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*********************************************** 
MADELINE G. FAZIO v. MICHAEL A. FAZIO

(AC 42635)

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

Syllabus

The plaintiff, whose marriage to the defendant previously had been dissolved, appealed to this court from the judgment of the trial court

granting the defendant’s motion to modify or to terminate alimony.

Pursuant to article 3.2 (a) of the parties’ separation agreement, which

had been incorporated into the dissolution judgment, the defendant was

required to pay the plaintiff unallocated alimony until, among other

things, the cohabitation of the plaintiff pursuant to statute (§ 46b-86

(b)), or May 31, 2013, whichever event occurred first. The trial court

concluded that the plaintiff was cohabitating with another person as

defined by § 46b-86 (b) and determined that article 3.2 (a) of the separation agreement was clear and unambiguous and that cohabitation

required the immediate termination of alimony. The plaintiff appealed

to this court, which reversed the trial court’s judgment and ordered a

remand, concluding that article 3.2 (a) was ambiguous and that findings

of fact were necessary as to the parties’ intent regarding whether that

article incorporated the remedial aspects of § 46b-86 (b). Thereafter, on

remand, the trial court, following an evidentiary hearing, determined

that the parties had intended that the plaintiff’s cohabitation would

result in the immediate termination of her alimony under article 3.2 (a)

of the separation agreement, and, accordingly, it granted the defendant’s

motion to modify or to terminate alimony and terminated his obligation

to pay alimony. Held:

1. The plaintiff could not prevail on her claim that the trial court erred by

concluding that it was bound by the finding of cohabitation made by a

prior judge in the case; the plaintiff did not challenge that finding in

her prior appeal, and, after this court issued its remand order in that

appeal, which was limited to the consideration of whether the parties

had intended to incorporate the remedial aspects of § 46b-86 (b) into

article 3.2 (a) of the separation agreement, the plaintiff no longer had

the ability to raise the cohabitation finding as an issue on remand, and,

therefore, the trial court properly construed the limited remand order

and properly determined that it was bound by the unchallenged finding

of cohabitation.

2. The plaintiff’s claim that the trial court erred by failing to make a factual

finding as to the parties’ intent regarding whether article 3.2 (a) of the

separation agreement incorporated the remedial aspects of § 46b-86 (b)

was without merit: that court properly followed this court’s remand

order and, although it did not state specifically that the parties intended

that the remedial aspects of § 46b-86 (b) would not apply if the plaintiff

cohabitated, it was not required to do so; moreover, the court, on the

basis of the evidence presented and its credibility determinations, properly considered the intent of the parties in drafting article 3.2 (a) and

concluded that they intended the immediate, nondiscretionary, termination of alimony in the event of the plaintiff’s cohabitation, and implicit

in that finding is that the parties did not intend that the remedial aspects

of § 46b-86 (b) would apply, and the plaintiff did not claim that the

court’s findings were clearly erroneous or unsupported by the evidence

presented at the hearing on remand.

3. The plaintiff’s claim that the trial court erred by exceeding the scope of

the remand order in the prior appeal when it made unnecessary and

binding factual findings concerning article 3.2 (b) of the separation

agreement was unavailing, as that court’s consideration of article 3.2

(b) was for the limited purpose of ascertaining the parties’ intent as to

article 3.2 (a) and nothing more.

Argued May 11—officially released July 28, 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, C. J., and Prescott 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).
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 § 46b86 (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 Conn.

708, 713–14, 23 A.3d 689 (2011). ‘‘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.’’ (Citations omitted; emphasis omitted; internal quotation marks omitted.) Wendland v. Ridgefield Construction Services,

Inc., 190 Conn. 791, 794–95, 462 A.2d 1043 (1983).

In Fazio I, this court was called on, by the limited

issue raised by the plaintiff in her appeal,3

‘‘to interpret

a separation agreement incorporated into a dissolution

judgment to determine whether the parties intended

by their agreement that, in the event of cohabitation,

alimony must be immediately and irrevocably terminated, or whether the parties intended that the court

be permitted to exercise the equitable and remedial

powers set forth in . . . § 46b-86 (b) to consider suspending or modifying alimony instead of irrevocably

terminating it.’’ Fazio I, supra, 162 Conn. App. 237. We

then concluded that ‘‘the court [had been] required to

make a finding 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),’’ 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.

A thorough examination of this court’s opinion in

Fazio I leads us to conclude that the remand order in

that appeal was limited to the consideration of whether

the parties had intended to incorporate into article 3.2

(a) of the separation agreement the remedial aspects

of § 46b-86 (b). The opinion was clear in setting forth

the scope of the remand order. This court did not order

a new trial on the defendant’s motion to modify or to

terminate alimony.

