Hamburg v. Hamburg

182 Conn.App. 332

193 A.3d 51

Barbara B. HAMBURG

v.Jeffrey R. HAMBURG

AC 38225

Appellate Court of Connecticut.

Argued January 3, 2018

Officially released June 5, 2018

Chris R. Nelson, for the appellant (defendant).

Richard W. Callahan, for the appellees (substitute plaintiff and intervening plaintiff).

DiPentima, C.J., and Lavine and Prescott, Js.

LAVINE, J.

In this protracted postmarital dissolution action, the defendant, Jeffrey R. Hamburg, appeals from the judgments of the trial court (1) ordering him to pay to the estate of the deceased plaintiff, Barbara B. Hamburg (decedent), funds he had misappropriated from his children's education accounts, and (2) granting the motion to intervene filed on behalf of his daughter, Barbara A. Hamburg (Ali). On appeal, the defendant claims that the court improperly (1) denied his motion to dismiss for lack of subject matter jurisdiction and (2) granted the motion to intervene. We agree that the trial court erred when it denied the defendant's motion to dismiss but conclude that it properly granted Ali's motion to intervene. We, therefore, reverse in part and affirm in part the judgments of the trial court.

A lengthy factual and procedural history underlies the defendant's appeal. The decedent and the defendant were married in March, 1989, and had two children: a son, Madison Hamburg, born in 1991, and a daughter, Ali, born in 1993. In 2001, the decedent commenced an action for dissolution of marriage in the Superior Court of Fulton County, Georgia, where the decedent and the defendant reached an agreement (separation agreement) that was incorporated in the Georgia court's September 5, 2002 judgment dissolving their marriage. Among other things, the judgment required the defendant to pay the decedent alimony and child support and to place funds for the children's education in certain accounts.¹

On April 5, 2005, the decedent filed a certified copy of the Georgia dissolution judgment in our Superior Court pursuant to General Statutes § 46b–71,² and the trial court domesticated the Georgia judgment. The decedent and the defendant subsequently filed numerous motions for contempt in which they claimed, primarily, that the other had failed to comply with his or her financial obligations under the separation agreement. On March 6, 2009, the court, Markle, J. , issued a memorandum of decision with respect to the parties' postjudgment motions. The court found that the defendant was in wilful violation of the dissolution judgment that required him to pay the decedent $2000 per month for child support for the period of October, 2007, through February, 2009. The child support arrearage was $32,000 at that time. The court ordered the defendant to pay the decedent $16,000 on or before March 31, 2009, and to pay the decedent an additional $1000 a month in child support until the arrearage was paid. The court, however, denied the defendant's motion to modify his child support obligation, after finding that there had been no substantial change downward in his financial circumstances. In fact, the court found that his income had increased. With respect to the decedent's motion for contempt for the defendant's failure to pay educational and medical expenses for the children, the court ordered the decedent and the defendant to family relations for mediation.³

During a hearing on June 4, 2009, Judge Markle heard evidence that, in 2005, there was $150,000 in the education account of each child. On the date of the hearing, the defendant testified that there was then remaining $10,050 in Madison Hamburg's account and $23,000 in Ali's account. He also testified that he had taken the children's funds for his own use. The court again found the defendant in contempt and ordered him incarcerated until he paid $8000 to purge the contempt.

On November 24, 2009, the decedent and the defendant appeared before the court on a motion for contempt and a motion to modify the dissolution judgment that had been filed by the decedent. The documents presented to the court demonstrated that the defendant had taken funds from the children's education accounts for his personal use. After he was advised by counsel, the defendant invoked his right to remain silent. At the request of the parties, the court continued the matter to permit the decedent and the defendant to negotiate a settlement.

On December 23, 2009, the court, Abery–Wetstone, J. , opened the judgment of dissolution, and accepted a stipulation (2009 stipulation) from the decedent and the defendant that modified portions of the separation agreement, particularly custody and their respective financial obligations.⁴ The 2009 stipulation required the defendant to make payments on the arrearage owed the decedent pursuant to a court-ordered schedule. The court ordered the decedent and the defendant to appear in court periodically so it could monitor the defendant's compliance with the 2009 stipulation. On February 3, 2010, during a compliance hearing, the defendant, who previously had invoked his right to remain silent with respect to the children's education funds, did so again. The court found that the defendant had the ability to pay the sums ordered under the 2009 stipulation and found him in wilful contempt for failing to pay. The court ordered him to reinstate his life insurance policy and provide the decedent with proof of the policy's beneficiaries. The court warned the defendant that if he failed to comply with its orders, he would go to jail.

