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Advance Release Opinions – June 1

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Reviews of Connecticut Appellate Court advance release opinions about breach of contract, child support, custody and visitation, divorce, medical malpractice, and mortgage foreclosure.

Breach of Contract

Bracken v. Windsor Locks – Breach of a settlement agreement. In 1994, Town settled an employment dispute with Bracken by reinstating him as a cop as of June 1993, and giving him a seniority date of September 1987. Bracken understood that to mean that he was entitled to pension credit for the period between his September 1987 seniority date and his June 1993 reinstatement date. Town had the right to buy pension credit for Bracken for that period from the Connecticut Municipal Employee Retirement System any time up until Bracken started receiving benefits. Under the pension plan, Bracken would not be eligible to receive benefits until October 2017. In late 2002 or early 2003, Bracken learned that the Town had not purchased pension credit. Over the ensuing years, Bracken tried to get Town to buy the credit, but Town seemed to prefer to wait. As of 2014, Town still had not bought the credit. Bracken started the action, claiming that the Town had breached the express terms of the settlement agreement and the implied covenant of good faith and fair dealing. Trial court concluded that the 6-year statute of limitations, and laches, barred the action because the breach occurred with reinstatement in 1993. Appellate Court reversed, noting that since Town could buy pension credit up until October 2017, Bracken’s 2014 action was for anticipatory breach, and Town had not established laches.

Child Support

Bolat v. Bolat – Judgment entered on parties’ agreement which gave sole legal and primary physical custody of three children to husband, and required no child support from wife. Wife later moved to modify custody. Trial court denied that motion, but found that wife’s income had increased substantially since the original judgment. Husband then filed a motion to modify child support based on the trial court’s finding as to wife’s income and his own loss of employment. His motion asked the court to “see attached,” which appeared to be a motion for child support that included a child support worksheet and wife’s financial affidavits. While that motion was pending, wife filed a motion for contempt, asserting that husband had failed to pay his share of agreed expenses for children’s extracurricular activities. In denying husband’s motion to modify, trial court found that defendant had not properly raised anything other than his own loss of income and declined to consider evidence of the change in wife’s income. Trial court granted wife’s motion. Appellate Court reversed as to both, finding that (1) husband had properly raised wife’s increase in income by asking the court to see the motion for child support attached to his motion to modify; and (2) husband did not wilfully disobey order about extracurricular expenses because they weren’t “agreed expenses” – he had told wife that he could not agree because he could not afford them.

Custody and Visitation

Kyle S. v. Jayne K. – Appellate Court affirmed trial court’s orders granting Jayne K custody of T (the child) and a relief from abuse restraining order against Kyle S, finding that the evidence was sufficient to establish that Kyle S presented an immediate and present risk of physical danger or psychological harm to T, and that a change in custody was warranted. But, Appellate Court reversed the trial court’s order, that the child psychologist was to determine the scope of Kyle S’s visitation with T, as an improper delegation of judicial authority.

Divorce

Hamburg v. Hamburg – Divorce decree required husband to pay into education accounts for the two children. He did, but later raided the accounts for his own purposes. While he and wife were fighting about that and other things in court, wife was murdered. Trial court granted her administrator’s motion to substitute as plaintiff. Trial court then ordered husband to pay some $324,000 to wife’s estate to replace the money he took from the education accounts. Trial court also later granted daughter’s motion to intervene. Husband then moved to dismiss, arguing that neither administrator nor daughter had standing to pursue claims for the education money. Trial court denied the motion. Appellate Court reversed as to the administrator’s standing, but affirmed as to the daughter’s. The administrator lacked standing because the claim for education money belonged to the children, not the estate. For the same reason, daughter had standing to intervene.

Zilkha v. Zilkha – This is actually a tale of two appeals. In the first one, trial court found that husband fraudulently failed to disclose an employment dispute and ordered him to escrow the settlement money he received. Trial court later ordered some of that money be disbursed to pay the fees and retainers of the guardian ad litem, children’s attorney, and experts. Husband appealed claiming that trial court lacked authority to issue that order since it wasn’t in connection with a motion to open. Appellate Court agreed and vacated the order. But Appellate Court did not order any of the recipients to return any money. In the second appeal, trial court denied husband’s request that the recipients return the money. Husband appealed, arguing that by refusing to order return of the money, trial court had violated the Appellate Court’s ruling in the first appeal. Appellate Court affirmed because it had not ordered anyone to return anything – it just vacated the order directing payments that had already been made. Appellate Court also found that husband had failed to show that any equitable basis for ordering the money returned.

Medical Malpractice

Labissoniere v. Gaylord Hospital, Inc. – Defendant doctors were board certified internists. Opinion letter was by a board certified surgeon. Trial court granted defendants’ motion to dismiss because a surgeon and internists are not similar health care providers, and the complaint did not allege that internists were acting outside the scope of their specialty. Appellate Court affirmed.

