The Articulation Trap

Parties who want to have issues reviewed on appeal bear the burden of presenting an adequate record for review. Practice Book § 61-10. For the most part, this means appellants must take the steps necessary so that the reviewing court has the information it needs to decide the appeal. Where appellees seek affirmance on an alternate basis or review of issues that may arise on remand, they are required to perfect the record on those issues.

In Connecticut practice, the primary procedural vehicle for clarifying the record is the motion for articulation as provided for in Practice Book § 66-5. Prior to 2013, the failure to seek articulation where the record was unclear could result in the denial of appellate review. Whether an ambiguity existed was not always clear to the parties, and many experienced appellate practitioners were denied review when an appellate panel discerned an ambiguity that the parties did not see. After a push by what is now the Appellate Section of the Connection Bar Association, § 61-10 was amended effective 2013 so that the appellate panel would not deny review solely on the basis of a failure to file a motion for articulation.

While parties who fail to seek articulation are no longer denied review solely on that basis, all is not rainbows and unicorns. Because appellate courts presume that the trial court acted properly in finding facts and exercising discretion, an ambiguous record normally will be read to support rather than undermine the decision under review. Thus parties should still evaluate decisions for clarity and seek articulation when necessary. If the trial court denies the motion to articulation or articulates inadequately, the moving party must file a motion for review with the court where the appeal is pending to avoid having the record read in favor of the decision below.

Parties may be hesitant to file a motion for articulation because it gives the trial court an opportunity to explain the decision in a way that eliminates error. But if there is a way to explain the decision that doesn’t require reversal, the reviewing court will surely find it. Parties are better off knowing this ahead of time so as not to waste time on fruitless issues.

Although articulations are used to explain an ambiguity or fill in a gap in the record, they are not an occasion for the trial court to modify the reasoning or result of the decision under review. When a trial court improperly modifies a decision, it is not entirely clear what the proper procedure is. Section 66-5 provides, in pertinent part:

The sole remedy of any party desiring the court having appellate jurisdiction to review the trial court’s decision on the motion filed pursuant to this section or any other correction or addition ordered by the trial court during the pendency of the appeal shall be by motion for review under Section 66-7.

Notwithstanding the foregoing, even in the absence of a motion for review, courts have disregarded inconsistent articulations in some cases such as Sosin v. Sosin, 300 Conn. 205, 242-23 (2011), and In re Christian P., 98 Conn. App. 264, 266-67 n.4 (2006), and reversed on the basis of an improper articulation in others such as State v. Wilson, 199 Conn. 417 (1986), and Koper v. Koper, 17 Conn. App. 480 (1989).

Someone reading these cases could be forgiven for thinking that an inconsistent articulation could be challenged on appeal without filing a motion for review or amended appeal. However, the Appellate Court was not so forgiving recently in Ferraro v. Ferraro, 168 Conn. App. 723, 727 n.3 (2016). In an articulation concerning the application of the child support guidelines, the trial court expressly modified its orders concerning unreimbursed medical expenses. Id. at 726. The appellant neither filed a motion for review nor amended his appeal, and the Appellate Court expressly declined to review this claim on this basis. Id. at 726-27 & n.3.

As it turned out, the modification benefited the appellant, so he was not aggrieved, and the court reversed and ordered a new hearing on financial orders on other ground, which rendered the issue moot, so there was no harm in this instance. However, it would appear now that party claiming that an articulation improperly modified the judgement needs to file a motion for review or an amended appeal or, to be safe, both to avoid forfeiting appellate review. Thus, there is yet another trap to avoid concerning articulations.

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