . . No judgment other than that directed or
permitted by the reviewing court may be rendered. . . .
The trial court should examine the mandate and the
opinion of the reviewing court and proceed in confor-
mity with the views expressed therein. . . . We are
mindful, however, that [w]e have rejected efforts to
construe our remand orders so narrowly as to prohibit
a trial court from considering matters relevant to the
issues upon which further proceedings are ordered that
may not have been envisioned at the time of the remand.
. . . So long as these matters are not extraneous to the
issues and purposes of the remand, they may be brought
into the remand hearing.’’ (Citations omitted; emphasis
omitted; internal quotation marks omitted.) Hurley v.
Heart Physicians, P.C., 298 Conn. 371, 383–85, 3 A.3d
892 (2010).
In applying these principles to the present case, we
first review our analysis, remand and mandate in Mar-
shall I. As set forth previously in this opinion, this court,
in Marshall I, found the agreement ambiguous ‘‘as to
whether the plaintiff’s distributions from Artisans, or
K-1 income, were to be included in ‘pre-tax income
from employment’ and, if so, to what extent.’’ Marshall
I, supra, 151 Conn. App. 648. Paragraph 4.1, as this
court noted, ‘‘specifically excludes ‘[s]ubchapter S dis-
tributions’ from the definition of ‘pre-tax income from
employment,’ ’’ while paragraph 4.2 ‘‘does not limit ‘pre-
tax income from employment’ to W-2 income only’’ and
instead defines ‘‘ ‘pre-tax income from employment’ as
‘base salary’ plus additional benefits.’’ Id. This court
acknowledged that, ‘‘[i]n paragraph 4.2, the parties used
the fair market value of the plaintiff’s 40 percent interest
in Artisans to arrive at ‘reasonable and appropriate com-
pensation levels’ for the plaintiff’s ‘base salary’ for the
2005 tax year.’’ Id. This court further stated that the
plaintiff’s 2007 tax return indicated that his W-2 income
of $126,144 was below the stipulated base salary
amount of $175,000 in paragraph 4.2. Id. This court
reiterated that paragraph 4.4 provides for a modification
if the plaintiff’s ‘‘base salary and direct benefits’’ should
be greater or less than $192,000. Id. As framed by this
court, paragraphs 4.1 and 4.2 required reconciliation.
Id. This court recognized that the reconciliation process
would involve a ‘‘determin[ation] [of] the extent to
which K-1 income is to be included in the calculation
of ‘base salary,’ ’’ which required ‘‘fact-finding as to the
intent of the parties.’’ Id. Having found the agreement
ambiguous, this court remanded the matter to the trial
court ‘‘to determine the intent of the parties and to
determine the arrearage accordingly.’’ Id. This court
‘‘remanded [the case] for further proceedings consistent
with this opinion.’’ Id., 658.
On remand, the trial court bifurcated the hearing. It
first took up this court’s mandate to engage in ‘‘fact-
finding as to the intent of the parties.’’ Id., 648. At the
conclusion of the first portion of the hearing on July
25, 2016, the court issued its factual finding: ‘‘[T]he
intent of the parties was that in reaching the reasonable
compensation, the Court should consider income even
including some distributions from the business, irre-
gardless of the fact that Mr. Marshall got to keep his
40 percent interest and it was excluded . . . .’’ The
court determined that ‘‘the intent of the parties was to
include [K-1 distributions] in some level.’’ The court
stated that, in the next portion of the hearing, ‘‘[w]hat
Mr. Marshall’s actual compensation was, is going to
become . . . the key. And whether or not you need a
new evaluation to decide what reasonable compensa-
tion is or not, I’ll leave that to the parties . . . .’’
The court then held the second portion of the hearing,
during which it heard expert testimony proffered by
both parties. In its memorandum of decision, the court
found that the parties had ‘‘adopted the ‘reasonable
compensation’ calculation to establish income for ali-
mony and child support purposes.’’ The court saw ‘‘no
reason not to follow that agreed-upon methodology
going forward.’’ It found Kramer’s calculations ‘‘to be
a fair and reasonable adaptation of those done by [Har-
rison] the mutual expert witness for the parties’ 2007
agreement.’’ The court thereafter determined the plain-
tiff’s pre-tax income for the relevant years and deter-
mined the amount of the arrearage, as directed by this
court in its remand order.