Mortgage Foreclosure

Deutsche Bank National Trust Company v. Pollard – Yawn. Per curiam decision affirming the trial court’s conclusion that Pollard’s eight-count counterclaim was legally insufficient because it did not go to the making, validity, or enforcement of the note or mortgage.

The Bank of New York Mellon v. Horsey – Appellate Court affirmed, finding that (1) trial court did not abuse its discretion in opening dismissal for failure to prosecute because the record suggested a reasonable cause for plaintiff’s delay (waiting for prior counsel to return original documents necessary for judgment); (2) defendant failed to preserve for appellate review his judicial bias claim because he never raised it in the trial court; (3) defendant failed to preserve for appellate review his claim that plaintiff failed to timely file certain documents necessary for judgment because never raised in the trial court; (4) summary judgment as to liability was proper because plaintiff’s proof established a prima facie foreclosure claim and defendant did not offer any evidence that created a fact issue; (5) defendant failed to preserve, and inadequately briefed, his claim that plaintiff should have been nonsuited under Practice Book § 17-19 for failing to comply with the trial court’s deadline for filing summary judgment motion; (6) defendant inadequately briefed his claim that plaintiff rendered note and mortgage unenforceable by separating them from each other; (7) defendant could not prevail on his claim that plaintiff lacked standing because defendant failed to rebut the presumption of ownership arising from plaintiff’s holder status; and (8) there was no evidence supporting defendant’s claim of fraud on the court.

Advance Release Opinions – May 11 – Appellate Court

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Reviews of Connecticut Appellate Court advance release opinions about child support, civil procedure, divorce, insurance, medical malpractice, and underinsured motorist benefits.

Child Support

Asia A. M. v. Geoffrey M. – This is one that I normally would not review, but I found it interesting. Geoffrey executed a written acknowledgment of paternity under CGS § 46b-172(a)(1). More than two years later, state filed a petition for support against Geoffrey in Asia’s name. Geoffrey then moved to open the paternity acknowledgment under § 46b-172(a)(2) for fraud, mistake of act, and duress, claiming essentially that he signed it only because Asia had lied to him that he was the father; a DNA test proved that he was not the biological father; and it was in the child’s best interests to establish the biological father. Family support magistrate concluded that Geoffrey failed to establish any of the statutory bases for opening the acknowledgment – fraud, mistake, or duress – because the evidence showed that he knew that he was not the biological father when he signed it. But, magistrate nonetheless opened the judgment, concluding that magistrates have the inherent authority to open judgments in the child’s best interests. Trial court affirmed on the state’s appeal. Appellate Court reversed because (1) the statutory grounds are the only grounds for opening a judgment deriving from a § 46b-172(a)(1) paternity acknowledgment; and, redundantly in my view, (2) magistrate did not have authority to open the acknowledgment in the best interests of the child. Judge Keller concurred to suggest amending the paternity acknowledgment statute to require DNA testing before an acknowledgment could be accepted.

Battistotti v. Suzanne A. – Trial court awarded Suzanne sole custody; gave Battistotti, a New York resident, parenting time that had to be spent in Greenwich; and ordered Battistotti to pay child support in the amount suggested by the guidelines. On appeal, Battistotti claimed that the trial court should have deviated from the support guidelines to account for his additional expenses in maintaining a Greenwich apartment to comply with the visitation order. Appellate Court agreed, and remanded for a new hearing on child support. Battistotti also claimed that the trial court abused its discretion in restricting his parenting time to Greenwich. Appellate Court disagreed, and affirmed on that point.

Civil Procedure

Plainville v. Almost Home Animal Rescue and Shelter, Inc. – Town seized animals from defendant under a criminal search and seizure warrant and tried recover its animal care expenses from defendant under negligence per se and unjust enrichment theories. Trial court granted defendant’s motion to strike both counts. Appellate Court affirmed, finding that (1) Town was not an intended beneficiary of CGS § 53-247 so that statute was not a basis for Town’s negligence per se claim; (2) CGS § 22-329a provided Town with an adequate remedy for recouping its animal care costs so it could not recover in unjust enrichment; and (3) trial court did not apply an improper standard in deciding the motion to strike.

