Zirinsky v. Zirinsky

87 Conn. App. 257

865 A.2d 488

SARAH ZIRINSKY, v. BRUCE ZIRINSKY.

(AC 23558), (AC 24289).

Appellate Court of Connecticut.

Argued September 9, 2004

Officially released February 8, 2005.

Schaller, Bishop and Berdon, Js.

Eric R. Posmantier, with whom, on the brief, was Andrew P. Nemiroff, for the appellant (defendant).

Mark R. Soboslai, for the appellee (plaintiff).

Opinion

SCHALLER, J.

These two appeals arise from postjudgment orders by the trial court. The defendant, Bruce Zirinsky, appeals from certain postdissolution orders of the court, all of which essentially denied his request for modification of an agreement between the parties with respect to the payment of child support. In both appeals, the defendant claims that the court improperly (1) permitted the plaintiff, Sarah Zirinsky,¹ to use a motion to strike to attack the legal sufficiency of postjudgment motions, (2) considered facts outside the pleadings when ruling on the plaintiff's motions to strike and (3) granted the motions to strike. We reverse the orders of the court.

A detailed recitation of the facts and procedural history is necessary for the resolution of these appeals. The defendant and the plaintiff were married in New York on October 26, 1979. They have four children of the marriage, the oldest born in 1984 and the youngest born in 1987. The marriage was dissolved by the court on June 16, 1999. Incorporated into the dissolution judgment was an extensive written agreement.

The agreement, a twenty-four page document, provided that the parties would share joint legal custody of the four children, who would reside primarily with the plaintiff. The defendant was required to pay any costs or expenses associated with his visitation rights and was ineligible to receive any deduction from his payment obligation to the plaintiff. The agreement provided that the defendant was to pay a base amount of unallocated alimony and support of $21,000 per month.²

Paragraph 3.16 (a) of the agreement provided that the alimony orders³ were subject to modification pursuant to General Statutes § 46b-86, except that the plaintiff was precluded from claiming additional alimony in the event that the defendant's income exceeded $2.5 million. Paragraph 3.16 (a) also referenced paragraph 3.23 of the agreement, which provided in relevant part that the "children ceasing to principally reside with the [plaintiff] shall not be a substantial change in circumstances for purposes of [§ 46b-86] . . . ." The parties signed the agreement on June 15, 1999, and the court incorporated it into the judgment on June 16, 1999.

The defendant filed a postjudgment motion for modification in July, 2001.⁴ The defendant alleged that one of the children was attending boarding school and, when not at school, resided exclusively with him. He further alleged that another of the minor children lived exclusively with him. Finally, he claimed that during the period after judgment had been rendered and the filing of his motion, all of the children had spent substantial amounts of time in his home. The defendant referenced language in the agreement that the plaintiff "shall be responsible for support of the minor children" and on the basis of the aforementioned change in circumstances, he was entitled to received support payments for the children who lived with him.

On September 27, 2001, the plaintiff filed a motion to dismiss the defendant's motion for modification, which the court denied. The plaintiff, pursuant to Practice Book § 25-16, subsequently filed on September 12, 2002, a motion to strike the defendant's motion for modification. She argued that the express terms of the agreement stated that the children's change of residence was not a ground for modification and therefore the defendant's motion was legally insufficient.

The court held a hearing on the plaintiff's motion on September 30, 2002. At the conclusion of that hearing, the court granted the plaintiff's motion. On October 8, 2002, the defendant filed the appeal designated AC 23558, and on October 24, 2002, he filed a motion for articulation of the court's decision. On December 30, 2002, the court filed a written memorandum of decision articulating its prior oral order. The court determined that the parties clearly and unambiguously provided that if some or all of the children ceased to reside with the plaintiff, it would not constitute a substantial change in circumstances warranting modification. The court concluded, therefore, that the defendant's motion for modification, which was based solely on the changed residence of the minor children, was legally insufficient. Neither party moved for judgment and, as a result, the court did not render judgment following the granting of the plaintiff's motion to strike.