A thorough examination of this court’s opinion in
Marshall I and the proceedings on remand leads us to
reject both the defendant’s narrow interpretation of
our remand order and her representation of the court’s
decision on remand.8 She contends that this court’s
remand order in Marshall I restricted the trial court’s
inquiry to ‘‘whether the K-1 income was to be included
in the plaintiff’s pre-tax income.’’ Once the court deter-
mined that the K-1 income was to be included, the
defendant maintains, the court’s only tasks ‘‘were to
confirm the amount of the K-1 income in each of the
years in question, to add it to the plaintiff’s W-2 income
and direct benefits of $17,000, and to multiply the
resulting number by 40% to determine the plaintiff’s
alimony in each year.’’ We disagree that this court’s
order so constrained the court on remand. Moreover,
we disagree with the defendant’s arguments that the
court ‘‘us[ed] the plaintiff’s ‘reasonable compensation’
instead of his pre-tax income’’ and, in doing so,
‘‘alter[ed] the terms of the parties’ agreement’’ and
‘‘changed the formula’’ on which the postdissolution
proceedings had been premised. We conclude that the
court acted within the scope of the remand order in
Marshall I when it used the methodology of reasonable
compensation to determine the plaintiff’s pre-tax
income in the context of effectuating the terms of the
parties’ separation agreement, the relevant provisions
of which this court had determined to be ambiguous.
II
The defendant’s second claim on appeal is that ‘‘[t]he
Appellate Court’s determination that the alimony calcu-
lation was to be made on the basis of plaintiff’s pre-
tax income was the law of this case which the trial
court was bound to follow, [and the court on remand]
erred when [it] based the plaintiff’s alimony obligation
on his supposed ‘reasonable compensation’ instead.’’
The plaintiff responds that ‘‘[h]ow to calculate [the]
[p]laintiff’s income was relevant and not extraneous to
the issues and purposes of the remand. Therefore, it
was within the scope of the remand, and outside the
scope of any ‘law of the case’ in this matter.’’ We agree
with the plaintiff.
We first set forth our standard of review and relevant
legal principles. ‘‘[T]he application of the law of the
case doctrine involves a question of law, over which our
review is plenary.’’ (Internal quotation marks omitted.)
Stones Trail, LLC v. Weston, 174 Conn. App. 715, 739,
166 A.3d 832, cert. denied, 327 Conn. 926, 171 A.3d 59
(2017). ‘‘The law of the case doctrine provides that
[w]here a matter has previously been ruled upon inter-
locutorily, 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.
. . . A judge is not bound to follow the decisions of
another judge made at an earlier stage of the proceed-
ings, and if the same point is again raised he has the
same right to reconsider the question as if he had him-
self made the original decision. . . . [O]ne judge may,
in a proper case, vacate, modify, or depart from an
interlocutory order or ruling of another judge in the
same case, upon a question of law.’’ (Citation omitted;
emphasis omitted; internal quotation marks omitted.)
Olson v. Mohammadu, 169 Conn. App. 243, 263, 149
A.3d 198, cert. denied, 324 Conn. 903, 151 A.3d 1289
(2016). ‘‘Intervening appellate proceedings, however,
change the nature of this seemingly discretionary doc-
trine. [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 omit-
ted.) Fazio v. Fazio, 199 Conn. App. 282, 289–90,
A.3d (2020).
The defendant argues that the trial court on remand
failed to ‘‘abide by the law of the case as established
through the prior decisions’’ in Marshall I by both the
trial court and this court. We first discuss this court’s
opinion. As set forth in part I of this opinion, this court
in Marshall I concluded that the relevant provisions of
the agreement were ambiguous and remanded for a
determination ‘‘as to whether the plaintiff’s distribu-
tions from Artisans, or K-1 income, were to be included
in ‘pre-tax income from employment’ and, if so, to what
extent.’’ Marshall I, supra, 151 Conn. App. 648. Because
we have concluded in part I of this opinion that the
trial court properly acted within the scope of the
remand order in rendering its decision, it could not have
violated the principle ‘‘that the opinion of an appellate
court, so far as it is applicable, establishes the law of
the case upon a retrial . . . .’’ (Internal quotation
marks omitted.) Fazio v. Fazio, supra, 199 Conn. App.
289–90. It necessarily follows that the trial court did
not fail to abide by the law of the case of this court’s
opinion in Marshall I.
Moreover, in Marshall I, this court concluded that
the trial court erred in calculating the amount of ali-
mony owed by the plaintiff under the agreement and
‘‘remand[ed] the case to the trial court for further pro-
ceedings on this issue.’’ Marshall I, supra, 151 Conn.
