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Farmassony v. Farmassony

Appellate Court of Connecticut

April 19, 2016

DEAN FARMASSONY
v.
VIVIAN FARMASSONY

         Argued December 14, 2015

          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, Dewey, J.; judgment dissolving the marriage and granting certain other relief; thereafter, the court, Pinkus, J., granted the plaintiff's motion for modification of child support and for an accounting; subsequently, the court, Pinkus, J., denied the defendant's motion for reargument and rectification, and the defendant appealed and the plaintiff cross appealed to this court; thereafter, the court, Pinkus, J., issued an articulation of its decision.

          Reversed in part; judgment directed.

          SYLLABUS

         The defendant, whose marriage to the plaintiff had been dissolved, appealed to this court from the judgment of the trial court ordering her to reimburse the plaintiff for sums he had paid to her as court-ordered contributions toward child care expenses for their minor children after she had ceased to incur such expenses. The defendant claimed that retroactive reimbursement of child care expenses was barred by the statute (§ 46b-86) pertaining to modification of support orders. The court had entered a child support order as part of its judgment of dissolution, as provided in the parties' separation agreement, which required the plaintiff to pay child support to the defendant in accordance with the child support and arrearage guidelines (§ 46b-215a-1) in the Regulations of Connecticut State Agencies. The separation agreement also contained a provision for attorney's fees if either party intentionally breached the agreement. Thereafter, the plaintiff filed a motion for modification of child support in which he claimed, inter alia, that a substantial change of circumstances had occurred since the child support order was entered in that neither of the minor children had attended child care in nearly seven years. The plaintiff sought credit for his overpayment of child care costs and an award of attorney's fees pursuant to the separation agreement on the ground that the defendant had intentionally breached the agreement. The plaintiff also sought an award of interest pursuant to the statute (§ 37-3a) pertaining to the recovery of interest as damages. The court denied the plaintiff's requests for attorney's fees and interest without holding evidentiary hearings on those requests, and the plaintiff cross appealed to this court.

         Held :

         1. The trial court's order that the defendant reimburse the plaintiff for his overpayments of child support to her was prohibited by § 46b-86, as the award to the defendant of child support had included child care costs as defined in § 46b-215a-1 of the child support and arrearage guidelines and in the parties' separation agreement, and, thus, was not subject to retroactive modification; accordingly, this court reversed the trial court's order that the defendant reimburse the plaintiff for his overpayments of child support.

         2. The trial court did not abuse its discretion when it denied the plaintiff's requests for attorney's fees pursuant to the parties' separation agreement and interest pursuant to § 37-3a: that court's finding that there was no evidence that the defendant had intentionally breached the separation agreement was not clearly erroneous, and there was no evidence that the defendant had wrongly withheld the money that the plaintiff had overpaid; furthermore, the plaintiff's claim that the trial court erred by not conducting evidentiary hearings on his requests for attorney's fees and interest could not be reviewed, the plaintiff having failed to object or to ask the court to conduct hearings when it indicated that it would decide those issues on the briefs; moreover, in light of this court's reversal of the trial court's order that the defendant repay the plaintiff for the overpayments of child care costs he had made to her, this court did not need to decide the plaintiff's claim that the trial court abused its discretion by ordering repayment at a certain monthly rate.

         Sandra M. McDonough, for the appellant-cross appellee (defendant).

         David V. DeRosa, for the appellee-cross appellant (plaintiff).

         DiPentima, C. J., and Beach and Sheldon, Js. SHELDON, J. In this opinion the other judges concurred.

          OPINION

          SHELDON, J.

          [164 Conn.App. 667] The defendant, Vivian Farmassony, whose marriage to the plaintiff, Dean Farmassony, was dissolved in September, 2002, appeals from the post-judgment order of the trial court requiring her to reimburse the plaintiff for all sums he had paid to her as court-ordered contributions toward her child care expenses for their minor children after she had ceased to incur such expenses on August 14, 2006. The defendant claims that the trial court erred by (1) requiring her to repay all such overpayments to the plaintiff, retroactive to August 14, 2006, because the ordering of such retroactive modifications of support orders is barred by General Statutes § 46b-86; or, in the alternative, (2) failing to deny the plaintiff's claim for retroactive repayment of overpaid child care expenses on the theory of laches. In his cross appeal, the plaintiff claims that the trial court erred by (1) denying his request for attorney's fees in connection with his motion for modification without holding an evidentiary hearing at which he could present evidence in support of that request; (2) denying his request for an award of interest on the sums he overpaid to the plaintiff for child care expenses, under General Statutes § 37-3a, without holding an evidentiary hearing at which he could present evidence in support of that request; and (3) allowing the defendant to reimburse him for the sums he had overpaid her for child care expenses at the rate of $100 per month. We reverse the judgment ordering the [164 Conn.App. 668] retroactive reimbursement of child care expenses because such an order is barred by § 46b-86. We affirm the judgment denying the plaintiff's requests for awards of attorney's fees and statutory interest. Because we reverse the award of retroactive reimbursement, we need not reach the defendant's claim of laches or the plaintiff's claim regarding the rate of reimbursement.

         The following facts and procedural history are relevant to our resolution of these appeals. The parties' marriage was dissolved on September 20, 2002, with a separation agreement incorporated by reference into the dissolution judgment. At the time of dissolution, they had two minor children, ages eight and five. A child support order was entered as part of the dissolution judgment, as provided in the separation agreement. That order provided, in relevant part: " The [plaintiff] shall pay to the [defendant] as child support the weekly amount of $231.75 which is in accordance with the Child Support Guidelines. This represents a payment of $167.00 as child support and a contribution of $64.75 toward child care. . . . Child support shall terminate at age 19, graduation from high school or emancipation, whichever shall occur ...


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