Von Kohorn v. Von Kohorn, 32504.

• Decision Date: 27 December 2011
• Docket Number: No. 32504.,32504.
• Citation: 132 Conn.App. 709,33 A.3d 809
• Court: Connecticut Court of Appeals
• Parties: Kenneth VON KOHORN v. Susan E. VON KOHORN.

132 Conn.App. 709

33 A.3d 809

Kenneth VON KOHORN

v.Susan E. VON KOHORN.

No. 32504.

Appellate Court of Connecticut.

Argued Oct. 20, 2011.Decided Dec. 27, 2011.

Kenneth J. Bartschi, with whom were Sandra M. Bevans, Hartford, and, on the brief, Susan A. Moch, Westport, for the appellant (defendant).

Samuel V. Schoonmaker IV, with whom was Wendy Dunne DiChristina, for the appellee (plaintiff).

ROBINSON, BEAR and DUPONT, Js.

ROBINSON, J.

The defendant, Susan E. Von Kohorn, appeals from the judgment of the trial court rendered in response to a motion to reargue and for clarification filed by the plaintiff, Kenneth Von Kohorn, regarding financial orders incident to a judgment of dissolution of marriage. The defendant claims on appeal that (1) the court abused its discretion when it modified sua sponte the existing alimony order from a lifetime award to a term of eight years when such relief was not sought by the plaintiff in his postjudgment motion and (2) the record was inadequate to support an award of alimony limited to a term of eight years. We agree that the court abused its discretion in modifying the alimony award sua sponte and reverse the judgment of the court.

The record reveals the following facts and procedural history. The plaintiff and the defendant married in 1979. The parties raised four children, now all adults. The plaintiff owns and runs a successful investment advisory firm. In recent years, the plaintiff hired his nephew to work at the firm, and the nephew became a 40 percent partner. The defendant never worked outside the home. Both parties are good parents and providers, and they are both in good health. The plaintiff is currently in his early sixties and the defendant is approximately six years younger.

On January 12, 2009, the plaintiff commenced the underlying marital dissolution action, alleging that the marriage had broken down irretrievably with no hope of reconciliation. On May 28, 2010, the court issued a memorandum of decision dissolving the parties' marriage. The court stated that this was an unusual case because there was no evidence indicating the cause of the marital breakdown. The court rendered various financial orders, including an order that the plaintiff pay the defendant “during his lifetime and until her death” alimony consisting of 25 percent of all gross income up to $1 million and 20 percent of all gross income over $1 million up to $2 million, with any income the plaintiff earned in excess of $2 million to be free from any claim of the defendant.

On June 15, 2010, the plaintiff filed a motion titled “motion to reargue and for clarification, post judgment.” Concerning the court's alimony order, the plaintiff first noted that the court's order did not provide that the alimony payments would terminate upon the earlier of the defendant's cohabitation as defined by General Statutes § 46b–86 (b) or her remarriage. The plaintiff stated that such provisions are “usual and customary provisions that the [c]ourt probably intended to include.” The plaintiff further stated that the defendant never asked the court to exclude those provisions from its order. By way of relief, the plaintiff's motion stated: “The [p]laintiff respectfully asks the [c]ourt to clarify the [d]ecision and expressly provide that alimony shall also terminate upon the earlier of the [d]efendant's cohabitation as defined by statute or upon her remarriage. If the [c]ourt intentionally drafted the alimony order as written, thus excluding cohabitation and remarriage as alimony termination events, then the [p]laintiff respectfully moves for reargument of such provisions.” On June 17, 2010, the defendant filed an objection to the plaintiff's motion to reargue and for clarification, in which she argued that clarification or reargument of the alimony order was unnecessary and inappropriate.

On July 13, 2010, the court issued an order granting the plaintiff's motion to reargue that provided in relevant part: “[T]he judgment is clarified as follows: Alimony shall be modified or terminated upon the defendant's cohabitation as provided by [General Statutes] § 46b–86 (b). Alimony shall terminate upon defendant's remarriage or eight years from date of judgment.” (Emphasis added.) This appeal followed.¹

The defendant first claims that the court abused its discretion when it modified sua sponte the existing alimony order from a lifetime award to a term of eight years where such relief was not requested by the plaintiff in his motion to reargue and for clarification. Because we agree with the defendant that the court's modification was improper and reverse the judgment, it is unnecessary to address the defendant's second claim that the record was inadequate to support an award of alimony limited to a term of eight years.

Our standard of review and the law relevant to the defendant's claim on appeal is as follows. “An appellate court will not disturb a trial court's orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented.... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented.... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action.... [T]o conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did.” (Internal quotation marks omitted.) Clark v. Clark, 127 Conn.App. 148, 153–54, 13 A.3d 682, cert. denied, 301 Conn. 914, 19 A.3d 1260 (2011).

“It is well recognized that our courts have inherent power to open, correct and modify judgments, but that authority is restricted by statute and the rules of practice.... A motion to open a judgment is governed by General Statutes § 52–212a and Practice Book § 17–4. Section 52–212a provides in relevant part: Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed.... Practice Book § 17–4 states essentially the same rule.” (Citation omitted; emphasis added; internal quotation marks omitted.) Richards v. Richards, 78 Conn.App. 734, 739–40, 829 A.2d 60, cert. denied, 266 Conn. 922, 835 A.2d 473 (2003).

In addition to the opening and modifying of a final judgment, Practice Book §§ 11–11 and 63–1 contemplate the filing of a motion seeking reargument of a final judgment. “[T]he purpose of a reargument is ... to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts.... It also may be used to address ... claims of law that the [movant] claimed were not addressed by the court.... [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple....” (Citations omitted; internal quotation marks omitted.) Opoku v. Grant, 63 Conn.App. 686, 692–93, 778 A.2d 981 (2001). In addition to seeking alteration of a judgment, a party may also seek clarification. “[A] motion for clarification is an appropriate procedural vehicle to ensure that the original judgment is properly effectuated.... Motions for clarification may not, however, be used to modify or to alter the substantive terms of a prior judgment ... and we look to the substance of the relief sought by the motion rather than the form to determine whether a motion is properly characterized as one seeking a clarification or a modification.” (Citations omitted; internal quotation marks omitted.) Mickey v. Mickey, 292 Conn. 597, 604–605, 974 A.2d 641 (2009). A court has broad discretion to treat a motion for clarification of a judgment or a motion to reargue a judgment as a motion to open and modify the judgment provided that the motion is filed within the four month period and the substance of the motion and the relief requested therein is sufficient to apprise the nonmovant of the purpose of the motion. See Fitzsimons v. Fitzsimons, 116 Conn.App. 449, 455 n. 5, 975 A.2d 729 (2009); Rome v. Album, 73 Conn.App. 103, 111–12, 807 A.2d 1017 (2002).

To determine whether the court in the present case abused its discretion in responding to the plaintiff's postjudgment motion, we look to the relief sought by the plaintiff in the motion in conjunction with the language of the court's response. In the plaintiff's motion, he first explains his belief that it is usual and customary for alimony orders to terminate upon the recipient's cohabitation or remarriage, and that the court likely intended to include such limitations in the original alimony award. He requests that the court correct the apparent omission by clarifying its decision to expressly provide that alimony...