App. 640. Specifically, this court reversed the judgment
of the trial court ‘‘with respect to the granting of the
plaintiff’s motion to modify alimony and the calculation
of the amount of the alimony arrearage owed by the
plaintiff to the defendant . . . .’’ Id., 658. Notwithstand-
ing this language, the defendant argues that this court’s
affirmance of the trial court in all other respects, means
that ‘‘[the trial court in Marshall I’s] calculation of the
arrears using the plaintiff’s actual income and not his
‘reasonable compensation’ was correct, was affirmed
by the Appellate Court, and became the law of this
case.’’ We disagree that this court’s statement that ‘‘[t]he
judgment is affirmed in all other respects’’; Marshall I,
supra, 658; established the trial court’s calculations as
the law of the case. This court’s opinion in Marshall I
also held that the trial court did not abuse its discretion
in declining to award the defendant statutory interest
and rejected the defendant’s claim that the court erred
in failing to find the plaintiff in contempt. Id., 651, 652.
This court ‘‘discern[ed] no basis on which to disturb the
court’s conclusions regarding contempt’’ and explained
that ‘‘[t]he court’s failure to find wilfulness—an issue
on which the defendant had the burden of proof—would
not logically be altered on remand.’’ Id., 651. On the
basis of the foregoing, we conclude that the calculations
found in the trial court opinion in Marshall I did not
constitute the law of the case on remand, and that this
court’s affirmance of the judgment in other respects
addressed the trial court’s statutory interest and con-
tempt conclusions.
III
The defendant’s third claim on appeal is that ‘‘it was
improper for the trial court to consider an argument
never previously presented by the plaintiff and which,
in fact, was directly contradictory to the position that
the plaintiff had maintained from the outset of this
matter until the remand hearing.’’ Specifically, the
defendant argues that, until the hearing on remand, the
plaintiff ‘‘never suggested that the alimony to be paid
ought to be based on an annual determination of what
his ‘reasonable compensation’ might be in light of the
value of Artisans as it changed from time to time.’’
According to the defendant, because the plaintiff failed
to argue in Marshall I that alimony should be based on
an annual determination of his reasonable compensa-
tion, either before the trial court or by way of cross
appeal, he should not have been permitted on remand
to argue that his pre-tax income should be determined
on the basis of reasonable compensation.9 We disagree.
The defendant’s argument rests on the principle that
‘‘[a]n appellant who fails to brief a claim abandons it
. . . .’’ (Emphasis in original; internal quotation marks
omitted.) Harris v. Bradley Memorial Hospital &
Health Center, Inc., 306 Conn. 304, 319, 50 A.3d 841
(2012), cert. denied, 569 U.S. 918, 133 S. Ct. 1809, 185
L. Ed. 2d 812 (2013). ‘‘As the [United States Court of
Appeals for the Third Circuit] has explained, [a]dher-
ence to the rule that a party waives a contention that
could have been but was not raised on [a] prior appeal
. . . is, of course, necessary to the orderly conduct of
litigation. Failure to follow this rule would lead to the
bizarre result . . . that a party who has chosen not to
argue a point on a first appeal should stand better as
regards the law of the case than one who had argued
and lost. . . . In keeping with this reasoning, this court
previously has refused to consider claims on subse-
quent appeals by the same party in which [n]o valid
reason has been alleged as to why the [appellant] could
not have brought the present claim when the prior one
was brought.’’ (Citations omitted; internal quotation
marks omitted.) Id.
The defendant relies on O’Brien v. O’Brien, 161 Conn.
App. 575, 581, 128 A.3d 595 (2015), rev’d on other
grounds, 326 Conn. 81, 161 A.3d 1236 (2017), as support
for her argument that the plaintiff’s failure to cross
appeal from the trial court’s opinion in Marshall I pre-
cluded him from arguing on remand for a determination
of his pre-tax income on the basis of his reasonable
compensation. In O’Brien, the dissolution court treated
all unvested stock options held by the plaintiff at the
time of dissolution as marital property subject to equita-
ble distribution. Id., 580–81. The plaintiff appealed from
the judgment of dissolution but did not challenge the
property division orders. Id., 581. After remand, the
plaintiff again appealed to this court. Id., 576. In his
second appeal, the plaintiff raised an argument that the
unvested stock options were not marital property and,
therefore, he could not have violated the automatic
orders applicable in all marital dissolution actions; see
Practice Book § 25-5; by converting certain of his stock
options into cash. O’Brien v. O’Brien, supra, 580 n.4.