Divorce

Thomasi v. Thomasi – Wife and husband had separate appeals. In wife’s appeal, parties could not agree on the QDRO giving wife half of the “marital portion” of husband’s pension because they could not agree on the method of calculation. Even though both methods were acceptable, and the dissolution agreement did not specify which one to use, trial court found the agreement unambiguous, and accepted the coverture method favored by husband, instead of the subtraction method favored by wife. Appellate Court found that although “marital portion” was not a patent ambiguity since everyone understood generally what it meant, it was a latent ambiguity since there are multiple ways to calculate it. In other words, just because everyone agreed that the cat was to be skinned, didn’t mean that they agreed on how to skin it. The latent ambiguity required reversal

In husband’s appeal, trial court found that husband’s job loss was his own fault and denied his motion to reduce alimony. Appellate Court reversed on that point, finding that the record did not support the trial court’s conclusion. But Appellate Court affirmed trial court’s determination that husband’s obligation to pay pension benefits to wife started on the date of dissolution, and was not delayed by the delay in determining the marital-portion calculation method.

Insurance

General Ins. Co. of America v. Okeke – Some cases break your heart not because of the court’s ruling, but because of the facts that led the parties to litigation. This is one of those cases. Fifteen year old Michael allegedly assaulted, stabbed, and beat an elderly woman, in her home. The woman sued Michael and his mother, Agatha, in separate actions. Agatha’s homeowner’s insurer initially appeared for Michael, but then withdrew his appearance. It appeared for Agatha under a reservation of rights. Michael was defaulted for failure to appear. After a hearing in damages, the court awarded the woman more than $407,000 in Michael’s case. While the woman’s actions were pending, Agatha’s homeowner’s insurer brought this declaratory judgment action seeking a decree that it has no duty to defend or indemnify Michael or Agatha. Trial court granted the insurer’s motion for summary judgment, and decreed that it had no duty to defend or indemnify either defendant. Appellate Court affirmed in a per curiam opinion adopting the trial court’s memorandum of decision.

Medical Malpractice

Ugalde v. Saint Mary’s Hospital, Inc. – Appellate Court found that trial court (1) properly dismissed claim for lack of personal jurisdiction because opinion letter was deficient for want of doctor’s qualifications and plaintiff could not amend it because statute of limitations had expired; and (2) properly denied plaintiff’s motion to re-argue the denial of her motion to set aside the nonsuit that entered for her failure to comply with discovery.

Underinsured Motorist Benefits

Puente v. Progressive Northwestern Ins. Co. – Puente had an LLC, and the LLC had an auto insurance policy. Puente was hit after exiting the LLC’s truck. Trial court granted insurer summary judgment, finding that there was no dispute that Puente was not a named insured, and that he was not “occupying” the truck when he was hit because he wasn’t in physical contact with it. Appellate Court affirmed.

Family Magistrate May Order Attorney’s Fees for Contempt

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In this Connecticut appeal, O’Toole v. Hernandez, the Appellate Court concluded that a family support magistrate had the authority to order defendant to pay plaintiff’s attorney’s fees in connection with defendant’s contempt of a support order for the unmarried parties’ minor child.

The state filed a paternity petition “with the Family Support Magistrate Division of the Superior Court, … naming the defendant as the father of the parties’ minor son and seeking financial support for the minor child.” The magistrate found that defendant was the child’s father and ordered him to pay child support.

“The plaintiff, with the assistance of her counsel, thereafter filed several postjudgment motions for contempt against the defendant, claiming repeated noncompliance with the court’s child support orders.” The magistrate found a child support arrearage, held the defendant in contempt, ordered that defendant be incarcerated until he paid a purge amount and ordered defendant to pay plaintiff’s attorney’s fees.

Defendant appealed to the Superior Court. “In his statement of the issues, the defendant challenged the authority of a family support magistrate to order a contemnor to pay his opponent’s legal fees.” The trial court, citing CGS § 46b-171, “concluded that the family support magistrate was within his statutory authority, in a paternity case, which this case is, to order attorney’s fees in a motion for contempt to enforce the orders of support. Therefore, the appeal by the defendant is denied.”

Defendant appealed to the Appellate Court, who affirmed.

Defendant’s Argument on Appeal

“[D]efendant claim[ed] that § 46b-171 does not provide the requisite authority for the awarding of attorney’s fees by a family support magistrate. The defendant further claims that there are no other statutes that do provide such authority. For that reason, the defendant argues that his due process rights were violated when [the magistrate] ordered him to pay the plaintiff … attorney’s fees.”

Plaintiff’s Alternate Ground for Affirmance

“[P]laintiff claim[ed], as an alternative ground for affirmance, that § 46b-231 provided [the magistrate] with the authority to order the payment of attorney’s fees when enforcing child support orders in a contempt proceeding.”

Appellate Court Concludes Family Support Magistrate May Order Attorney’s Fees for Contempt

The Appellate Court affirmed for two primary reasons. “First, … § 46b-231 (m) (7) expressly authorizes a family support magistrate to enforce child support orders entered in that court by finding the obligor in contempt, and further provides that the magistrate ‘may make such orders as are provided by law to enforce a support obligation . . . .'”  The court noted that “[o]nce a contempt has been found, [General Statutes § 52-256b(a)] establishes a trial court’s power to sanction a noncomplying party through the award of attorney’s fees.” In other words, contempt and an award of attorney’s fees are both incidents to enforcing child support orders, which the magistrate is authorized to do.