The defendant and counsel for the parties appeared in court on March 3, 2010, but the decedent did not. She later was discovered at her home, murdered. On March 12, 2010, Richard Beach, the temporary administrator of the decedent's estate, filed a motion to be substituted as the party plaintiff (substitute plaintiff).⁵ The defendant voiced no objection to the motion to substitute, and Judge Abery–Wetstone granted it on March 17, 2010. At the time, however, the court questioned whether the children should have counsel to protect their rights under the 2009 stipulation. Counsel for the estate did not agree that the children needed their own counsel. At that time, the defendant's bankruptcy counsel informed the court that the defendant had, that day, filed a petition in bankruptcy.

On March 24, 2010, the defendant and the substitute plaintiff appeared before Judge Markle to enter into an agreement (2010 agreement).⁶ The court approved the 2010 agreement.⁷

Between April 23, 2010, and February 1, 2012, the defendant and the substitute plaintiff appeared in court many times for compliance hearings.⁸ On November 7, 2011, the substitute plaintiff filed a motion for contempt against the defendant, which was heard by the court, Conway, J. , on February 1, 2012. During the hearing, the substitute plaintiff represented that the defendant had not repaid any of the moneys he had taken from the children's education funds. The court found the defendant in contempt and ordered him committed to the custody of the Commissioner of Correction and that he pay $50,000 to purge the contempt. On April 18, 2012, the substitute plaintiff agreed to have the record reflect that $20,000 had been tendered toward the $50,000 purge amount, and requested that the court stay the order of incarceration. The court, Gould, J. , ordered the defendant released from incarceration and that he not leave either Connecticut or New York without a court order.⁹ On June 5, 2012, Judge Gould also ordered the defendant to continue to pay the estate $500 per week toward the remaining $30,000 purge amount. The defendant did not comply.

On March 12, 2015, the substitute plaintiff filed an application for order to show cause why an order should not enter that the defendant (1) reimburse the estate for the fees and costs it incurred to defend the bankruptcy action; (2) commence making payments on the debt owed to the children; and (3) provide proof that he is maintaining life insurance to secure the judgment debt. On May 13, 2015, in response to the substitute plaintiff's application for order to show cause, the defendant filed a motion to dismiss, claiming that the substitute plaintiff lacked standing and, therefore, the court lacked subject matter jurisdiction over that portion of the action.

In his memorandum of law in support of his motion to dismiss, the defendant argued with respect to the claims made in the application for order to show cause that the substitute plaintiff had failed to demonstrate why his "obligations" inure to its benefit and how the substitute plaintiff is aggrieved by his actions or inactions in the context of the present case. He argued that the substitute plaintiff is neither classically nor statutorily aggrieved by the debt he owes the children and his failure to procure life insurance. The defendant also argued that the substitute plaintiff lacks standing to pursue a claim against him for the claimed attorney's fees and costs to defend the bankruptcy proceeding. Moreover, the defendant argued that the substitute plaintiff could not rely on the 2010 agreement and related court order, as the order was improper and void as a matter of law. More specifically, the defendant argued that upon the decedent's death, the court lacked subject matter jurisdiction to enter an order approving the 2010 agreement.

The substitute plaintiff objected to the motion to dismiss on the grounds that "(1) [the] [s]ubstituted plaintiff is [a] proper party; (2) [r]es judicata/collateral estoppel; (3) [the] [s]ubstituted party has interests; [and] (4) [p]ublic policy." On June 17, 2015, the court, Emons, J. , denied the defendant's motion to dismiss after finding that the "children's claim to the money is solely through the estate."¹⁰ The court scheduled a hearing on the merits of the application to show cause.

On July 14, 2015, the defendant filed an objection to the substitute plaintiff's application for order to show cause in which he claimed that he was sixty-six years...