This court concluded that ‘‘[b]ecause the plaintiff could
have challenged the court’s treatment of the stock
options as marital property in his prior appeal but failed
to do so, the plaintiff has waived his right to argue that
the unvested stock options were not marital property
and, thus, that their exercise could not have violated
the automatic orders.’’ Id. This court further concluded
that ‘‘[t]he plaintiff similarly has waived any argument,
now or on further remand, that the proceeds resulting
from the exercise of those options are not subject to
distribution by the court in accordance with General
Statutes § 46b-81.’’ Id. The present case is distinguish-
able from O’Brien in that the plaintiff in the present
case was the appellee in Marshall I and is, once again,
the appellee in this appeal.10 See footnote 2 of this opin-
ion. This court in O’Brien cited Harris, in which our
Supreme Court declined to depart ‘‘from the previously
announced general principle that an appellee will not
be deemed to have forfeited a claim that could have
been, but was not, brought in the context of the appel-
lant’s appeal.’’ Harris v. Bradley Memorial Hospital &
Health Center, Inc., supra, 306 Conn. 324. Thus, O’Brien
does not lend support to the defendant’s claim.11
Accordingly, we reject the defendant’s argument that
plaintiff was barred from arguing that his pre-tax
income should be determined on the basis of reasonable
compensation because he did not advance such a theory
in prior proceedings.
IV
The defendant next claims that the court improperly
used the plaintiff’s reasonable compensation as the
basis for alimony calculations where the ‘‘agreement
does not provide for that method.’’ We disagree.
At the outset, we note that, because this court deter-
mined in Marshall I that the agreement is ambiguous,
the interpretation of the agreement by the trial court
on remand is subject to the clearly erroneous standard
of review. ‘‘It is well established that a separation agree-
ment, incorporated by reference into a judgment of
dissolution, is a contract between the separating par-
ties. . . . When the language of a contract is ambigu-
ous, the determination of the parties’ intent is a question
of fact, and the trial court’s interpretation is subject
to reversal on appeal only if it is clearly erroneous.’’
(Internal quotation marks omitted.) Hammond v. Ham-
mond, 145 Conn. App. 607, 611–12, 76 A.3d 688 (2013);
see also Thoma v. Oxford Performance Materials, Inc.,
153 Conn. App. 50, 62, 100 A.3d 917 (2014) (reviewing
court’s resolution of ambiguous contract provision
under clearly erroneous standard because ‘‘[w]hen . . .
a contract provision is ambiguous or contract provi-
sions are internally inconsistent, a question of fact is
involved’’ (internal quotation marks omitted)). ‘‘The
interpretation of a contract term that is not so clear as
to render its interpretation a matter of law is a question
of fact, subject to the clearly erroneous standard of
review. . . . We do not examine the record to deter-
mine whether the trier of fact could have reached a
conclusion other than the one reached. Rather, we focus
on the conclusion of the trial court, as well as the
method by which it arrived at that conclusion, to deter-
mine whether it is legally correct and factually sup-
ported.’’ (Internal quotation marks omitted.) Bijur v.
Bijur, 79 Conn. App. 752, 759, 831 A.2d 824 (2003).
‘‘This court has stated frequently that [a] finding of fact
is clearly erroneous when there is no evidence in the
record to support it . . . or when although there is
evidence in the record to support it, the reviewing court
on the entire evidence is left with the definite and firm
conviction that a mistake has been committed. . . .
While conducting our review, we properly afford the
court’s findings a great deal of deference because it is
in the unique [position] to view the evidence presented
in a totality of circumstances, i.e., including its observa-
tions of the demeanor and conduct of the witnesses
and parties, which is not fully reflected in the cold,
printed record which is available to us.’’12 (Internal quo-
tation marks omitted.) Id., 761–62.
The defendant argues that the ‘‘notion’’ of reasonable
compensation is found only in paragraph 4.2 of the
agreement ‘‘simply to explain the rationale for using
$192,000 as the stipulated amount of the plaintiff’s pre-
tax income at the time of the Agreement, as it consisted
of $175,000 in salary and distributions, being the reason-
able amount of compensation at the time of the Agree-
ment as determined by the accountants for purposes
of valuing Artisans, and the $17,000 in plaintiff’s direct
benefits. But future calculations were to be based on
the plaintiff’s actual receipts from the company by way
of W-2 salary, direct benefits, and, as found by Judge
Adelman, K-1 distributions.’’13
We conclude that the court’s determination of the
plaintiff’s pre-tax income on the basis of his reasonable
compensation was supported by evidence in the record.
Given the court’s preliminary ruling that ‘‘the intent of
the parties was to include [K-1 distributions] in some
level,’’ the court, in its memorandum of decision, identi-
fied the central dispute as ‘‘how to determine the plain-
tiff’s income . . . .’’ It repeated the plaintiff’s position
that ‘‘the court should determine his reasonable com-
pensation in accordance with the terms of the parties’
agreement’’ and the defendant’s position that ‘‘the court
should consider all of the actual business funds avail-
able for distribution to the partners in addition to the
actual salaries paid to them.’’ The court then reviewed
the expert testimony proffered by each party and found
Kramer’s testimony entirely credible. Last, the court
stated: ‘‘In attempting to determine an accurate and
fair income of an individual operating in a closely held
corporation or other similar business model, it is always
difficult to differentiate between the various methods
available. Each has its merits and its limitations. Using
a straight W-2 income approach may not be fair or
accurate given that the owners of the closely held busi-
ness have the ability to set salary figures as they wish.
