Date: 01-02-2018

Case Style:

Case Number: AC 41216

Judge: Alvord

Court: Connecticut Court of Appeals

Plaintiff's Attorney:

Alexander J. Cuda

Defendant's Attorney:

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Description: 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 incorporated into the dissolution judgment, and calculating the alimony arrearage 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 obligation on the basis of his W-2 income without considering the K-1 distributions 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-1distributions from A Co. were to be included in the plaintiff’s pre-taxincome 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 alimony 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 purposes 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’ separation 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 otherthan its granting of the plaintiff’s motion to modify alimony and calculation 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 compensation 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 wasnot, 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 circumstances, reduced his alimony obligation to zero retroactive to the daya fter he served the defendant with his motion to modify alimony.Argued May 15—officially released October 6, 2020Procedural History Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district 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,Sheldonand Norcott,Js.,which reversed in part the trial court’s judgment and remanded the case for further proceedings; subsequently, 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, andthe defendant appealed and the plaintiff cross appealed to this court.

Outcome: Affirmed.

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