Moreover, the plaintiff did not challenge in Fazio I

Judge Emons’ finding that she had cohabitated, which,

certainly, was a finding necessary to the judgment. ‘‘It is

well established that when a party brings a subsequent

appeal, it cannot raise questions which were or could

have been answered in its former appeals. See Hartford

National Bank & Trust Co. v. Tucker, 195 Conn. 218,

222, 487 A.2d 528, cert. denied, 474 U.S. 845, 106 S. Ct.

135, 88 L. Ed. 2d 111 (1985). Failure to raise an issue

in an initial appeal to this court constitutes a waiver of

the right to bring the claim. Hryniewicz v. Wilson, 51

Conn. App. 440, 446, 722 A.2d 288 (1999). . . .

‘‘Furthermore, the [trial] court, on remand, [is] bound

by the law of the case doctrine. Underlying the law of

the case doctrine is the view that [a] judge should hesitate to change his own rulings in a case and should be

even more reluctant to overrule those of another judge.

. . . The doctrine provides that [w]here a matter has

previously been ruled upon interlocutorily, 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. . . . Wasko v.

Manella, 87 Conn. App. 390, 395, 865 A.2d 1223 (2005).

Intervening appellate proceedings, however, change the

nature of this seemingly discretionary doctrine. [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 omitted.) Detar v.

Coast Venture XXVX, Inc., 91 Conn. App. 263, 266–67,

880 A.2d 180 (2005).

The plaintiff did not challenge in the previous appeal

Judge Emons’ finding that she had cohabitated. The

plaintiff briefed only one issue in that appeal, namely,

whether the remedial aspects of § 46b-86 (b) applied

to article 3.2 (a) of the separation agreement. After this

court issued a limited remand order in Fazio I, the

plaintiff no longer had the ability to raise the cohabitation finding as an issue on remand. The trial court prop-
erly construed the limited remand set forth in Fazio I,

and it properly determined that it was bound by Judge

Emons’ unchallenged finding of cohabitation.

II

The plaintiff next claims that the court ‘‘failed to

make a factual finding as to the parties’ intent regarding

whether article 3.2 (a) of their agreement incorporated

the remedial aspects of § 46b-86 (b)’’ but, instead, found

that ‘‘the parties had intended that [the] court should

be without discretion to deny the defendant’s request

for termination once the court found that the plaintiff

lived with another person under circumstances [that]

altered her financial needs.’’ The defendant argues that

‘‘[t]he . . . court did make factual findings of the parties’ intent regarding article 3.2 (a) thereby rendering

the remedial aspects of § 46b-86 (b) . . . moot.’’ We

conclude that the court properly followed the remand

order of this court, and it determined that the parties

had intended for immediate termination of alimony if

the plaintiff cohabitated.

‘‘It is the duty of the trial court on remand to comply

strictly with the mandate of [this] 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 [this] 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.’’ (Internal quotation marks omitted.) Ginsberg & Ginsberg, LLC v. Alexandria Estates, LLC, 149

Conn. App. 160, 165, 88 A.3d 1254 (2014). We exercise

a plenary standard of review in determining whether

the trial court has complied with the strict mandates

of a remand order. See id., 165–66.

As explained in part I of this opinion, this court concluded in Fazio I that ‘‘the [trial] court [had been]

required to make a finding of fact as to the parties’

intent regarding whether article 3.2 (a) of the separation

agreement incorporated the remedial aspects of § 46b86 (b),’’ 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.’’ Fazio I, supra, 162 Conn. App.

250–51.

On remand, Judge Colin held a hearing and considered the evidence presented by the parties. He specifically found that the defendant’s testimony was credible

and that the plaintiff’s testimony was not credible. In

his written decision, after discussing the evidence, he

determined that the parties had intended that the plaintiff’s cohabitation would result in the immediate termination of her alimony under article 3.2 (a) of the separation agreement. Although Judge Colin did not state
specifically that the parties intended that the remedial

aspects of § 46b-86 (b) would not apply if the plaintiff

cohabitated, he was not required to do so. Judge Colin,

on the basis of the evidence presented, properly considered the intent of the parties in drafting article 3.2 (a),

and he concluded that they intended the immediate,

nondiscretionary, termination of alimony in the event

of the plaintiff’s cohabitation. Implicit in that finding is

that the parties had no intent that the remedial aspects

of § 46b-86 (b) would apply. Significantly, the plaintiff

does not claim that Judge Colin’s findings were clearly

erroneous or unsupported by the evidence presented

at the remand hearing. Accordingly, the plaintiff’s claim

has no merit.

III

The plaintiff also claims that the court erred by

exceeding the scope of the remand order in Fazio I

when it made unnecessary and binding factual findings

concerning article 3.2 (b) of the separation agreement.