Using all available funds for distribution would likewise
not be fair given the plaintiff’s prior buyout of the defen-
dant’s equitable claim to his business interests. The
defendant cannot be paid for her equitable claim and
then seek to profit from the plaintiff’s full ownership
interest in the business. In this particular situation, the
parties had negotiated a resolution in their agreement
when they adopted the ‘reasonable compensation’ cal-
culation to establish income for alimony and child sup-
port purposes. The court sees no reason not to follow
that agreed-upon methodology going forward. The
court further finds the calculations performed by
Kramer, the plaintiff’s expert witness, to be a fair and
reasonable adaptation of those done by the mutual
expert witness for the parties’ 2007 agreement.’’
In so deciding, the trial court reasonably found that
the parties had adopted the reasonable compensation
calculation in their agreement, and it properly carried
that methodology forward. Having thoroughly reviewed
the record before the trial court on remand, we con-
clude that the court’s determination was not clearly
erroneous.
V
The defendant’s last claim on appeal is that the court
improperly ‘‘modified the alimony for a period of nearly
four years prior to’’ the plaintiff’s motion to modify.
(Emphasis omitted.) The plaintiff responds that ‘‘Judge
Adelman simply calculated the alimony due from the
plaintiff to the defendant and the arrearage for the years
at issue in the appeal, based on his resolution of the
ambiguities in the parties’ Agreement. That was not an
improper retroactive modification, but exactly the task
assigned to the trial court on remand.’’ We agree with
the plaintiff.
We first set forth our standard of review and relevant
principles of law. ‘‘Our deferential standard of review
[in domestic relations cases] . . . does not extend to
the court’s interpretation of and application of the law
to the facts. It is axiomatic that a matter of law is entitled
to plenary review on appeal.’’ (Internal quotation marks
omitted.) Coury v. Coury, 161 Conn. App. 271, 293, 128
A.3d 517 (2015). Moreover, ‘‘[t]he construction of [an
order or] judgment is a question of law for the court
. . . [and] our review . . . is plenary. As a general rule,
[orders and] judgments are to be construed in the same
fashion as other written instruments. . . . The deter-
minative factor is the intention of the court as gathered
from all parts of the [order or] judgment.’’ (Internal
quotation marks omitted.) Lawrence v. Cords, 165
Conn. App. 473, 484–85, 139 A.3d 778, cert. denied, 322
Conn. 907, 140 A.3d 221 (2016). General Statutes § 46b-
86 (a) provides in relevant part: ‘‘No order for periodic
payment of permanent alimony or support may be sub-
ject to retroactive modification, except that the court
may order modification with respect to any period dur-
ing which there is a pending motion for modification
of an alimony or support order from the date of service
of notice of such pending motion upon the opposing
party . . . .’’
The defendant contends that this court’s decision in
Lynch v. Lynch, 153 Conn. App. 208, 238, 100 A.3d 968
(2014), cert. denied, 315 Conn. 923, 108 A.3d 1124, cert.
denied, U.S. , 136 S. Ct. 68, 193 L. Ed. 2d 66
(2015), is determinative of this issue. We disagree. In
Lynch, this court considered the plaintiff’s claim that
the trial court erred in granting the defendant’s motion
for contempt on the basis of the plaintiff’s nonpayment
of alimony and child support where the trial court also
found that the defendant owed him reimbursements
for alimony and child support. Id. The trial court had
ordered reimbursements from the defendant to the
plaintiff for an overpayment of child support and ali-
mony. Id., 234. On appeal, the defendant maintained
that he was entitled to offset his accrued obligations
by his overpayments. Id., 239. This court rejected his
argument, stating: ‘‘Retroactive modifications of sup-
port orders are ordinarily impermissible. . . . With the
exception of the period following service of a motion
for modification, [n]o order for periodic payment of
permanent alimony or support may be subject to retro-
active modification . . . . The power of the trial court
to modify orders of support and alimony is . . . a crea-
ture of statute. General Statutes § 46b-86. Nothing in
our statute regarding modification of alimony and sup-
port can be construed as authorizing retroactive modifi-
cation. Such a construction has been expressly disa-
vowed by our Supreme Court. . . . Simply stated,
alimony already accrued may not be modified.’’
