Fredo v. Fredo

185 Conn.App. 252

196 A.3d 1235

Thomas FREDO

v.Kristin FREDO

AC 39719

Appellate Court of Connecticut.

Argued May 29, 2018

Officially released October 2, 2018

John C. Lewis III, with whom, on the brief, was Joseph R. Serrantino, Hartford, for the appellant (defendant).

C. Michael Budlong, Hartford, with whom was Brandon B. Fontaine, for the appellee (plaintiff).

DiPentima, C. J., and Moll and Harper, Js.

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...