On October 25, 2002, after the appeal designated AC 23558 had been filed, the defendant filed a postjudgment motion for contempt. In the motion, he again alleged that the plaintiff had failed to provide child support and wilfully disregarded the judgment of the court requiring her to pay support for the minor children. The defendant requested in relevant part that "(1) the plaintiff be found in contempt for her failure to pay for the reasonable support of her children as specifically required pursuant to paragraph 3.21 of the . . . [a]greement; (2) the plaintiff be ordered to reimburse the defendant for the reasonable payments made by him for the support for the children; (3) the plaintiff be ordered to pay for the reasonable monthly support for those minor children that continue to reside with the defendant; and (4) the court enter such other and further relief that it deems just and proper."

Simultaneous with the filing of the motion for contempt, the defendant filed a postjudgment motion for an order pertaining to child support. He again alleged that the plaintiff had failed to pay the support for the children. He requested that the court order the plaintiff to reimburse him for payments made to support the minor children living with him and to pay reasonable monthly support for those children.

On December 26, 2002, the plaintiff filed a motion to strike or to dismiss the defendant's motions for contempt and for an order. The court issued its memorandum of decision on April 28, 2003. The court, at the outset, stated that the defendant was "testing the same provisions" of the agreement that he had challenged with the prior motion for modification. The court struck the defendant's motion for an order on the same basis that it had granted the motion to strike the defendant's motion for modification. As to the motion for contempt, the court struck only paragraphs two and three of the relief sought by the defendant, sustained the objection to the motion to strike with respect to paragraphs one and four and noted that an evidentiary hearing was required. Again, because neither party moved for judgment after the court granted the plaintiff's motion to strike, the court did not render judgment. The defendant filed an appeal on May 14, 2003, designated AC 24289, from the partial granting of the motion to strike.

I AC 23558

We first address the appeal designated AC 23558. Before considering the merits of the issues framed by the parties, we must first determine whether the appeal has been brought from a final judgment.⁵ Second, we address the waiver issue raised by the plaintiff. Only if we conclude that an appealable final judgment exists and that the defendant did not waive his rights to appeal will we reach the merits of the appeal.

A

"We begin with established jurisdictional principles that guide, and indeed control, whether an order is appealable. Appellate jurisdiction is limited, with few statutory exceptions not pertinent to this case, to appeals from final judgments. See General Statutes §§ 51-197a, 51-199 and 52-263; see also Practice Book § 4000 [now § 61-1]. Consequently, interlocutory appeals must be dismissed. The difficulty comes not with the rule, but, rather, with its application. To help evaluate whether an otherwise interlocutory order is nonetheless final for purposes of appeal, we have in recent years relied on the standard set forth in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983), which permits the immediate appealability of an order `in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.'" Taff v. Bettcher, 243 Conn. 380, 384-85, 703 A.2d 759 (1997). Furthermore, "[b]ecause [appellate] jurisdiction over appeals, both criminal and civil, is prescribed by statute, [appellate courts] must always determine the threshold question of whether the appeal is taken from a final judgment before considering the merits of the claim." (Internal quotation marks omitted.) Ahneman v. Ahneman, 243 Conn. 471, 478-79, 706 A.2d 960 (1998).

With respect to the appeal designated AC 23558, the court granted the plaintiff's motion to strike the motion for modification filed by the defendant. No judgment, however, was rendered following the decision. If this were a civil proceeding outside a postdissolution context, in which a motion to strike had been used to challenge the legal sufficiency of either a complaint, counterclaim or cross claim; see Practice Book § 10-39; the lack of a judgment would pose a serious, if not fatal, final judgment problem. "The granting of a motion to strike . . . ordinarily is not a final judgment because our rules of practice afford a party a right to amend deficient pleadings. See Practice Book § 10-44." Egri v. Foisie, 83 Conn. App. 243, 249, 848 A.2d 1266, cert. denied, 271 Conn. 931, 859 A.2d 930 (2004); see also Grier v. West Haven Police Dept., 8 Conn. App. 142, 143-44, 510 A.2d 1376 (1986) (party against whom motion to strike is granted must either replead within fifteen days or move for judgment in order...