Argued
May 29, 2018
Procedural
History
Action
for the dissolution of a marriage, and for other relief,
brought to the Superior Court in the judicial district of
Hartford, where the court, Gruendel, J., rendered
judgment dissolving the marriage and granting certain other
relief in accordance with the parties' separation
agreement; thereafter, the court, Ficeto, J.,
granted the plaintiff's motion to dismiss the
defendant's motion for modification of child support,
denied the defendant's motion for modification of child
support, declined to ruled on the defendant's motion for
an accounting, granted the plaintiff's motion to quash a
certain subpoena duces tecum and awarded the plaintiff
attorney's fees; subsequently, the court, Ficeto,
J., denied the defendant's motion to reargue, and
the defendant appealed to this court. Appeal dismissed in
part; judgment reversed in part; judgment
directed.
John
C. Lewis III, with whom, on the brief, was Joseph R.
Serrantino, for the appellant (defendant).
C.
Michael Budlong, with whom was Brandon B. Fontaine, for the
appellee (plaintiff).
DiPentima, C. J., and Moll and Harper, Js.
OPINION
MOLL,
J.
The
defendant, Kristin Fredo, appeals from the judgment of the
trial court on several postdissolution motions rendered in
favor of the plaintiff, Thomas Fredo. On appeal, the
defendant claims that the court improperly (1) granted the
plaintiff's motion to dismiss the defendant's motion
for modification of child support for lack of subject matter
jurisdiction, while also denying the motion for modification,
(2) disposed of the defendant's motion for an accounting,
(3) granted the plaintiff's motion to quash a subpoena
duces tecum, and (4) awarded attorney's fees to the
plaintiff. We reverse the judgment of the court granting the
plaintiff's motion to dismiss the defendant's motion
for modification and awarding attorney's fees to the
plaintiff, and we dismiss, as moot, the remainder of the
appeal.
The
record reveals the following undisputed facts and procedural
history. The parties married on July 17, 1993. They have
three children of the marriage: a son born in January, 1994;
a daughter born in October, 1995; and a daughter born in
February, 1998. In July, 2004, the plaintiff filed the
underlying complaint for dissolution of marriage. On November
24, 2004, the court rendered judgment dissolving the
parties' marriage. The judgment incorporated by reference
the terms of a separation agreement that the parties had
entered into on the same date. The agreement provided, inter
alia, that the parties had joint legal custody and shared
physical custody of the children, and that the plaintiff
would pay the defendant a total sum of $250 per week in child
support.
The
separation agreement also provided that the plaintiff was
entitled to several family businesses free from any claims of
the defendant. In consideration of the defendant
relinquishing any claims that she had to the family
businesses, the agreement set forth terms concerning the
transfer of certain real property located in North Granby
from the plaintiff to the defendant. More specifically, TFHB,
LLC, one of the family businesses of which the plaintiff was
a member, owned real property in North Granby that it planned
to subdivide. The agreement provided that, upon obtaining
approval for the subdivision of the North Granby property, as
well as zoning approval, the plaintiff was required to
transfer one lot from the subdivision to the defendant and
another lot from the subdivision to a trust for the benefit
of the parties' children.
The
court subsequently approved certain modifications to the
child support orders. In 2005, the court approved an
agreement providing, inter alia, that the primary residence
of the minor children would be with the plaintiff and that
the plaintiff would no longer pay any moneys to the
defendant, subject to future orders of the court. Pursuant to
a subsequent agreement approved by the court in 2008, the
defendant was required to pay the plaintiff $50 per week in
child support, as well as a portion of expenses related to
the children's extracurricular activities and health
care. In 2010, the court approved another agreement whereby
the defendant's obligation to pay the plaintiff child
support and expenses related to the children's
extracurricular activities and health care, past or present,
would be deferred until certain conditions were met in
relation to the transfer of the North Granby lot to the
defendant.
On May
18, 2016, the defendant filed a motion for an accounting,
requesting that the plaintiff provide her with an accounting
of all conveyances with respect to the North Granby property
from October 7, 2010 to the present date. That same day, the
defendant also filed a motion for modification of child
support. The defendant asserted therein that the parties'
youngest child, who at that time remained subject to child
support orders as a full-time high school student despite
having reached the age of majority, had vacated the
plaintiff's home and had been residing with the
child's maternal aunt and uncle, Kimberly Brignole and
Timothy Brignole, continuously since September, 2015. She
further asserted that Kimberly and Timothy Brignole had been
supporting the child. The original prayer for relief in the
motion for modification read as follows:
‘‘Wherefore, for all of the foregoing reasons,
the defendant mother hereby moves for modification of the
orders of this court regarding child support for [the]
youngest child and the payment of unreimbursed medical/dental
expenses and the like for said minor child and the payment of
extracurricular activity expenses for said child. The
defendant respectfully requests that this court recalculate
child support and order the parties to pay their respective
share to the maternal aunt and that this court
establish an allocation for each parent requiring that they
reimburse the maternal aunt for the child's
unreimbursed medical/dental expenses, prescription
medications and the like and reimburse the maternal
aunt for the child's extracurricular activity
expenses.'' (Emphasis added.)