(Emphasis in original; internal quotation marks omit-
ted.) Id.
We disagree that the court, in adjudicating the matter
on remand, impermissibly permitted retroactive modifi-
cation of alimony. A review of the court’s memorandum
of decision reveals that, for the years 2008 through 2011,
it first found the plaintiff’s income and then determined
his alimony obligation. Following its determination of
his alimony obligation, the court then calculated the
overpayment or underpayment for each year. The court
did not engage in a modification of alimony but rather
interpreted and effectuated the alimony provision of
the agreement, as it was directed to do by this court’s
remand order.14 Separately, the court found that the
plaintiff had established a substantial change in circum-
stances, and it modified his alimony obligation, reduc-
ing it to zero, retroactive to September 1, 2011. Because
the plaintiff’s motion to modify was served on the defen-
dant on August 31, 2011, the court’s alimony modifica-
tion retroactive to September 1, 2011, did not violate
§ 46b-86. Accordingly, the record does not show an
improper retroactive modification of alimony.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant also claims on appeal that, by determining that alimony
was to be based on the plaintiff’s reasonable compensation, the trial court
on remand improperly ‘‘modified the terms of the parties’ [separation] agree-
ment and consequently the terms of the judgment into which the agreement
had been incorporated by reference . . . .’’ (Citation omitted.) The defen-
dant maintains that such an alleged modification was improper in the
absence of a pleading seeking a modification of the terms of the judgment.
The defendant’s claim is premised on her contention that the court on
remand modified the terms of the parties’ separation agreement. Because
we conclude in parts I and IV of this opinion that the court on remand acted
within the scope of this court’s remand orders and appropriately calculated
the plaintiff’s alimony obligation using the methodology of reasonable com-
pensation, we reject the defendant’s claim and its underlying premise.
2
Because we affirm the judgment of the trial court, we need not consider
the plaintiff’s alternative ground for affirmance, which he raised by way of
cross appeal.
3
Paragraph 4.3 of the agreement provides that, commencing June 1, 2012,
and until the death of either party or the defendant’s remarriage or cohabita-
tion, whichever shall first occur, the plaintiff shall pay to the defendant, ‘‘as
alimony, an amount equal to thirty-seven and one-half (37 1/2 %) percent
of the [plaintiff’s] then pre-tax income from employment as defined above.
By way of example, if, in sixty months, the [plaintiff’s] base salary plus the
cash value of benefits is $200,000, the [plaintiff’s] monthly alimony payment
to the [defendant] would be $6,250 per month ($200,000 x .375 12 = $6,250).’’
4
In Marshall I, supra, 151 Conn. App. 645, the defendant also claimed
that the trial court improperly failed to include the plaintiff’s direct benefits,
which amounted to $17,000 per year, in its calculation of the alimony arrear-
age. This court agreed and directed the trial court on remand to include
the direct benefits in its calculation of the arrearage.
With respect to the defendant’s contempt motion, this court affirmed the
trial court’s decision to decline to find the plaintiff in contempt, stating: ‘‘As
stated in part I B of this opinion, the agreement is ambiguous as to whether
and to what extent K-1 income properly was to be factored into the calcula-
tion of alimony. Although we remand the case for further proceedings on
this limited issue, we discern no basis on which to disturb the court’s
conclusions regarding contempt.’’ Id., 651.
5
Section 6.1 of the agreement stated in relevant part: ‘‘For purposes of
this Agreement, and based on the business appraisal completed by Meyers,
Harrison & Pia in May, 2007, the parties have ascribed a value of $845,000
to the Husband’s forty (40%) percent interest in Artisans Home Builders,
Inc.’’ Section 6.7 of the agreement further provided: ‘‘The Husband shall
retain all of his interest in Artisans Home Builders, Inc. free and clear of
any claim by the Wife. The Wife hereby waives any claim or entitlement which
she may have to the Husband’s business including return on investment.’’
6
Specifically, Kramer testified that Harrison had used a couple of compen-
sation surveys, one of which was Risk Management Association’s (RMA)
survey. Kramer described RMA as ‘‘a non-profit that . . . deals with the
financial services industry. . . . [F]or many, many years, they’ve been put-
ting together a survey of not only compensation but of operating statistics
of business by . . . company type, company size, by some other attributes,
showing percentages of revenue to various expense items on an income
statement, one of those items being officer compensation to revenue.’’
In addition to RMA, Kramer testified that he also used a source called
BizMiner, which he stated he used in place of Integra, a source that Harrison
used. According to Kramer, although Integra was widely used and a viable
source at the time of Harrison’s analysis, BizMiner had ‘‘really replaced
Integra for all intents and purposes today.’’
