Fazio v. Fazio, 072820 CTCA, AC 42635

Docket Nº:AC 42635
Opinion Judge:BRIGHT, J.
Party Name:MADELINE G. FAZIO v. MICHAEL A. FAZIO
Attorney:Joseph T. O'Connor, for the appellant (plaintiff). Kevin F. Collins, for the appellee (defendant).
Judge Panel:DiPentima, C. J., and Lavine and Bright, Js.
Case Date:July 28, 2020
Court:Appellate Court of Connecticut
 
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MADELINE G. FAZIO

v.

MICHAEL A. FAZIO

No. AC 42635

Court of Appeals of Connecticut

July 28, 2020

Argued May 11-2020

Procedural History

Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the court, Hon. Stanley Novack, judge trial referee, rendered judgment dissolving 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 plaintiff appealed to this court, DiPentima,

  1. J., and Pres-cott and Harper,

Js., which reversed the trial court's judgment and remanded the matter for further proceedings; 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).

DiPentima, C. J., and Lavine and Bright, Js.

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 finding 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 marriage had broken down irretrievably with no hope of reconciliation. On May 19, 2006, the court rendered judgment dissolving the parties' marriage. The judgment incorporated by reference a separation agreement that the parties had signed on May 18, 2006, and that the court found to be ‘fair and equitable.'

‘‘Article 3.2 (a) of the separation agreement provides in relevant part: ‘Commencing on June 1, 2006, the [defendant] shall pay to the [plaintiff] unallocated alimony and child support in cash until the death of either party, the remarriage or cohabitation of the [plaintiff] pursuant to [§] 46b-86 (b) of the . . . General Statutes, or May 31, 2013, whichever event shall first occur . . . .' Article 3.2 (b) provides in relevant part: ‘Commencing on June 1, 2013, the [defendant] shall pay to the [plaintiff] . . . unallocated alimony and child support in cash until the death of either party, the remarriage of the [plaintiff], or November 30, 2019 . . . .' Additionally, article 3.6 of the separation agreement provides: ‘The [defendant's] obligation to pay alimony and support to the [plaintiff] pursuant to [a]rticle 3.2 shall be non-modifiable by either party as to the amount and duration, except (1) that the [defendant] shall have the right to seek a modification of [the] amount of alimony and support based on the [plaintiff's] earnings only in the event the [plaintiff] earns in excess of $100, 000.00 gross per year and (2) the [plaintiff] shall have the right to seek a modification of the amount of alimony and support in the event the [defendant] is unemployed for a period of six months. The [plaintiff's] 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 hearing 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).'' (Footnotes 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 termination of alimony, and, accordingly, it terminated the defendant's obligation to pay alimony effective December, 2011, the month during which the plaintiff began cohabitating. Id., 240-42. The plaintiff appealed from the judgment, claiming that the court incorrectly had interpreted article 3.2 (a) of the separation agreement to require the immediate termination of alimony. Id., 242. She contended that the parties' incorporation of § 46b-86 (b) was to allow the court to exercise its remedial 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 determination 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 evidence 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 article 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 defendant'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 successfully obtained reversal of the entire judgment. We disagree.

‘‘Determining the scope of a remand is a matter of law . . . [over which] our review is plenary.'' (Internal quotation marks omitted.) State v. Tabone, 301...

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