“Second, it would violate the well established public policy that requires parents to provide for the support of their minor children and prohibits discriminating against children born out of wedlock to hold that support orders for children born out of wedlock cannot be enforced with the same contempt sanctions that are available tools to enforce support orders for children born to married parents. There is no justification for making such a distinction.”

Issuing State’s Law Governs Child Support Duration

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issuing-state-law-governs-child-support-durationThe issuing state’s law governs child support duration where a party seeks to modify the child support order in another state. The Connecticut Supreme Court reached this conclusion in Studer v. Studer to be officially released on February 23, 2016.

In this Connecticut appeal, plaintiff and defendant were divorced in Florida in 2002. The Florida judgment “provided that the defendant would pay child support until the child ‘reaches the age of [eighteen], become[s] emancipated, marries, dies, or otherwise becomes self-supporting’ or ‘until [the] age [of nineteen] or graduation from high school whichever occurs first, if a child reaches the age of [eighteen] and is still in high school and reasonably expected to graduate prior to the age of [nineteen].’ Both parties were aware that the child was autistic at the time of the dissolution and the Florida judgment specifically referenced the child’s condition.”

The parties and the child moved to Connecticut. In 2003, defendant domesticated the Florida judgment in Connecticut and moved to modify child support and alimony. The Connecticut court granted the motion.

In 2010, plaintiff moved for postmajority support, claiming that the child would not graduate from high school until after her 21st birthday because of her autism. “Applying Florida law, the [Connecticut] court granted the plaintiff’s motion for postmajority support and ordered the defendant to continue paying child support until the child’s high school graduation ….”

In 2013, before the child graduated from high school, plaintiff moved to extend child support indefinitely beyond the child’s high school graduation. “The trial court concluded that under General Statutes § 46b-71, Florida law controlled the duration of the defendant’s child support obligation and ordered the defendant to pay child support indefinitely.”

Defendant appealed. The Connecticut Supreme Court affirmed.

Defendant’s Main Argument on Appeal

Florida allows postmajority support in cases like this; Connecticut law does not. Defendant’s main argument was that the 2010 postmajority support order, issued by the Connecticut court, became the operative support order rendering all further support considerations subject to Connecticut law.

Supreme Court Concludes Issuing State’s Law Governs Child Support Duration

The Supreme Court thoroughly discussed all of the arguments and counter-arguments but to me the decision came down to one simple thing: The Uniform Interstate Family Support Act provides that the issuing state’s law governs child support duration. More specifically, one section of the act, CGS §46b-213q(d), “provides in relevant part: ‘In a proceeding to modify a child support order, the law of the state that is determined to have issued the initial controlling order governs the duration of the obligation of support. . . ‘” (Supreme Court’s emphasis).

The term ‘‘initial controlling order’’ is not defined in § 46b-213q, nor is it defined in the provision setting forth the definitions used within the act, General Statutes (Rev. to 2013) § 46b-212a. ‘‘In the absence of a definition of terms in the statute itself, [w]e may presume . . . that the legis- lature intended [a word] to have its ordinary meaning in the English language, as gleaned from the context of its use. . . . Under such circumstances, it is appropriate to look to the common understanding of the term as expressed in a dictionary.’’

The court considered a number of dictionary definitions of “initial.” The court concluded: “Using the definition of ‘initial’ indicates that the legislature and the drafters of the uniform act intended for the first state that issues a child support order to control the duration of the child support obligation.”

Accordingly, because it is undisputed that the Florida judgment was rendered before any of the Connecticut orders, the initial controlling order in the present case is the Florida judgment and, therefore, Florida law governs the duration of the defendant’s child support obligation. Furthermore, the parties in the present case do not dispute that Florida law provides for support for adult disabled children.

In reaching this conclusion, the court quoted a Washington Supreme Court decision, as follows: “Child support orders are frequently modified as children grow older or when circumstances change. . . . If the [uniform act] ceased to apply after the first modification, the reference to the state that issued the initial controlling order would be superfluous.’’

The court also noted that if “initial controlling order” did not refer to the first child support order issued in the case, there would be incentive to forum shop, which is something the Act was intended to prevent.

Other Things to Note

In footnote 8, the court noted that at oral argument plaintiff agreed that the Uniform Interstate Family Support Act applied and CGS § 46b-71 did not. For this reason, the court didn’t consider § 46b-71.

About the Photo

I’ve used it before. Seems appropriate for child support and custody issues.