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Hamburg v. Hamburg

Court of Appeals of Connecticut

June 5, 2018

BARBARA B. HAMBURG
v.
JEFFREY R. HAMBURG

          Argued January 3, 2018

         Procedural History

         Action to enforce a foreign judgment of dissolution, brought to the Superior Court in the judicial district of New Haven, where the court, Abery-Wetstone, J., rendered a modified judgment in accordance with an agreement of the parties; thereafter, the court, Abery-Wetstone, J., granted the motion to substitute Richard Beach, the temporary administrator of the estate of the named plaintiff, as the plaintiff; subsequently, the court, Emons, J., denied the defendant's motion to dismiss the substitute plaintiff's motion to show cause for the defendant's failure to comply with certain orders and granted in part the substitute plaintiff's motion to show cause, and the defendant appealed to this court; thereafter, the court, Emons, J., granted the motion to intervene filed by Barbara A. Hamburg, and the defendant filed an amended appeal with this court; subsequently, the court, Emons, J., denied the defendant's motion for an articulation. Reversed in part; judgment directed in part; further proceedings.

          Chris R. Nelson, for the appellant (defendant).

          Richard W. Callahan, for the appellees (substitute plaintiff and intervening plaintiff).

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

          OPINION

          LAVINE, J.

         In this protracted postmarital dissolution action, the defendant, Jeffrey R. Hamburg, appeals from the judgments of the trial court (1) ordering him to pay to the estate of the deceased plaintiff, Barbara B. Hamburg (decedent), funds he had misappropriated from his children's education accounts, and (2) granting the motion to intervene filed on behalf of his daughter, Barbara A. Hamburg (Ali). On appeal, the defendant claims that the court improperly (1) denied his motion to dismiss for lack of subject matter jurisdiction and (2) granted the motion to intervene. We agree that the trial court erred when it denied the defendant's motion to dismiss but conclude that it properly granted Ali's motion to intervene. We, therefore, reverse in part and affirm in part the judgments of the trial court.

         A lengthy factual and procedural history underlies the defendant's appeal. The decedent and the defendant were married in March, 1989, and had two children: a son, Madison Hamburg, born in 1991, and a daughter, Ali, born in 1993. In 2001, the decedent commenced an action for dissolution of marriage in the Superior Court of Fulton County, Georgia, where the decedent and the defendant reached an agreement (separation agreement) that was incorporated in the Georgia court's September 5, 2002 judgment dissolving their marriage. Among other things, the judgment required the defendant to pay the decedent alimony and child support and to place funds for the children's education in certain accounts.[1]

         On April 5, 2005, the decedent filed a certified copy of the Georgia dissolution judgment in our Superior Court pursuant to General Statutes § 46b-71, [2] and the trial court domesticated the Georgia judgment. The decedent and the defendant subsequently filed numerous motions for contempt in which they claimed, primarily, that the other had failed to comply with his or her financial obligations under the separation agreement. On March 6, 2009, the court, Markle, J., issued a memorandum of decision with respect to the parties' postjudgment motions. The court found that the defendant was in wilful violation of the dissolution judgment that required him to pay the decedent $2000 per month for child support for the period of October, 2007, through February, 2009. The child support arrearage was $32, 000 at that time. The court ordered the defendant to pay the decedent $16, 000 on or before March 31, 2009, and to pay the decedent an additional $1000 a month in child support until the arrearage was paid. The court, however, denied the defendant's motion to modify his child support obligation, after finding that there had been no substantial change downward in his financial circumstances. In fact, the court found that his income had increased. With respect to the decedent's motion for contempt for the defendant's failure to pay educational and medical expenses for the children, the court ordered the decedent and the defendant to family relations for mediation.[3]

         During a hearing on June 4, 2009, Judge Markle heard evidence that, in 2005, there was $150, 000 in the education account of each child. On the date of the hearing, the defendant testified that there was then remaining $10, 050 in Madison Hamburg's account and $23, 000 in Ali's account. He also testified that he had taken the children's funds for his own use. The court again found the defendant in contempt and ordered him incarcerated until he paid $8000 to purge the contempt.

         On November 24, 2009, the decedent and the defendant appeared before the court on a motion for contempt and a motion to modify the dissolution judgment that had been filed by the decedent. The documents presented to the court demonstrated that the defendant had taken funds from the children's education accounts for his personal use. After he was advised by counsel, the defendant invoked his right to remain silent. At the request of the parties, the court continued the matter to permit the decedent and the defendant to negotiate a settlement.