On June
7, 2016, the plaintiff filed a motion to dismiss the
defendant's motion for modification, [1] asserting that
the defendant lacked standing to request, and the court
lacked jurisdiction to grant, an order directing payment of
child support to Kimberly Brignole because she was not a
party to the action and did not have legal custody of the
parties' youngest child. That same day, the plaintiff
separately filed a motion to quash a subpoena duces tecum
that had been served on him by the defendant, a motion for
attorney's fees, and an objection to the defendant's
motion for an accounting. On June 13, 2016, Kimberly Brignole
filed a motion seeking to intervene in the action but
withdrew that motion on July 22, 2016, and did not attempt to
intervene in the action thereafter.
On
August 10, 2016, the court held a hearing on the parties'
respective pending motions. Other than the submission by the
plaintiff's counsel of an affidavit regarding
attorney's fees, the hearing was limited to argument on
the pending motions. During the hearing, the court stated
that the original prayer for relief in the defendant's
motion for modification was ‘‘flawed, ''
as the court lacked jurisdiction to order the payment of
child support directly to Kimberly Brignole as a nonparty. In
response, the defendant's counsel orally requested
permission to modify the original prayer for relief. Although
the court did not specifically respond to that request, the
court suggested that the defendant's counsel could file a
revised motion. No revised motion was filed.
Instead,
on August 18, 2016, the defendant filed a document titled
‘‘Substituted Prayer for Relief re:
Defendant's Motion for Modification, Post Judgment No.
208.00.'' It was filed without the court's
permission and nothing in the record before this court
suggests that the defendant made the trial court aware of its
filing. The substituted prayer for relief read as follows:
‘‘Wherefore, for all of the foregoing reasons,
the defendant mother hereby moves to modify the orders of
this court regarding child support for their youngest child.
Due to the fact that the youngest child is no longer living
with the plaintiff father, the defendant respectfully
requests that this court terminate her obligations for the
payment of child support directly to the plaintiff. The
defendant further moves for an order, retroactive to the date
of service of [the motion for modification], that the prior
child support order of $50 per week shall no longer accrue
against her pursuant to the deferred order dated October 7,
2010. The defendant further moves pursuant to [General
Statutes] § 46b-84 (b) for the recalculation of child
support, a finding that the parties' youngest child is in
need of maintenance and an order that the parties shall
maintain said child according to their respective abilities
and pay their respective share of child support directly to
their [youngest child] until such time as she ages out for
child support purposes under state statute.''
By a
memorandum of decision dated August 31, 2016, the court
rendered judgment granting the plaintiff's motion to
dismiss the defendant's motion for modification, denying
the motion for modification, granting the plaintiff's
motion to quash the subpoena duces tecum, and awarding the
plaintiff $1500 in attorney's fees payable within thirty
days. The court did not adjudicate the defendant's motion
for an accounting or the plaintiff's objection thereto,
instead finding that the parties had ‘‘agreed
during argument that the motion for accounting was premature,
'' as certain conditions precedent concerning the
transfer of the North Granby lot to the defendant had not yet
occurred. A written notation on the motion for accounting
contained in the trial court file reads as follows:
‘‘Off/Noted: See 8/31/2016 memo of
decision.'' The defendant subsequently filed a motion
for reconsideration and to reargue, which the court denied.
This appeal followed.[2] Additional facts will be set forth as
necessary.
I
We
first consider the defendant's claim that the court
improperly granted the plaintiff's motion to dismiss the
defendant's motion for modification for lack of subject
matter jurisdiction, while also denying that motion.
Specifically, the defendant claims that several state
statutes vested the court with subject matter jurisdiction to
entertain her motion for modification. We conclude that the
court had subject matter jurisdiction to adjudicate the
defendant's motion for modification, and, thus, the court
erred by granting the plaintiff's motion to dismiss the
motion for modification. To the extent that the defendant
claims that the court improperly denied her motion ...