McGuinness v. McGuinness

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MARGARET MCGUINNESS v. JOHN J. MCGUINNESS
(AC 36339)
Beach, Keller and Prescott, Js.
Argued December 8, 2014—officially released February 3, 2015

(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. Stanley Novack, judge trial
referee [dissolution judgment]; Emons, J. [motion to
bifurcate, order as to modification].)
Norman A. Roberts II, with whom was Tara C. Dugo,
for the appellant (plaintiff).
Kevin F. Collins, for the appellee (defendant).
Opinion

PER CURIAM. The plaintiff, Margaret McGuinness,
appeals from the trial court’s postdissolution order
determining that a provision in a separation agreement
executed between the plaintiff and the defendant, John
J. McGuinness, and incorporated as part of the judg-
ment of dissolution of the parties’ marriage, is nonmodi-
fiable. On appeal, the plaintiff claims that the court
erred in concluding that the provision at issue is non-
modifiable on the basis of the court’s misinterpretation
of the language in the separation agreement. We dismiss
the appeal on the basis of our conclusion that the court’s
postdissolution order regarding the provision at issue
is not a final judgment and, therefore, is not subject to
appeal at this time.
The following facts and procedural history are rele-
vant here. The plaintiff and the defendant were divorced
by a judicial decree on March 3, 2006. The court, Hon.
Stanley Novack, judge trial referee, incorporated by
reference the parties’ separation agreement into the
decree. Pursuant to the terms of the separation
agreement, the defendant agreed to pay the plaintiff
unallocated alimony and child support until February,
28, 2018, or until other conditions arose and terminated
the defendant’s obligations. The annual amount of unal-
located alimony and child support owed by the defen-
dant correlates to his ‘‘ ‘gross annual cash
compensation from employment.’ ’’1 The separation
agreement expressly provides that ‘‘in no event shall the
[plaintiff] participate in the [defendant’s] ‘gross annual
compensation from employment’ in excess of $900,000
per annum.’’2 (income cap provision).
In March, 2011, the plaintiff filed a postjudgment
motion to modify the unallocated alimony and child
support payments on the basis of an alleged substantial
change in circumstances; namely, that the defendant’s
income had substantially increased, the structure of the
defendant’s income had substantially changed, and the
defendant’s new employer was providing less detailed
reports of his income in comparison to his previous
employer. In September, 2013, the plaintiff filed a
motion to bifurcate the hearing on her motion to modify,
requesting that the court first determine whether the
income cap provision is modifiable. The court, Emons,
J., granted the motion and held a hearing on that spe-
cific issue in November, 2013. At the conclusion of
the hearing, the court determined that, pursuant to the
terms of the separation agreement, the income cap pro-
vision is nonmodifiable. This appeal from that ruling
followed.
We begin by discussing the final judgment issue,
which we are raising sua sponte because it is disposi-
tive. After reviewing the record, including the transcript
of the November, 2013 hearing, which seemed to indi-
cate that there would be further proceedings on the
motion to modify, we notified the parties prior to oral
argument to be prepared to address whether the appeal
had been taken from a final judgment. ‘‘The subject
matter jurisdiction of this court and our Supreme Court
is limited by statute to final judgments. . . . Our appel-
late courts lack jurisdiction to hear an appeal that is
not brought from a final judgment. . . . The lack of a
final judgment is a jurisdictional defect that mandates
dismissal. [General Statutes § 52–263]. . . . Because
our jurisdiction over appeals . . . is prescribed by stat-
ute, we must always determine the threshold question
of whether the appeal is taken from a final judgment
before considering the merits of the claim. . . .
‘‘[C]ertain otherwise interlocutory orders may be
final judgments for appeal purposes, and the courts
may deem interlocutory orders or rulings to have the
attributes of a final judgment if they fit within either
of the two prongs of the test set forth in State v. Curcio,
[191 Conn. 27, 31, 463 A.2d 566 (1983)]. . . . Under
Curcio, interlocutory orders are immediately appeal-
able if the order or ruling (1) terminates a separate and
