Opinion
No. TTD FA 05 4003083 S
June 10, 2008
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO MODIFY (May 8, 2008) AND AMENDMENT TO MOTION TO MODIFY (MAY 27, 2008)
A review of the record reveals that this case was tried over a period of seven months and encompassed ten trial days. The court issued a 25-page memorandum of decision dated December 31, 2007 which incorporated many of the proposed orders from each party. Thereafter, the plaintiff filed a 42-page motion for reconsideration and/or re-argument with respect to the orders contained in that memorandum of decision which was denied. Now comes the plaintiff requesting that the court open and modify the judgment pursuant to Practice Book § 17-4 as it pertains to Child Support, Health Insurance and Life Insurance by way of a pleading entitled Plaintiff's Amendment To Motion To Modify Child Support, Health Insurance and Life Insurance, dated May 27, 2008. This pleading was filed in the court room and handed to opposing counsel on May 27, 2008 when the parties had appeared to argue the plaintiff's earlier motion (number 241) entitled Motion To Modify Child Support, Health Insurance And Life Insurance dated May 8, 2008. The defendant requested an opportunity to respond and did respond on May 30, 2008 with a pleading entitled Defendant's Memorandum In Opposition To Plaintiff's Amended Motion To Modify.
I. CHILD SUPPORT
The plaintiff seeks to have the child support of $439 per week be increased to $1,700 per week. It should be noted that at trial, the plaintiff submitted a child support guidelines worksheet which requested child support in the amount of $553 per week. The court found, based on the wife's earning capacity of $100,000 per year and the husband's earnings of $225,000 per year that child support figure of $439 per week was appropriate and complied with the child support guidelines. While the plaintiff argues that the child support order "substantially deviates from the child support guidelines," the court made a specific finding that it in fact did comply. There was no appeal from that finding or order and thus, the plaintiff is barred by the doctrine of res judicata to further argue that particular point.
The plaintiff argues that there have been financial changes since the December 31, 2007 memorandum of decision yet the court is hard-pressed to deem them to be substantial changes. The factual changes enumerated by the plaintiff include the price of gasoline, the cost of heating oil, a mortgage payment increase of $88 per month, the devaluation of the plaintiff's home due to the housing market and the rising cost of the children's education expenses. These factual changes are not substantial and many of them effect the defendant equally.
The plaintiff also seeks to modify the allocation of the cost of the children's education at Renbrook and Loomis private schools, their recreational activities and vehicle expenses and the cost of the health-care assistant. These issues were considered at great length during the 10 days of trial and addressed in the court's memorandum of decision. The plaintiff is essentially attempting to reargue those very points by way of a motion to modify. A motion to modify requires a showing that there has been a substantial change in circumstances as a matter of fact since the memorandum of decision which has not been demonstrated.
II. HEALTH INSURANCE
The plaintiff argues in paragraph 5 "the plaintiff respectfully requests that the parties' son, Craig Lennon, be allowed to continue to see his out of network counselor." This issue was argued at trial and raised again in the plaintiff's motion for reconsideration and/or reargument dated January 18, 2008. In a memorandum of decision dated March 27, 2008 the court ruled "it was the court's intention that out of network providers shall not be used, except in case of emergency, unless agreed upon by the parents in writing or by e-mail. There was no evidence that the husband's present medical plan failed to provide adequate coverage within its network nor was there any evidence that the husband had in the past or would in the future deny to his children necessary medical treatment." In as much as this issue has already been ruled on twice, the motion to modify it is denied.
III. LIFE INSURANCE
The plaintiff argues in paragraph 6 that the court eliminate the requirement that she maintain $500,000 of life insurance (the husband is required to maintain $2 million worth of life insurance).
Since there can be no showing of a substantial change in circumstances regarding this issue, the plaintiff is essentially asking the court to change its mind on this point which the court declines to do.
Modifications of dissolution judgments are governed by C.G.S. section 46b-86. Gaffey v. Gaffey, 91 Conn.App. 801, 805-06 (2005). There must be a "showing of a substantial change in circumstances of either party." A careful reading of the plaintiff's motion to modify dated May 8, 2008 and plaintiff's amended to motion to modify dated May 27, 2008 reveals no such showing. The motions are essentially a list of requests for the court to change its mind regarding issues which it has carefully considered and reconsidered. See, Memorandum of Decision regarding Motion to Reargue dated March 27, 2008.
