Zilkha v. Zilkha

159 Conn.App. 167

123 A.3d 439

Karen ZILKHA

v.David ZILKHA.

No. 36499.

Appellate Court of Connecticut.

Argued March 9, 2015.

Decided Aug. 11, 2015.

Edward N. Lerner, Stamford, for the appellant (defendant).

Norman A. Roberts II, with whom, on the brief, was Antony L. Cenatiempo, for the appellee (guardian ad litem).

LAVINE, PRESCOTT and PELLEGRINO, Js.

Opinion

PELLEGRINO, J.

The defendant, David Zilkha, appeals from the judgment of the trial court, dispersing escrow money held from settlement funds received from his former employer to pay postjudgment fees to the guardian ad litem, the attorney for the minor children, and a custody evaluator.¹ On appeal, the defendant claims that the court (1) lacked authority to distribute the funds because the judgment of dissolution was never opened, and (2) improperly prohibited the defendant from testifying about his observations of the guardian ad litem's alleged improper conduct. We reverse the judgment in part with regard to the portion of the order requiring the distribution of the escrow money, and affirm it in all other respects.

The following facts and procedural history are relevant to our resolution of the defendant's claims. The plaintiff, Karen Zilkha, and the defendant were married on June 7, 1998. The plaintiff brought an action for dissolution of the parties' marriage, and a judgment of dissolution was rendered on May 31, 2005, incorporating by reference a separation agreement and a stipulation of the parties.

On November 14, 2008, the plaintiff filed a motion to open and set aside the dissolution judgment. The plaintiff's motion alleged that, during the pendency of the dissolution action, the defendant fraudulently failed to disclose a claim that he had against his former employer.² At the time the motion was filed, the defendant had already received $1,400,000 as a part of a settlement with his former employer regarding this claim, and a final payment of $700,000 was due to be paid to him in April, 2009. On April 9, 2009, the plaintiff filed an amended motion, requesting that the court order the defendant to escrow the $700,000 final payment.

On April 24, 2009, the plaintiff filed an ex parte motion for a temporary injunction to “[restrain] [the defendant] from moving, or in any way transferring the money set to be transferred to him on April 30, 2009....” The court denied the ex parte motion, but held a hearing on April 28, 2009, to permit all parties to be heard. At this hearing, the court granted the plaintiff's motion, ordering that $250,000³ of the April 30, 2009 payment be held in escrow pending the outcome of the plaintiff's postjudgment motion to open. As of the April, 2009 hearing, the court had not held an Oneglia hearing⁴ on the plaintiff's motion to open.⁵ The court explained the purpose of putting the funds in escrow, and the amount of the funds, by stating that it “wanted to at least preserve what [it] think[s] would be a sufficient portion, so that if [the plaintiff ] prevails, ultimately, then there's something at the end of that particular process. ” (Emphasis added.)

On February 3, 2010, and February 4, 2010, the court held an Oneglia hearing in connection with the plaintiff's 2008 motion to open. At the hearing, each side presented evidence as to whether the defendant had committed fraud. Following the hearing, the court concluded that there was more than a mere suspicion that the defendant committed fraud on the basis of the testimony and evidence presented. Accordingly, the court granted the plaintiff permission to conduct discovery to gather more information on the defendant's alleged fraud before a decision would be made on the postjudgment motion to open. The plaintiff does not challenge the defendant's representation that, despite the court's order, she took no further action in regard to discovery. On the basis of our review of the record, the 2008 motion to open remains pending, and no decision has been made as to whether the defendant committed fraud, which would warrant opening the judgment.

On September 10, 2012, the attorney for the minor children filed a postjudgment motion for fees and retainers in order to compel the payment of present and future fees for himself, as well as for the guardian ad litem and the custody evaluator.⁶ The court held a hearing on the motion over the course of six days, concluding on September 25, 2013. The court issued its memorandum of decision on November 19, 2013. In it, the court stated: “In general, in a family matter, an award of attorney's fees is within the discretion of the court, and in making a determination as to whether or not to grant such a request, the court must look at the financial abilities of the parties and apply the criteria set forth in General Statutes §§ 46b–62 and 46b–82.”⁷

The court ordered that both the defendant and the plaintiff each pay the following fees: $500 for the attorney for the minor children, $1500 for the guardian ad litem, and $500 for the custody evaluator. It further ordered the following disbursements from the court-ordered escrow: $40,000 to the attorney for the minor children, $62,577.95 to the guardian ad litem, and $9000 to the custody evaluator, as well as an additional $15,000 each for the attorney for the minor children and the guardian ad litem as retainers for upcoming litigation.⁸ The defendant appeals from the court's order that disbursed from the escrow funds the fees of the guardian ad litem, attorney for the minor children, and the custody evaluator, and he appeals the court's ruling on his right to testify concerning his observations of the guardian ad litem's conduct. Additional facts will be set forth as necessary.

