Shear v. Shear

         Argued May 16, 2019

         Superior Court, Judicial District of Hartford, Adelman, J.

         Tad J. Bistor, for the appellant (plaintiff).

         Julé A. Crawford, Middletown, for the appellee (defendant).

         DiPentima, C. J., and Elgo and Sullivan, Js.

          OPINION

         DiPENTIMA, C. J.

         [194 Conn.App. 352] The plaintiff, Daniel Shear, appeals from the judgment rendered by the Superior Court affirming in part an order of a

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family support magistrate^[1] regarding his postdissolution motion for modification and remanding the case for further proceedings. On appeal, the plaintiff claims that (1) the Superior Court [194 Conn.App. 353] applied an improper standard of review in the appeal from the family support magistrate’s order and (2) the family support magistrate improperly failed to credit and refund money to the plaintiff for lump sum and monthly social security disability benefits paid to the defendant, Yupaporn Shear,^[2] in excess of the postdissolution financial orders. We conclude that the plaintiff’s appeal from the order of the family support magistrate was not taken from a final judgment. Accordingly, we reverse the judgment and remand the case to the Superior Court with direction to dismiss the plaintiff’s appeal.

          A detailed review of the facts and procedural history is necessary for our resolution of this appeal. On October 6, 2011, the plaintiff commenced the present action, seeking a dissolution of the parties’ marriage and sole custody of their minor child. On November 29, 2012, the court, Carbonneau, J., rendered a judgment dissolving the marriage. The court incorporated the terms of the parties’ written separation agreement into the judgment. That agreement provided that the parties would have joint custody of the minor child, with her primary residence with the defendant. The plaintiff agreed to pay $71 per week in child support and $4 per week toward an existing arrearage. The parties also agreed to share the work-related day care costs, with the plaintiff paying 42 percent and the defendant paying 58 percent. Neither party was to receive alimony.

          On December 27, 2016, the defendant filed a motion for modification and sought to reduce his child support and day care obligations. He alleged that a disability determination by the Social Security Administration constituted a substantial change in circumstances. He also claimed that the orders pertaining to his child support and day care obligations substantially exceeded [194 Conn.App. 354] the "guidelines amount" based on his present income and earning capacity.

         On January 5, 2017, the defendant was served with the plaintiff’s motion for modification.^[3] On January 18, 2017, two days before the scheduled hearing on the plaintiff’s motion, the defendant’s counsel filed a motion for a continuance until February 3, 2017. The plaintiff’s counsel did not consent and filed an objection.

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          On January 20, 2017, the parties executed a stipulation that provided: (1) the defendant’s counsel was unable to appear in court due to a previously scheduled matter; (2) support enforcement services received $307.70 on January 3, 2017, from an income withholding lodged with the Social Security Administration, which resulted in a deduction from the plaintiff’s January, 2017 disability payment; (3) the plaintiff had received notice that the Social Security Administration deducted $4982.20 from his benefits to pay his child support and that this "substantially exceeds" the $3054.52 arrearage owed to the plaintiff and the state; (4) the minor child was entitled to a monthly dependent benefit and a retroactive lump sum dependent benefit from the Social Security Administration and the amount of these benefits would not be known until the defendant completed, and the Social Security Administration processed, an application; and (5) the parties wanted to protect their respective positions and to prevent overpayment of child support and the arrearage until a hearing was held on the plaintiff’s motion for modification. The parties, [194 Conn.App. 355] therefore, agreed (1) to continue the hearing on the motion for modification until February ...