94 Conn. App. 416

JOAN BURKE v. BRIEN J. BURKE

(AC 25447)

DiPentima, Gruendel and Dupont, Js.

*417Argued January 17

officially released March 21, 2006

Sandra M. McDonough, for the appellant (plaintiff).

Janis M. Laliberte, with whom was Margaret E. Sullivan, for the appellee (defendant).

Opinion

GRUENDEL, J.

The plaintiff, Joan Burke, appeals from the judgment of the trial court granting the motion of the defendant, Brien J. Burke, to dismiss the plaintiffs motion for postjudgment modification of child support and alimony orders. On appeal, the plaintiff claims that the court improperly (1) refused to enter an articu*418lation of its decision and (2) granted the defendant’s motion to dismiss. We agree with the plaintiffs second claim and, accordingly, reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the appeal. The parties were married on September 8, 1973, and had four children during their marriage. The parties began proceedings to dissolve their marriage on April 17,1990. On January 28, 1991, the court rendered judgment dissolving the marriage. The judgment included custodial and financial orders in accordance with an oral agreement between the parties that was recited on the record.1 The court ordered, in relevant part, that “the [defendant will pay to the [pjlaintiff the sum of Two Hundred Forty ($240.00) Dollars per week as unallocated alimony and child support until the death of either party, the remarriage of the plaintiff, the youngest child’s attaining the age of [eighteen (18) or the cohabitation of the plaintiff .. . .”

On April 20, 1995, after the two oldest children reached the age of majority,2 the court modified the terms of the judgment. The defendant was ordered to pay $240 per week unallocated alimony and support until June, 1995, when the second oldest child graduated from high school. Thereafter, the defendant’s support obligations for the remaining two children would be $200 per week, with alimony payments of $1 per year “under the terms and conditions of the judgment.” When the third oldest child became eighteen years old, the defendant’s support obligation for the fourth child *419would be adjusted to an amount consistent with the child support guidelines then in effect.

On October 31, 1996, the defendant sought modification of the support award due to his loss of employment. The court ordered the modification on November 14, 1996, and reduced the defendant’s support obligation to $135 per week. On September 5, 2003, two days before the youngest child was to become eighteen years old, the plaintiff sought modification of the alimony award.3 In support of her motion, the plaintiff alleged that she had become permanently disabled from a work-related back injury.4 The defendant filed a motion to dismiss the plaintiffs amended motion for modification on December 5,2003, claiming that under the unambiguous terms of the original dissolution judgment, his alimony and support obligation ended on September 7, 2003, when the youngest child reached the age of eighteen. On December 9, 2003, the court granted the defendant’s motion to dismiss, stating that the “court order clearly indicates that alimony is to terminate, if not earlier, on September 7, 2003.”

The plaintiff filed a motion to open and to reargue the court’s decision on the motion to dismiss on January 26, 2004. On February 26, 2004, the court declined to vacate its order. The plaintiff filed a second motion to open and to reargue on March 16, 2004, which the court denied on April 23, 2004. This appeal followed.

I

The plaintiff first claims that the court improperly failed to render a reasoned decision or articulation *420explaining why the alimony order was not modifiable. Specifically, she argues that the court’s denial of her motion for articulation leaves her with insufficient information on which to base her appeal. We conclude that the plaintiffs claim is not a proper subject for review on appeal.

The following additional facts are relevant to the plaintiffs first claim. On March 17, 2004, the plaintiff filed a motion for articulation with the trial court, which was denied on April 23, 2004. The plaintiff then filed a motion for articulation with this court on June 14, 2004. The motion requested an order compelling the trial court to articulate its December 9, 2003 decision granting the defendant’s motion to dismiss. Subsequently, on October 26, 2004, the plaintiff filed a motion to compel articulation with this court, seeking essentially the same relief as requested in her previous motion. On November 9, 2004, this court dismissed both of the plaintiffs motions as improper, but sua sponte granted the plaintiff permission to file a late motion for articulation. The plaintiff filed a late motion for articulation with the trial court on November 16, 2004, which the court denied on December 2, 2004. The plaintiff then filed with this court a motion for review of the trial court’s denial of her motion. On January 27, 2005, this court granted review of the motion, but denied the relief requested therein.

