Behrns v. Behrns

• Decision Date: 09 November 2010
• Docket Number: No. 30734.,30734.
• Citation: 124 Conn.App. 794,6 A.3d 184
• Parties: Linda Mae BEHRNS v. Ronald Wayne BEHRNS.
• Court: Connecticut Court of Appeals

6 A.3d 184

124 Conn.App. 794

Linda Mae BEHRNS

v.Ronald Wayne BEHRNS.

No. 30734.

Appellate Court of Connecticut.

Argued June 3, 2010.

Decided Nov. 9, 2010.

George J. Markley, Fairfield, with whom, on the brief, was Veronica E. Reich, Bridgeport, for the appellant (defendant).

James H. Lee, Fairfield, with whom, on the brief, was Kirk A. Bennett, Wilton, for the appellee (plaintiff).

ROBINSON, FLYNN and SULLIVAN, Js.

FLYNN, J.

Before us is the third appeal arising out of a separation agreement of the parties, the plaintiff,Linda Mae Behrns, and the defendant, Ronald Wayne Behrns, which, at their request, had been incorporated into their decree of dissolution. This most recent appeal arises from the judgment of the trial court, finding that the defendant was in wilful contempt of the original court order requiring him to pay alimony and child support to the plaintiff every other week. On appeal, the defendant claims that the court improperly (1) failed to follow the mandate set forth in Behrns v. Behrns, 80 Conn.App. 286, 835 A.2d 68 (2003), cert. denied, 267 Conn. 914, 840 A.2d 1173 (2004) ( Behrns I ), that a new hearing on the plaintiff's motion for contempt, including a reconsideration of the meaning and import of the agreement, was required; (2) found him in wilful contempt despite the remand order of Behrns v. Behrns, 102 Conn.App. 96, 924 A.2d 883 (2007) ( Behrns II ), which, he alleges, limited the court's authority to rendering a decision on alimony, child support and attorney's fees; (3) found that the defendant's failure to pay was willful; (4) interpreted the parties' agreement and ordered him to pay $84,635 in arrearages, failing to take into account his loss of salary and wages, and instead relying on his supposed earning capacity; (5) awarded attorney's fees to the plaintiff; (6) awarded interest on the arrearages and (7) ordered the defendant not to transfer, assign or pledge any assets without leave of the court. We affirm the judgment of the trial court.

The following facts, as gleaned from the record, and procedural history are relevant to our resolution of the defendant's claims. The parties, who were married in 1964, contemplated divorce in 1984, and, at that time, the plaintiff retained an attorney who drafted a separation agreement. The parties reconciled for a time, but in 1986, they decided to end their marriage. By that time, both parties were represented by separate counsel. The defendant suggested a change in the separation agreement, to which the plaintiff agreed. That changewas incorporated into the separation agreement as § 5.3. Section 5.3 of the agreement provides that "[a]ll the payments ... [of alimony and child support] shall increase or decrease, by an amount equal to the cost of living as measured by the [c]onsumer [p]rice [i]ndex, or the percentage yearly increase or decrease in the [defendant's] salary and wages, whichever is less...." In 1986, the trial court, Harrigan, J., rendered judgment dissolving the parties' marriage. The judgment of dissolution incorporated the written separation agreement between the parties. Pursuant to the dissolution agreement and the subsequent judgment, the defendant was obligated to pay to the plaintiff $815 every other week as alimony and $325 every other week as child support.

In 1990, the defendant lost his job with his employer, GTE Corporation, along with his salary and wages. He subsequently stopped paying alimony and child support. For some years thereafter, the plaintiff demanded payment from the defendant. In April, 2001, the plaintiff filed a postjudgment motion for contempt, alleging that the defendant had failed to makeany alimony payments since July, 1990.¹ The defendant responded by claiming that in accordance with the separation agreement, his loss of income mandated a reduction in alimony and child support. After hearing evidence concerning the plaintiff's motion for contempt, the trial court, Dewey, J., denied the plaintiff's motion for contempt, findingthat § 5.3 was clear, unambiguous and self-executing and that, under the judgment of dissolution, the defendant did not owe any alimony or child support. Behrns v. Behrns, supra, 80 Conn.App. at 288, 835 A.2d 68. The plaintiff appealed from that judgment in Behrns I, in which we reversed the judgment of the trial court, concluding that the court improperly had determined that § 5.3 of the agreement was self-executing. We also concluded that the court abused its discretion in denying the plaintiff's postjudgment motion for contempt on the basis of its erroneous factual findings, and we remanded the case for a new hearing on the plaintiff's motion for contempt. Id., at 292, 835 A.2d 68.