distinct proceeding, or (2) so concludes the rights of the
parties that further proceedings cannot affect them.’’
(Citations omitted; internal quotation marks omitted.)
Harger v. Odlum, 153 Conn. App. 764, 768–69, A.3d
(2014).
‘‘The first prong of the Curcio test . . . requires that
the order being appealed from be severable from the
central cause of action so that the main action can
proceed independent of the ancillary proceeding. . . .
If the interlocutory ruling is merely a step along the
road to final judgment then it does not satisfy the first
prong of Curcio. . . . Obviously a ruling affecting the
merits of the controversy would not pass the first part
of the Curcio test. The fact, however, that the interlocu-
tory ruling does not implicate the merits of the principal
issue at the trial . . . does not necessarily render that
ruling appealable. It must appear that the interlocutory
ruling will not impact directly on any aspect of the
[action]. . . .
‘‘The second prong of the Curcio test focuses on
the nature of the right involved. It requires the parties
seeking to appeal to establish that the trial court’s order
threatens the preservation of a right already secured
to them and that that right will be irretrievably lost
and the [parties] irreparably harmed unless they may
immediately appeal. . . . One must make at least a
colorable claim that some recognized statutory or con-
stitutional right is at risk.’’ (Internal quotation marks
omitted.) Niro v. Niro, 314 Conn. 62, 68, 100 A.3d
801 (2014).
Here, the court’s postdissolution order that the
income cap provision is nonmodifiable does not satisfy
either prong of the Curcio test. Under the first prong
of Curcio, the court’s postdissolution order did not
‘‘[terminate] a separate and distinct proceeding.’’ (Inter-
nal quotation marks omitted.) Harger v. Odlum, supra,
153 Conn. App. 769. The plaintiff raised her claim
regarding the modifiability of the income cap provision
in connection with her motion to modify. Although the
court granted the plaintiff’s motion to bifurcate and
held a hearing specifically to address whether the
income cap provision is modifiable, the court’s conclu-
sion regarding the modifiability of the income cap provi-
sion did not fully resolve the motion to modify as it did
not address whether other provisions of the unallocated
alimony and child support award are modifiable.3 There-
fore, we conclude that the court’s postdissolution order
did not terminate a separate and distinct proceeding,
but was rather ‘‘ ‘a step along the road’ ’’; Niro v. Niro,
supra, 314 Conn. 68; in resolving the plaintiff’s motion
to modify.
Under the second prong of Curcio, the court’s post-
dissolution order did not ‘‘so [conclude] the rights of
the [plaintiff] that further proceedings cannot affect
them.’’ (Internal quotation marks omitted.) Harger v.
Odlum, supra, 153 Conn. App. 769. The trial court has
not fully disposed of the plaintiff’s motion to modify,
a final determination of which remains pending before
the trial court. Any future proceedings concerning the
court’s resolution of the plaintiff’s motion to modify
will further implicate the rights of the plaintiff. There-
fore, we conclude that the court’s postdissolution order
did not so conclude the plaintiff’s rights to obtain modi-
fication of the unallocated alimony and child support
payments that further proceedings cannot affect them.
The appeal is dismissed.
1
The separation agreement defines ‘‘ ‘gross annual cash compensation
from employment’ ’’ as ‘‘all employment-related payments . . . .’’
2
The quoted language contains the phrase ‘‘ ‘gross annual compensation
from employment’ ’’ rather than ‘‘ ‘gross annual cash compensation from
employment.’ ’’ (Emphasis added.) We presume that the drafters of the
separation agreement intended to input the latter phrase, which is expressly
defined in the separation agreement. Neither party has raised any claim
concerning that apparent oversight.
3
In her motion to bifurcate, the plaintiff claimed that the remainder of
her motion to modify would be ‘‘non-justiciable’’ if the trial court determined
that the income cap provision is nonmodifiable. At the conclusion of the
November, 2013 hearing, however, the court noted that a subsequent hearing
on the remainder of the plaintiff’s motion to modify would address issues
other than the modifiability of the income cap provision. In response, the
plaintiff’s counsel replied ‘‘Correct.’’