         On December 23, 2009, the court, Abery-Wetstone, J., opened the judgment of dissolution, and accepted a stipulation (2009 stipulation) from the decedent and the defendant that modified portions of the separation agreement, particularly custody and their respective financial obligations.[4] The 2009 stipulation required the defendant to make payments on the arrearage owed the decedent pursuant to a court-ordered schedule. The court ordered the decedent and the defendant to appear in court periodically so it could monitor the defendant's compliance with the 2009 stipulation. On February 3, 2010, during a compliance hearing, the defendant, who previously had invoked his right to remain silent with respect to the children's education funds, did so again. The court found that the defendant had the ability to pay the sums ordered under the 2009 stipulation and found him in wilful contempt for failing to pay. The court ordered him to reinstate his life insurance policy and provide the decedent with proof of the policy's beneficiaries. The court warned the defendant that if he failed to comply with its orders, he would go to jail.

         The defendant and counsel for the parties appeared in court on March 3, 2010, but the decedent did not. She later was discovered at her home, murdered. On March 12, 2010, Richard Beach, the temporary administrator of the decedent's estate, filed a motion to be substituted as the party plaintiff (substitute plaintiff).[5]The defendant voiced no objection to the motion to substitute, and Judge Abery-Wetstone granted it on March 17, 2010. At the time, however, the court questioned whether the children should have counsel to protect their rights under the 2009 stipulation. Counsel for the estate did not agree that the children needed their own counsel. At that time, the defendant's bankruptcy counsel informed the court that the defendant had, that day, filed a petition in bankruptcy.

         On March 24, 2010, the defendant and the substitute plaintiff appeared before Judge Markle to enter into an agreement (2010 agreement).[6] The court approved the 2010 agreement.[7]

         Between April 23, 2010, and February 1, 2012, the defendant and the substitute plaintiff appeared in court many times for compliance hearings.[8] On November 7, 2011, the substitute plaintiff filed a motion for contempt against the defendant, which was heard by the court, Conway, J., on February 1, 2012. During the hearing, the substitute plaintiff represented that the defendant had not repaid any of the moneys he had taken from the children's education funds. The court found the defendant in contempt and ordered him committed to the custody of the Commissioner of Correction and that he pay $50, 000 to purge the contempt. On April 18, 2012, the substitute plaintiff agreed to have the record reflect that $20, 000 had been tendered toward the $50, 000 purge amount, and requested that the court stay the order of incarceration. The court, Gould, J., ordered the defendant released from incarceration and that he not leave either Connecticut or New York without a court order.[9] On June 5, 2012, Judge Gould also ordered the defendant to continue to pay the estate $500 per week toward the remaining $30, 000 purge amount. The defendant did not comply.

         On March 12, 2015, the substitute plaintiff filed an application for order to show cause why an order should not enter that the defendant (1) reimburse the estate for the fees and costs it incurred to defend the bankruptcy action; (2) commence making payments on the debt owed to the children; and (3) provide proof that he is maintaining life insurance to secure the judgment debt. On May 13, 2015, in response to the substitute plaintiff's application for order to show cause, the defendant filed a motion to dismiss, claiming that the substitute plaintiff lacked standing and, therefore, the court lacked subject matter jurisdiction over that portion of the action.

         In his memorandum of law in support of his motion to dismiss, the defendant argued with respect to the claims made in the application for order to show cause that the substitute plaintiff had failed to demonstrate why his ‘‘obligations'' inure to its benefit and how the substitute plaintiff is aggrieved by his actions or inactions in the context of the present case. He argued that the substitute plaintiff is neither classically nor statutorily aggrieved by the debt he owes the children and his failure to procure life insurance. The defendant also argued that the substitute plaintiff lacks standing to pursue a claim against him for the claimed attorney's fees and costs to defend the bankruptcy proceeding. Moreover, the defendant argued that the substitute plaintiff could not rely on the 2010 agreement and related court order, as the order was improper and void as a matter of law. More specifically, the defendant argued that upon the decedent's death, the court lacked subject matter jurisdiction to enter an order approving the 2010 agreement.

         The substitute plaintiff objected to the motion to dismiss on the grounds that ‘‘(1) [the] [s]ubstituted plaintiff is [a] proper party; (2) [r]es judicata/collateral estoppel; (3) [the] [s]ubstituted party has interests; [and] (4) [p]ublic policy.'' On June 17, 2015, the court, Emons, J., denied the defendant's motion to dismiss after finding that the ‘‘children's claim to the money is solely through the estate.''[10] The court scheduled a hearing on the merits of the application to show cause.