I

The defendant first claims that the court lacked authority to distribute the escrow funds because the judgment of dissolution had not been opened. The defendant argues that the court's ruling at the conclusion of the Oneglia hearing only permitted the plaintiff to conduct limited discovery, following which, the court would consider the plaintiff's motion to open. The guardian ad litem argues in response that the record is insufficient for this court to review the defendant's claim. Additionally, she contends that, because the defendant did not appeal or file an amended appeal from the court's subsequent order on December 4, 2013, which awarded attorney's fees from the escrow account to two other individuals, he waived this claim and rendered his appeal moot on this issue.⁹ We agree with the defendant.

We begin by setting forth the applicable standard of review. The defendant in this case presents a situation in which he claims the court acted without authority. “[O]ur review of challenges to the authority of the court to act is plenary.” Hogan v. Lagosz, 147 Conn.App. 418, 433, 84 A.3d 434 (2013) ; see also Brody v. Brody, 153 Conn.App. 625, 630, 103 A.3d 981, cert. denied, 315 Conn. 910, 105 A.3d 901 (2014).

“Pursuant to General Statutes § 52–212a, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed.... An exception to the four month limitation applies, however, if a party can show, inter alia, that the judgment was obtained by fraud....

“A marital judgment based upon a stipulation may be opened if the stipulation, and thus the judgment, was obtained by fraud.” (Citation omitted; internal quotation marks omitted.)

Reville v. Reville, 312 Conn. 428, 441, 93 A.3d 1076 (2014) ; see also Billington v. Billington, 220 Conn. 212, 217–18, 595 A.2d 1377 (1991) ; Spilke v. Spilke, 116 Conn.App. 590, 595, 976 A.2d 69, cert. denied, 294 Conn. 918, 984 A.2d 68 (2009) ; Mattson v. Mattson, 74 Conn.App. 242, 245, 811 A.2d 256 (2002).

We conclude that the court lacked authority to order distributions from the escrow account to pay the attorney for the minor children, the guardian ad litem, and the custody evaluator. General Statutes § 46b–81 (a) provides in relevant part: “At the time of entering a decree ... dissolving a marriage ... pursuant to a complaint under section 46b–45, the Superior Court may assign to either spouse all or any part of the estate of the other spouse.” The court can redistribute assets pursuant to a motion to open. See General Statutes § 52–212a ; see also Dougherty v. Dougherty, 109 Conn.App. 33, 38–39, 950 A.2d 592 (2008). Nevertheless, “[u]ntil a motion to open has been granted, the earlier judgment is unaffected....” Bruno v. Bruno, 146 Conn.App. 214, 230, 76 A.3d 725 (2013). In this case, although the court was free to order that the defendant pay some or all of the fees to the attorney for the minor children, guardian ad litem and custody evaluator, it lacked the authority to direct that these payments be made from the escrowed funds. We are aware of no authority, and the guardian ad litem has cited none, that a court is authorized to choose which of a party's assets must be used to pay that party's share of fees for service rendered by a guardian ad litem, attorney for the minor children, or other individuals.¹⁰ Consequently, the court could not make orders for funds to be disbursed from the escrow account because those funds belonged solely to the defendant, until and unless, the court opened the judgment and distributed the escrowed funds, if at all.¹¹ Accordingly, the court was without authority to disburse funds from the escrow account. The judgment is reversed as to the order to disburse the escrow funds to the guardian ad litem, attorney for the minor children, and the custody evaluator, and that portion of the order is vacated.

II

The defendant next claims that the court improperly prohibited him from testifying as to his observations regarding the guardian ad litem's alleged improper conduct.¹² The defendant argues that the court improperly denied him an opportunity to testify about relevant and material conduct on the part of the guardian ad litem as part...