The defendant argues that the plaintiff’s claim is illogical because the plaintiff testified, without objection,

during the remand hearing, on the meaning of article

3.2 (b), and that she, therefore, did not object to the

trial court’s consideration of article 3.2 (b). We conclude

that the court’s consideration of article 3.2 (b) was for

the limited purpose of finding the parties’ intent as to

article 3.2 (a) and nothing more.

We exercise a plenary standard of review in determining whether the trial court has complied with, or

exceeded the scope of, our remand order. See, e.g.,

Ginsberg & Ginsberg, LLC v. Alexandria Estates, LLC,

supra, 149 Conn. App. 165–66.

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) . . . or May 31, 2013, whichever event shall first occur . . . .’’

Article 3.2 (b) of the separation agreement 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 . . . .’’ According to the parties’ separation

agreement, unless a named event occurs, the first period

of alimony, pursuant to article 3.2 (a), runs from June 1,

2006 to May 31, 2013, and the second period of alimony,

pursuant to article 3.2 (b), runs from June 1, 2013 to

November 30, 2019.

The plaintiff argues that Judge Emons terminated

alimony only under article 3.2 (a) of the separation

agreement and that article 3.2 (a) concerns only the

first alimony period set forth in the agreement. She
further argues that Judge Colin, on remand in Fazio I,

was ordered by this court to determine the intent of

the parties regarding only article 3.2 (a) on the basis

that article 3.2 (a) was ambiguous. She contends that

Judge Colin did not limit himself to the dictates of the

remand order but that he also substantively reformed

the clear and unambiguous language of article 3.2 (b)

by finding that the list of events resulting in the termination of alimony in that particular article, which concerns

only the second period of alimony, contained ‘‘a typographical error,’’ and that he then improperly terminated alimony for both periods. We disagree that the

court terminated alimony for both periods.

In his April 25, 2014 posttrial brief to Judge Emons,

in support of his motion to modify or to terminate

alimony, the defendant specifically relied on the language of 3.2 (a) of the separation agreement, arguing:

‘‘Article III provides the terms for [a]limony and [s]upport and the [d]efendant, in the subject motion, relies

specifically on [article] 3.2 (a) . . . .’’ (Emphasis

added.) The defendant did not mention the second

period of alimony under section 3.2 (b) of the parties’

separation agreement. Judge Emons, in her decision,

also did not mention the second period of alimony under

article 3.2 (b) but, rather, held that the defendant’s

obligation to pay alimony was terminated because ‘‘the

court must enforce [article] 3.2 (a) of the separation

agreement effective December, 2011.’’ In reviewing

Judge Emons’ decision, this court noted: ‘‘The plaintiff’s

sole claim on appeal is that the court improperly interpreted article 3.2 (a) of the separation agreement

. . . .’’ Fazio I, supra, 162 Conn. App. 242.

Having thoroughly examined Fazio I and Judge

Colin’s decision on remand, we conclude that the statement in Judge Colin’s decision regarding article 3.2 (b)

of the separation agreement was meant only to aid

the court in ascertaining the parties’ intent in drafting

article 3.2 (a), which this court in Fazio I had found

to be ambiguous. Article 3.2 (b) was not at issue in

the original trial court decision of Judge Emons. The

construction of article 3.2 (b), including whether it is

ambiguous, whether reformation is appropriate, or

whether the plaintiff is entitled to alimony under it, was

not raised before Judge Emons, was not before this

court in Fazio I, was not before Judge Colin, and is

not before this court presently.

The judgment is affirmed.

In the opinion the other judges concurred.

1 The children all have reached the age of majority, and child support no

longer is at issue.

2 General Statutes § 46b-86 (b) provides: ‘‘In an action for divorce, dissolution of marriage, legal separation or annulment brought by a spouse, in

which a final judgment has been entered providing for the payment of

periodic alimony by one party to the other spouse, the Superior Court may,

in its discretion and upon notice and hearing, modify such judgment and

suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person
under circumstances which the court finds should result in the modification,

suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs

of that party. In the event that a final judgment incorporates a provision of

an agreement in which the parties agree to circumstances, other than as

provided in this subsection, under which alimony will be modified, including

suspension, reduction, or termination of alimony, the court shall enforce

the provision of such agreement and enter orders in accordance therewith.’’

3 This court explained: ‘‘The plaintiff’s sole claim on appeal is that the

court improperly interpreted article 3.2 (a) of the separation agreement to

require termination in the event that the plaintiff cohabitated with another

person, rather than to allow the court to exercise its remedial powers

pursuant to § 46b-86 (b) and consider other remedies such as the temporary

suspension or modification of alimony.’’ Fazio I, supra, 162 Conn. App.

242. We also explained that ‘‘[t]he plaintiff [did] not challenge the court’s

determination that she cohabitated as defined by § 46b-86 (b).’’ Id., 240 n.2.