         On July 14, 2015, the defendant filed an objection to the substitute plaintiff's application for order to show cause in which he claimed that he was sixty-six years old, has a debilitating back injury, was unemployed, and did not have the financial ability to pay the funds requested by the substitute plaintiff. He also claimed that the substitute plaintiff's request is not enforceable on the ground of laches, his obligation to pay funds to the estate ended when the children reached the age of majority, and the substitute plaintiff had no authority to prosecute a motion on behalf of the children. The defendant also objected to the use of any funds intended to benefit the children to pay the counsel fees of the estate. Judge Emons again found that the estate, through the substitute plaintiff, had standing to pursue the judgment debt and, on July 14, 2015, ordered the defendant to pay to counsel for the estate $500 per week to be applied toward the $324, 000 plus 4 percent annual interest that the defendant owed the children. The court ordered counsel for the estate to place the moneys the defendant paid in a trust account until further order of the court. The defendant appealed from the judgment on August 3, 2015.[11]

         On September 9, 2015, counsel for the estate filed a motion to intervene on Ali's behalf for the limited purpose of asserting her rights and interests ‘‘in the enforcement of court orders related to the [Uniform Gifts to Minors Act] funds that are the subject of this court's jurisdiction.''[12] The defendant objected to Ali's motion to intervene as a matter of right on the ground that she lacked standing to do so and argued that she cannot satisfy the intervention test set forth in Kerrigan v. Commissioner of Public Health, 279 Conn. 447, 456-57, 904 A.2d 137 (2006). He further argued that, although he does not agree that the substitute plaintiff has standing to recoup the funds he took from the children's education accounts, given the court's ruling on the application for order to show cause, he claimed that Ali's interest in the funds was being represented adequately by the estate and, therefore, Ali did not need to be made a party. He also argued that by permitting Ali to intervene, multiple parties would be pursuing him for the moneys he took from the children's education fund. Judge Emons granted Ali's motion to intervene. The defendant amended his appeal to challenge the court's granting of Ali's motion to intervene.

         On appeal, the defendant claims that (1) the substitute plaintiff lacks standing to prosecute the present action for repayment of moneys he owes the children and (2) Ali failed to demonstrate that she has a direct and substantial interest in the case and, therefore, she also lacks standing. Standing is at the core of each of the defendant's claims.[13] We agree with the defendant that the substitute plaintiff lacks standing to prosecute repayment of the children's education funds and, therefore, the court improperly denied the motion to dismiss and granted the application for order to show cause requiring him to make payments to counsel for the estate to reimburse the moneys he owes the children. We conclude, however, that the court properly granted Ali's motion to intervene, as she has a direct interest in the repayment of the education funds, but that she must assert her rights against the defendant in the civil, not family, court.

         We begin by setting forth the legal principles regarding standing. ‘‘Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. . . . [When] a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause. . . . We have long held that because [a] determination regarding a trial court's subject matter jurisdiction is a question of law, our review is plenary. . . . In addition, because standing implicates the court's subject matter jurisdiction, the issue of standing is not subject to waiver and may be raised at any time. . . .

         ‘‘Because lack of standing implicates the trial court's subject matter jurisdiction, it is properly raised by way of a motion to dismiss. . . . Our standard of review of a trial court's findings of fact and conclusions of law in connection with a motion to dismiss is well-settled. A finding of fact will not be disturbed unless it is clearly erroneous. . . . [If] the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts . . . . Thus, our review of the trial court's ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo.'' (Citations omitted; footnote omitted; internal quotation marks omitted.) Property Asset Management, Inc. v. Lazarte, 163 Conn.App. 737, 745-46, 138 A.3d 290 (2016).

         ‘‘A motion to dismiss [for lack of standing] . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . .

         ‘‘Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.'' (Citations omitted; internal quotation marks omitted.) Emerick v. Glastonbury, 145 Conn.App. 122, 127-28, 74 A.3d 512 (2013), cert. denied, 311 Conn. 901, 83 A.3d 348 (2014).

         ‘‘The requirement of directness between the injuries claimed by the plaintiff and the conduct of the defendant also is expressed, in our standing jurisprudence, by the focus on whether the plaintiff is the proper party to assert the claim at issue.'' (Emphasis added.) Ganim v. Smith & Wesson Corp., 258 Conn. 313, 347, 780 A.2d 98 (2001). ‘‘The plaintiff bears the burden of proving subject matter jurisdiction, ...


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