The motion to modify and the amendment to the motion to modify are denied.
The defendant has requested counsel fees expended on the defense of this motion to modify and the amendment to the motion to modify. The court finds that the motions to modify were filed without a good-faith basis and that the assessment of attorneys fees is warranted. Counsel for the defendant shall file an affidavit detailing the fees expended regarding these two motions only.
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO OPEN (#240)
A review of the record reveals that this case was tried over a period of seven months and encompassed ten trial days. The court issued a 25-page memorandum of decision dated December 31, 2007 which incorporated many of the proposed orders from each party. Thereafter, the plaintiff filed a 42-page motion for reconsideration and/or re-argument with respect to the orders contained in that memorandum of decision which was denied. Now comes the plaintiff requesting that the court open and modify the judgment pursuant to Practice Book § 17-4. The plaintiff has filed an objection and Memorandum of Law in support of said objection. The parties appeared before the court at short calendar on May 12, 2008, with the plaintiff, an attorney, now representing herself and the defendant represented by counsel. The plaintiff had also issued subpoenas for corporate witnesses who had filed motions to quash said subpoenas. The court heard brief oral argument and then indicated to the parties that it would consider the written pleadings and either render a decision on the merits of the motion itself or schedule further proceedings.
A motion to set aside or open a civil judgment is governed by General Statutes § 52-212a and Practice Book § 17-4. "Practice Book § [17-4] vests discretion in the trial court to determine whether there is a good and compelling reason for its modification or vacation." (Internal quotation marks omitted.) Mazziotti v. Allstate Ins. Co. 240 Conn. 799, 809, 695 A.2d 1010 (1997); Heyman Associates No. I v. Insurance Company of Pennsylvania, 231 Conn. 756, 786, 653 A.2d 122 (1995); accord Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 710, 462 A.2d 1037 (1983). "The power of the court to vacate a judgment for fraud is regarded as inherent and independent of statutory provisions authorizing the opening of judgments; hence judgments obtained by fraud may be attacked at any time." (Internal quotation marks omitted.) Billington v. Billington, 220 Conn. 212, 218, 596 A.2d. 1377 (1991).
"While such a motion should not be readily granted nor without strong reasons, it ought to be when there appears cause for which the court acting reasonably would feel bound in duty so to do." (Internal quotation marks omitted.) Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 710-11, 461 A.2d 1037 (1983). Practice Book § 17-4 "does not contain a precise list of what the moving party must show in order to prevail, a party wishing to open judgment under § [17-4] must nevertheless demonstrate that there is a `good and compelling reason' for the court to grant the motion." (Internal quotation marks omitted.) First Union Nat'l v. TDB International, Superior Court, judicial district of Waterbury, Docket No. 140380 (June 2, 1998, West, J.) (22 Conn. L. Rptr. 252); see also Dixon v. Kane, Superior Court, judicial district of Stamford-Norwalk at Norwalk, Docket No. 108043 (March 3, 1993, Lewis, J.) (8 Conn. L. Rptr. 574, 575), citing Hirtle v. Hirtle, 217 Conn. 394, 398, 586 A.2d 578 (1991). Once the court has refused to open a judgment, "the action of the court will not be disturbed on appeal unless it has acted unreasonably and in clear abuse of discretion." Steve Viglione Sheet Metal Co. v. Sakonchick, supra, 190 Conn. 711. The decision whether to grant or deny a timely motion to reopen is discretionary. Acheson v. White, 195 Conn. 211, 214-15, 987 A.2d 197 (1985); accord Mazziotti v. Allstate Insurance, 240 Conn. 799, 809, 695 A.2d 1010 (1997).
