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Shear v. Shear

Court of Appeals of Connecticut

November 19, 2019

DANIEL SHEAR
v.
YUPAPORN SHEAR

          Argued May 16, 2019

         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, Carbonneau, J., rendered judgment dissolving the marriage and granting certain other relief in accordance with the parties' separation agreement; thereafter, the family support magistrate, Michael L. Ferguson, approved a certain stipulation of the parties; subsequently, the family support magistrate, Jed N. Schulman, issued a certain order related to a motion for modification of child support filed by the plaintiff; thereafter, the plaintiff appealed to the court, Hon. Gerard I. Adelman, judge trial referee; judgment affirming in part the order of the family support magistrate and remanding the matter for further proceedings, from which the plaintiff appealed to this court. Reversed; judgment directed.

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

          Jule´ A. Crawford, for the appellee (defendant).

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

          OPINION

          DiPENTIMA, C. J.

         The plaintiff, Daniel Shear, appeals from the judgment rendered by the Superior Court affirming in part an order of a 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 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 postdisso-lution 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 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.

         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, therefore, agreed (1) to continue the hearing on the motion for modification until February 3, 2017, and (2) that support enforcement services would suspend the disbursement of any income withholdings received from the Social Security Administration until that date. The family support magistrate, Michael L. Ferguson, approved the stipulation, which had been filed in court by the plaintiff's counsel.

         On March 9, 2017, [4] the family support magistrate, Jed N. Schulman, held a hearing on the plaintiff's motion for modification. At the outset, the parties stipulated that the plaintiff had been determined by the Social Security Administration to be disabled effective June 1, 2014, and that his disability payment was $878 per month or $203 per week. They also agreed that the minor child's benefit was $171 per month or $40.38 per week. After further discussion, Magistrate Schulman accepted the stipulations.

         Next, Magistrate Schulman addressed the issue of whether the amount paid to the defendant from the social security lump sum disbursement exceeded the amount owed by the plaintiff. He then stated: ‘‘So, I'd have to look at certain things between June 1, 2014, [the date of the plaintiff's disability determination] and January 5, 2017 [the date the defendant was served with the motion for modification]. And I do want to make it clear to counsel that the case law is clear that the retro[active]-if you want to call it retro[active]-that the lump sum payment by [the] Social Security [Administration] for the benefit of the child is a gratuity essentially, and if it's-it's provided for so you don't get credit for that and you don't get reimbursement on that.'' The defendant's counsel agreed with Magistrate Schulman; the plaintiff's counsel, however, did not. Specifically, the plaintiff's counsel argued that if the plaintiff had received disability payments starting on June 1, 2014, he would have been entitled to a credit for the entire amount of the lump sum paid on behalf of the minor child by the Social ...


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