Shear v. Shear

194 Conn.App. 351

221 A.3d 450

Daniel SHEAR

v.Yupaporn SHEAR

AC 40830

Appellate Court of Connecticut.

Argued May 16, 2019

Officially released November 19, 2019

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

Julé A. Crawford, Middletown, for the appellee (defendant).

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

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 magistrate¹ 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 postdissolution 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 Security Administration. Magistrate Schulman rejected the interpretation of the case law offered by the plaintiff's counsel, stating: "[B]ut I have to say that the lump sum payment from [the] Social Security [Administration] is not refundable to your client, nor should it be."

At the conclusion of the discussion regarding the overpayment issue, the plaintiff's counsel raised the matter of the January 20, 2017 stipulation. The plaintiff's counsel argued that the plaintiff was entitled to a refund of $1188.30 because support enforcement services had paid that sum of money to the defendant, despite the terms of the stipulation to withhold any disbursement until the hearing. In response, Magistrate Schulman remarked: "I—I—first of all, I'd have to see the figures as we outline here and see what happened from January 5. I'm not sure if anything would be returned to [the plaintiff] because if there's something being held. And first of all, I don't think support enforcement [services] was a signatory to this stipulation anyway. So ... administratively, I can't micromanage, and if this happened and everything happens to be paid off, then wonderful ...." Aside from this brief comment, Magistrate Schulman did not conclusively address the stipulation issue.

After further discussion of the issues and argument from the parties, Magistrate Schulman issued his findings. The plaintiff's weekly child support obligation was reduced to zero, after accounting for the minor child's social security dependency benefit paid to the defendant as representative payee. Magistrate Schulman further determined that any excess from the Social Security Administration disability benefits paid to the defendant constituted a gratuity and was not refundable to the plaintiff.

On March 23, 2017, the plaintiff moved for reconsideration of the March 9, 2017 order. Specifically, the plaintiff requested Magistrate Schulman to "allow him credit for lump sum and monthly social security dependency benefits paid to the [d]efendant for the parties' minor child for the period in which the [p]laintiff was entitled to social security benefits. In addition, the [p]laintiff also respectfully moves the [family support magistrate] to reconsider the arrears in light of the parties' [s]tipulation, dated January 20, 2017, approved and made an order of the [family support magistrate] on that date, such that any ... overpayment to the [d]efendant as a result ... be ordered refunded to the [p]laintiff." Magistrate Schulman denied the motion for reconsideration on April 10, 2017.

On April 24, 2017, the plaintiff filed an appeal from Magistrate Schulman's March 9, 2017 order to the Superior Court.⁵ Specifically, he claimed that Magistrate Schulman improperly denied him credit for the lump sum and monthly social security dependency benefits paid to the defendant and failed to take into account the parties' January 20, 2017 stipulation in calculating his child support arrearage. As a result, the plaintiff argued that he was entitled to a refund from the defendant. On July 10, 2017, the court, Hon. Gerard I. Adelman , judge trial referee, held a hearing on the plaintiff's appeal.

At that proceeding, the plaintiff's counsel presented two issues. First, he argued that during the time period of June 1, 2014 to January 5, 2017, the plaintiff's child support obligation was $71 per week. As a result of the disability determination, retroactively effective on June 1, 2014, $38.16 would be paid by the Social Security Administration and $32.84 by the plaintiff. However, because the plaintiff solely had been responsible for the $71 per week for that time period, he was entitled to a refund from the lump sum social security disability for the $38.16 per week over the approximately thirty-one month time period. The plaintiff's counsel asserted that the plaintiff had overpaid the defendant $6240.95. Second, the plaintiff's counsel contended that, despite the January 20,...