Practice Book § 66-5 provides in relevant part that “[t]he sole remedy of any party desiring the court having appellate jurisdiction to review the trial court’s decision on the motion [for articulation] filed pursuant to this section . . . shall be by motion for review under Section 66-7. . . .” (Emphasis added.) The plaintiffs pursuit of review and remedy through appeal is, therefore, inappropriate. See Weber’s Nursery, Inc. v. Prior, 71 Conn. App. 433, 438, 802 A.2d 206 (2002); Andrews v. Commissioner of Correction, 45 Conn. App. 242, 245-*42146, 695 A.2d 20, cert. denied, 242 Conn. 910, 697 A.2d 364 (1997); Santoro v. Santoro, 33 Conn. App. 839, 842, 639 A.2d 1044 (1994). Moreover, we note that the plaintiff already has received appellate review of her claim through the proper procedures. This court, on January 27, 2005, granted the plaintiffs motion for review of the trial court’s denial of her motion for articulation, but denied the requested relief of ordering articulation. Accordingly, we decline to review that claim again on appeal.

II

The plaintiff next claims that the court improperly granted the defendant’s motion to dismiss her motion for postjudgment modification. Specifically, she argues that the court improperly determined that the alimony and support order was nonmodifiable and, therefore, never reached the merits of her motion. We agree.

The plaintiffs claim challenges the court’s construction of the judgment ordering the defendant to make alimony and support payments. “The construction of a judgment is a question of law for the court. ... As a general rule, judgments are to be construed in the same fashion as other written instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the judgment.” (Internal quotation marks omitted.) Weinstein v. Weinstein, 87 Conn. App. 699, 708, 867 A.2d 111, cert. granted on other grounds, 273 Conn. 934, 875 A.2d 545 (2005). “The judgment should admit of a consistent construction as a whole. ... To determine the meaning of a judgment, we must ascertain the intent of the court from the language used and, if necessary, the surrounding circumstances.” (Citation omitted; internal quotation marks omitted.) Ottiano v. Shetucket Plumbing Supply Co., 61 Conn. App. 648, 652, 767 A.2d 128 (2001). We review such questions of law de novo. Weinstein v. Weinstein, supra, 708.

*422General Statutes § 46b-86 (a) provides in relevant part: “Unless and to the extent that the decree precludes modification, the court may order . . . any final order for the periodic payment of permanent alimony or support ... at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party . . . ,”5 “This statutory provision suggests a legislative preference favoring the modifiability of orders for periodic alimony . . . [and requires that] the decree itself must preclude modification for this relief to be unavailable. ... If an order for periodic alimony is meant to be nonmodifiable, the decree must contain language to that effect. . . . Such a preclusion of modification must be clear and unambiguous.6 ... If a provision purportedly precluding modification is ambiguous, the order will be held to be modifiable.” (Citations omitted; internal quotation marks omitted.) Rau v. Rau, 37 Conn. App. 209, 211-12, 655 A.2d 800 (1995).

As a threshold matter, we identify the scope of our review of the judgment. “In determining whether the alimony award is modifiable or nonmodifiable, only the dissolution decree itself7 may be used.” Id., 212; Lilley v. Lilley, 6 Conn. App. 253, 256, 504 A.2d 563, cert. *423denied, 200 Conn. 801, 509 A.2d 516 (1986).8Here, when issuing the order dissolving the marriage, the court stated that “the order for unallocated alimony and child support shall terminate upon the earliest to occur of the following events: (1) the death of either of the parties; (2) the remarriage of the plaintiff; or (3) the date when the youngest child shall reach the age of eighteen years.”9 The defendant relies on that language regarding termination to establish that alimony was nonmodil'iable.

We conclude that the language lacks the clear and unambiguous statement of nonmodifiability required by § 46b-86 (a) and the interpreting case law. Rather, we are confronted here with an ambiguous order regarding alimony. This court has treated as modifiable alimony orders with similar ambiguities. See Scoville v. Scoville, 179 Conn. 277, 280, 426 A.2d 271 (1979) (alimony award set to terminate after three years is modifiable). In Rau, this court relied on Scoville and determined that an alimony order, similarly silent as to modifiability and which would terminate after ninety-six payments, was modifiable. Rau v. Rau, supra, 37 Conn. App. 212-13. Moreover, this court addressed similar language in Lil*424ley, in which we determined that periodic alimony, payable to the defendant until her death or remarriage, was modifiable. Lilley v. Lilley, supra, 6 Conn. App. 254. Accordingly, we conclude that the court improperly determined that the judgment was nonmodifiable. The court should have reached and decided the issue of whether there was a substantial change in circumstances justifying modification of the alimony order. See Scoville v. Scoville, supra, 280.

The judgment is reversed and the case is remanded for further proceedings in accordance with law.

In this opinion the other judges concurred.

Burke v. Burke
94 Conn. App. 416

Case Details

Name
Burke v. Burke
Decision Date
Mar 21, 2006
Citations

94 Conn. App. 416

Jurisdiction
Connecticut

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