7
Kramer initially looked to the plaintiff’s K-1 forms for 2008 and 2009 in
order to determine the amount Artisan paid for the plaintiff’s medical bene-
fits. After noticing that the number did not make sense as it was higher
than the other years, Kramer spoke with Bailey, who indicated that it was
an oversight. Bailey then helped Kramer determine the correct numbers for
2008 and 2009.
8
The cases cited by the defendant in support of her claim that the court
exceeded the scope of the remand order are factually and legally distinguish-
able. See Bruno v. Whipple, 186 Conn. App. 299, 312–13, 199 A.3d 604 (2018)
(court on remand acted improperly in rendering judgment for defendant
where remand order did not disturb jury verdict in favor of plaintiff and
case was remanded for hearing in damages only), cert. denied, 331 Conn.
911, 203 A.3d 1245 (2019); Oldani v. Oldani, 154 Conn. App. 766, 776, 108
A.3d 272 (court exceeded limited remand order for new hearing on financial
orders and attorney’s fees when, following remand, plaintiff sought to amend
complaint to add six counts unrelated to remand order and court rendered
judgment on all counts of amended complaint), cert. denied, 315 Conn. 930,
110 A.3d 433 (2015); Grady v. Schmitz, 21 Conn. App. 111, 115–16, 572
A.2d 71 (remand order with direction to render judgment for plaintiff was
exceeded where breadth of injunction rendered by trial court on remand
gave plaintiffs more than that to which they were entitled under terms of
restrictive covenant at issue), cert. denied, 215 Conn. 806, 576 A.2d 537
(1990).
9
To the extent that the defendant argues on appeal that the trial court
improperly failed to conclude that the doctrine of judicial estoppel barred
the plaintiff on remand from arguing that reasonable compensation should
be used to determine his pre-tax income, we agree with the plaintiff that
the defendant did not raise this claim before the trial court. Accordingly, it
is unreviewable. The defendant never raised judicial estoppel before the
trial court during the hearing on remand, and her posttrial brief likewise
lacks any reference to the doctrine.
Moreover, the relevant section of the defendant’s principal brief on appeal
claims that the plaintiff has abandoned any argument that his pre-tax income
should be determined using reasonable compensation on the ground that
he failed to raise such an argument in Marshall I. It is not until the defendant’s
reply brief that she seeks to ground her claim in the doctrine of judicial
estoppel. In her reply brief, she argues: ‘‘While the defendant had not labeled
her argument as [one based on judicial estoppel], nevertheless it certainly
applies.’’ We decline to consider the defendant’s argument that the doctrine
of judicial estoppel barred the plaintiff from arguing that reasonable compen-
sation should be used to determine his pre-tax income, as such claim was
not raised before the trial court and was raised for the first time in the
defendant’s reply brief. See, e.g., Gordon v. Gordon, 170 Conn. App. 713,
718 n.10, 155 A.3d 809, cert. denied, 327 Conn. 904, 170 A.3d 1 (2017).
10
The defendant also relies on Gennarini Construction Co. v. Messina
Painting & Decorating Co., 15 Conn. App. 504, 508, 545 A.2d 579 (1988).
In Gennarini Construction Co., the trial court denied the plaintiff’s applica-
tion to vacate an arbitration award and confirmed the existing award in
favor of the defendant. Id., 507. The Superior Court rejected the defendant’s
request to supplement an arbitrator’s award with interest and attorney’s
fees. Id. The plaintiff appealed to this court. Id. Although the defendant filed
a preliminary statement of issues, in which it listed a claim that the trial
court erred in its failure to award it the supplemental moneys it sought,
this court declined to address the defendant’s claim on the ground that it
was not properly raised. Id., 508. This court noted that ‘‘[t]he defendant did
not file a cross appeal raising this issue.’’ Id., 508 n.6. This court affirmed
the Superior Court’s affirmance of the arbitration award. Id., 507–508. Fol-
lowing the release of this court’s decision, the defendant reclaimed with
the trial court a motion for an order, again seeking supplemental interest
and attorney’s fees. Id., 508. The court denied the defendant’s motion. Id.,
508–509. An articulation by the court indicated that ‘‘the issue of supplemen-
tal fees had been fully presented to and decided by [the Superior Court
prior to the first appeal], and thus, the defendant was barred under the
doctrine of res judicata from raising this claim once again.’’ Id., 509. In
the second appeal, this court considered whether the trial court properly
determined that the defendant was barred from litigating the claim a second
time. Id. This court concluded that the defendant raised an impermissible
collateral attack on the first judgment. Id., 511. It emphasized that ‘‘[w]hereas
the defendant did not take advantage of . . . options [for review], exempli-
fied by its failure to cross appeal from that judgment in [Gennarini Construc-
tion Co. v. Messina Painting & Decorating Co., 5 Conn. App. 61, 496 A.2d
539 (1985)] . . . it cannot now be heard to complain. A case cannot be
presented by halves. In the event of an appeal to this court an appellee
must be prepared to have the case decided with reference to all facts on
the record presented for determination by either party. . . . The defendant
should have been more diligent in ensuring that it had properly protected
its rights.’’ (Citations omitted; internal quotation marks omitted.) Gennarini
Construction Co. v. Messina Painting & Decorating Co., supra, 15 Conn.