On remand, the court, Owens, J., found that this was "not the classic 'wilful' case" of contempt with which the court usually was presented, and it stated that it would "not enter a judgment of contempt [at that time]." The court also determined that the defendant's attorney was the scrivener of the agreement and that, pursuant to the disputed provision, the defendant was liable for an amount decreased by the lesser of the change in the price index or the percentage decrease in his salary and wages, and it awarded to the plaintiff "the sum of $96,560 for alimony and child support and $45,339.85 in counsel fees, for a total of $141,889.85." The defendant appealed from that judgment. See Behrns v. Behrns, supra, 102 Conn.App. at 96, 924 A.2d 883. On appeal, the defendant claimed, inter alia, that the court had construed the parties' separation agreement improperly and erroneously had found that he had drafted the agreement and, as a result, had erred when it construed ambiguities in the agreement against him. Id., at 98, 924 A.2d 883. We agreed and reversed the judgment of the court, determining that the court incorrectly had concluded that it was undisputed that the defendant's attorney had drafted the disputed provision; therefore, pursuant to Sturman v. Socha, 191 Conn. 1, 463 A.2d 527 (1983), we concludedthat the agreement should not have been construed against the defendant. Concluding that the court's construction against the defendant may have been prejudicial, we then reversed the judgment in part and remanded the case for further proceedings on the issues of alimony, child support and attorney's fees. Behrns v. Behrns, supra, 102 Conn.App. at 101, 924 A.2d 883. We affirmed the judgment in all other respects. Id.

On December 8, 2008, the trial court, Pinkus, J., rendered judgment, which is the subject of the present appeal. The court found the defendant to have been in wilful contempt of the court's orders regarding child support and alimony, especiallyin light of his ability to pay support during the time that he had refused.² The court awarded the plaintiff $57,050 in unpaid alimony and $27,185 in unpaid child support, plus interest, in accordance with General Statutes § 37-3a, from January 1, 1998.³ The court also awarded the plaintiff attorney's fees in the amount of $82,600.51. This appeal followed.

I

The defendant first claims that the court improperly failed to follow a mandate as set forth by this court in Behrns I. Specifically, he argues: "It is clear ... that the [trial] court never accepted the fact that it was obligated to hold a hearing on the meaning and import of [§] 5.3 ... despite the express mandate of the Appellate Court in Behrns I that the case be remanded'with direction to conduct a new hearing on the plaintiff's motion for contempt' ... [which] would include a determination of the meaning and import of the ambiguous language." (Emphasis in original.) We disagree. ⁴

"Well 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 guiding principle that the trial court must observe.... Compliance means that the direction is not deviated from. The trial court cannot adjudicate rights and duties not within the scope of the remand.... It is the duty of the trial court on remand to comply strictly with the mandate of the appellate court according to its true intent and meaning. No judgment other than that directed or permitted by the reviewing court may be rendered, even though it may be one that the appellate court might have directed. The trial court should examine the mandate and the opinion of the reviewing court and proceed in conformity with the views expressed therein.... We have also cautioned, however, that our remand orders should not be construed so narrowly as to prohibit a trial court from considering matters relevant to the issues uponwhich 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." (Citation omitted; internalquotation marks omitted.) Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 65-66, 689 A.2d 1097 (1997).

The defendant argues that the court was required to follow a mandate set forth by the Appellate Court in Behrns I. We simply do not agree with such an assertion. In the case before us, which is the appeal from the decision of the court, Pinkus, J., in the remand of this case in Behrns II, we conclude that the court was bound to follow the mandate set forth by this court specifically in Behrns II. Whatever direction or mandate we offered to the court in Behrns I, was relevant only to the case as remanded in Behrns I. Such directives could not be binding on the court in a subsequent remand unless we redirected the court in such a manner.

Furthermore, even if we were to construe the defendant's claim more broadly to be that the court was required to consider the ambiguity in § 5.3 in order to follow our mandate that it hold a new hearing on the issues of the orders of alimony, child support and...