The plaintiff's claim number one argues that Connecticut law does not permit the court to order support for a child over the age of majority except through an educational support order or medical insurance. At page eighteen of the memorandum of decision, the court ordered that the parties shall maintain a motor vehicle for their adult daughter Kathleen and pay its expenses. This is not permitted by law. As the court held in Loughlin v. Loughhin, 93 Conn.App. 618, 636 (2006):
As a general matter, "[t]he obligation of a parent to support a child terminates when the child attains the age of majority, which, in this state, is eighteen. General Statutes § 1-1d; Kennedy v. Kennedy, 177 Conn. 47, 52 411 A.2d 25 (1979); Sillman v. Sillman, 168 Conn. 144, 358 A.2d 150 (1975). The statutory grant of jurisdiction to the Superior Court in matters relating to child support incident to the dissolution of a marriage likewise expressly circumscribes the court's jurisdiction to orders involving only minor children." (Internal quotation marks omitted.) Cariseo v. Cariseo, 190 Conn. 141, 145-43, 459 A.2d 523 (1983). Additional statutory provisions may apply, however, to modify this general rule. Pursuant to General Statutes § 46b-66(a), a court in a dissolution proceeding may enter an order providing for post-majority child support when the parties have agreed in writing to the terms of that order. Under a more recently enacted provision, upon motion of a party and after making certain subsidiary findings, a court may issue an educational support order for college age children. See General Statutes § 46b-56c(b), (c), (e); see also Robinson v. Robinson, supra, 86 Conn.App. 725. Such an order may require one or both parties to a dissolution action to provide support to a child, until the child reaches the age of twenty-three, for certain enumerated educational expenses. In the absence of a statute or agreement providing for post-majority assistance, however, a parent ordinarily is under no legal obligation to support an adult child. Id., p. 636.
Thus, to the extent that the memorandum of decision orders the parties to purchase, maintain or pay for a vehicle for their children who have reached the age of majority, that order is rescinded.
The plaintiff's claim number three argues that the defendant failed to disclose assets on his financial affidavit and claims that the defendant's brother, who died in May 2007 may have left assets to the defendant. This case was tried between June and December 2007 and clearly, that information was either known or could easily have been known by the plaintiff. The court in Terry v. Terry, 102 Conn.App. 215, 223 (2007) considered a similar issue and ruled
The party claiming fraud has the burden of proof. Weinstein v. Weinstein, supra, 275 Conn. 684. "Fraud consists in deception practiced in order to induce another to part with property or surrender some legal right, and which accomplishes the end designed . . . The elements of a fraud action are: (1) a false representation was made as a statement of fact; (2) the statement was untrue and known to be so by its maker; (3) the statement was made with the intent of inducing reliance thereon; and (4) the other party relied on the statement to his detriment . . .
"There are three limitations on a court's ability to grant relief from a dissolution judgment secured by fraud: (1) there must have been no laches or unreasonable delay by the injured party after the fraud was discovered; (2) there must be clear proof of the fraud; and (3) there is a substantial likelihood that the result of the new trial will be different." (Internal quotation marks omitted.) Id., 685.
The request is denied.
The plaintiff's claims number four (post-retirement survivor annuity benefits), five (cost of living allowances), number six (gains and losses on pension) and number nine (tax reporting for the childcare assistant) raise serious issues which, in the interests of justice and equity justify further consideration. If in fact, as the plaintiff argues, the memorandum of decision should be clarified so that the plaintiff can receive benefits which will cost the defendant nothing, it should be considered. Those claims raise factual issues which must be addressed at an evidentiary hearing. For that reason, the parties are ordered to secure a trial date from the family case flow office for an evidentiary hearing on those four issues only.
The plaintiff's claim number seven essentially re-argues a property distribution which is simply not permissible under the law.
The plaintiff's claim number eight argues that the "use of beach house not in best interest of children." The court carefully considered the best interest of the children in allocating the ownership and use of the family's beach house and made specific findings of fact that the children, whose primary residence was with the mother, would spend more time with their father and strengthen the father/children relationship if he had ownership of the family beach house which was in fact, the beach house of his parents. In view of the fact that the father works only a few minutes from the beach house and the family employs a full-time childcare assistant, it is reasonable to expect that the children might choose to spend extended periods of time with their father during the summer at the summer home. This issue was litigated, argued and considered in the many versions of proposed orders which the parties offered to the court. That request is denied.
The defendant has requested counsel fees relative to expenses incurred in addressing these issues. A court has the authority and discretion to award attorneys fees to a party who incurs those fees largely due to the other parties' egregious litigation misconduct. Ramin v. Ramin, 281 Conn. 324, 353 (2007). "When a party has engaged in egregious litigation misconduct that has required the other party to expend significant amounts of money for attorneys fees, and where the court determines, in its discretion, that the misconduct has not been addressed adequately by other orders of the court, the court has discretion to award attorneys fees to compensate for the harm caused by that misconduct, irrespective of whether the other party has ample liquid assets and of whether the lack of such an award would undermine the court's other financial orders." Id. at p. 357. The court will reserve judgment on this request until a final hearing has taken place on the pending issues.