App. 512–13.
The procedural posture of the present case renders it distinct from Gen-
narini Construction Co. v. Messina Painting & Decorating Co., supra, 15
Conn. App. 504. Once this court determined that the agreement was ambigu-
ous and remanded the matter to the trial court, the plaintiff’s arguments as
to the method of calculating his pre-tax income were not barred by res
judicata, as the question of whether, and to what extent, his distributions
were to be included in his pre-tax income remained unresolved, and that
question was returned to the trial court for resolution on remand.
11
The defendant also relies on authorities addressing a party’s ability to
try his case on one theory and seek to reargue or to appeal on a different
theory. See Clark v. Commissioner of Motor Vehicles, 183 Conn. App. 426,
441, 193 A.3d 79 (2018); Ritcher v. Childers, 2 Conn. App. 315, 318, 478 A.2d
613 (1984). The defendant’s reliance is misguided, as the plaintiff has not
sought reargument on a different theory, nor did he change his position
from the hearing on remand to this appeal.
12
The defendant argues that this court should afford plenary review to
her claim. She maintains that the agreement ‘‘was unambiguous as to the
basis on which alimony was to be calculated. It was to be determined on the
basis of pre-tax income from employment, not on reasonable compensation.’’
She further argues that the court on remand ‘‘never found that it was the
parties’ intent to utilize ‘reasonable compensation’ as the basis for alimony
calculations.’’ The defendant argues that the only question remaining follow-
ing this court’s decision in Marshall I was whether the K-1 income was to
be included in the plaintiff’s pre-tax income from employment. According
to the defendant, the court on remand resolved the ambiguity in favor of
the defendant’s interpretation. Once the court concluded that the distribu-
tions were to be included, ‘‘the trial court had no further authority to act
beyond undertaking the ministerial act of calculating the arrears that
were owed.’’
We disagree with the defendant. As discussed in part I of this opinion,
this court in Marshall I determined that paragraphs 4.1 and 4.2 of the
agreement required reconciliation. This court recognized that the reconcilia-
tion process would involve a ‘‘determin[ation] [of] the extent to which K-1
income is to be included in the calculation of ‘base salary,’ ’’ which this court
recognized required ‘‘fact-finding as to the intent of the parties.’’ Marshall
I, supra, 151 Conn. App. 648. The ambiguity recognized by this court and
to be resolved by the trial court on remand extended beyond a simple all
or nothing determination as to the plaintiff’s distributions, and the court’s
findings as to the intent of the parties are entitled to deference. Accordingly,
we review the court’s findings under the clearly erroneous standard.
13
The defendant also argues that ‘‘[i]f the alimony order was intended to
be based on the plaintiff’s ‘reasonable compensation,’ it could not possibly be
self-executing since determining such compensation would require forensic
accountants, and there would surely be differing opinions on that issue.’’
We disagree that calculating the plaintiff’s income using reasonable compen-
sation is irreconcilable with the determination that paragraph 4.4 of the
agreement is self-executing.
In the defendant’s principal appellate brief before this court, she recog-
nizes that the trial court in Marshall I determined that the alimony provision
was self-executing and that this court in Marshall I ‘‘accepted that notion
. . . .’’ We cannot discern that utilization of the methodology of reasonable
compensation, buttressed by the assistance of an accounting professional,
precludes paragraph 4.4 from operating in what previously has been deter-
mined to be a self-executing manner.
14
We recognize that the court, in its orders, imprecisely described its
action as reducing the plaintiff’s alimony obligation for 2008 through 2011.
Previously in its memorandum of decision, however, the court made clear
that, for the years prior to the plaintiff’s filing of his motion to modify, the
court’s function was to interpret the agreement and to determine the plain-
tiff’s income and resulting alimony obligation, not to modify the alimony
obligation. The court expressly recognized that it lacked authority ‘‘to make
any modified order retroactive past the date of service of the underlying
motion absent an agreement of the parties.’’ The court’s modification of
alimony, which reduced the plaintiff’s alimony obligation, was retroactive
to September 1, 2011.