Nassra v. Nassra ( 2018 )

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ELIANA NASSRA v. GEORGE A. NASSRA
(AC 38615)
Sheldon, Elgo and Mihalakos, Js.
Syllabus
The defendant, whose marriage to the plaintiff previously had been dis-
solved, appealed to this court from the judgment of the trial court
ordering the payment of court-ordered visitation supervisor fees to N.
Co., a nonparty. The guardian ad litem had engaged S, a principal of N.
Co., to provide supervised visitation services to the defendant and his
children as part of court-ordered reunification therapy, beginning in
2009. In February, 2010, the defendant had filed a motion for payment,
requesting permission to deduct additional funds from his life insurance
policy to pay outstanding bills for a psychologist and S, who had assisted
the psychologist in providing the supervised visitation services. In March,
2010, the trial court, by agreement of the parties, entered an order
authorizing the defendant to borrow an additional $25,000 from the life
insurance policy to pay additional outstanding bills to certain parties,
including S. After N. Co. terminated its services with the defendant in
July, 2010, for lack of payment for services rendered, it filed an appear-
ance in the present dissolution action and, thereafter, filed a motion for
order of payment. The defendant then filed a motion to dismiss N. Co.’s
motion on the ground that the court lacked subject matter jurisdiction
because N. Co. lacked standing. The trial court denied the defendant’s
motion to dismiss and, subsequently, granted N Co.’s motion for order
of payment, ordering the plaintiff and the defendant to be equally respon-
sible for the debt to N. Co. Held:
1. The trial court properly determined that N. Co., which satisfied the require-
ments of classical aggrievement, had standing to bring an action against
the defendant and, therefore, that it had subject matter jurisdiction over
the action; the record supported that court’s finding that a valid oral
contract existed between the defendant and N. Co., which met the first
prong of classical aggrievement by demonstrating a specific, personal
and legal interest in the cause of action sounding in breach of an oral
contract, as well as the second prong of classical aggrievement concern-
ing whether it had been injured by the challenged action, as the record
demonstrated that N. Co. provided the defendant with supervised visita-
tion services and was not paid for those services, thereby establishing
that N. Co had been specially and injuriously affected by the defendant’s
failure to pay.
2. The defendant could not prevail on his claim that even if an agreement
existed with N Co., it was an oral one and, thus, was time barred by
the three year statute of limitations (§ 52-581 [a]); § 52-581 (a) does not
apply to an oral contract that has been executed, and because, at the
time N. Co. terminated its services for lack of payment, it had fully
performed its contractual obligations and the oral contract, thus, was
executed, § 52-581 did not apply and, instead, a six year statute of
limitations (§ 52-576) was applicable to this case, and N Co.’s claim,
which was brought less than six years after the completion of its services,
was not time barred.
3. The defendant could not prevail on his claim that the trial court improperly
ordered the parties to be equally responsible for the debt to N Co. after
they had already complied with the separation agreement that had been
incorporated into the dissolution agreement, which was based on his
claim that the parties had no notice of the issue of the fees; the defendant
had notice of the issue through N. Co.’s motion for order of payment, he
addressed the issue through his motion to dismiss and at oral argument
at the hearing on N Co.’s motion, the trial court decided an issue that
was raised in the pleadings and its calculation of debt was supported
by the record, and, therefore, it acted within its discretion in ordering
the parties to be equally responsible for the debt to N Co.
Submitted on briefs November 30, 2017—officially released March 27, 2018
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Bridgeport and tried to the court, Frankel, J.;
judgment dissolving the marriage and granting certain
other relief; thereafter, N.J. Sarno and Company, LLC,
filed a motion for order of payment, which the court,
Adelman, J., granted, and the defendant appealed to
this court. Affirmed.
Thomas J. Weihing, Adam J. Tusia, and Joseph D.
Compagnone filed a brief for the appellant (defendant).
Logan A. Forsey and Timothy J. McGuire filed a
brief for the appellee (N.J. Sarno and Company, LLC).
Opinion
MIHALAKOS, J. This appeal arises from an action in
which a nonparty, N.J. Sarno and Company, LLC (N.J.
Sarno), filed a motion for order of payment of court-
ordered visitation supervisor fees in connection with
the underlying dissolution action between the plaintiff1
and the defendant, George A. Nassra. After the court
held a hearing on the motion, it rendered judgment for
N.J. Sarno, finding the parties jointly and severally liable
in the amount of $8785. On appeal, the defendant claims
that the trial court: (1) lacked subject matter jurisdic-
tion over the action because N.J. Sarno lacked standing;
(2) improperly determined that an oral contract existed
between N.J. Sarno and the defendant;2 (3) improperly
determined that N.J. Sarno’s contract claim was not
time barred by the three year statute of limitations
provided by General Statutes § 52-581 (a); and (4)
improperly rendered judgment in favor of N.J. Sarno
after the parties had complied with the terms of the
separation agreement. We disagree and, accordingly,
affirm the judgment of the trial court.
The record reflects the following facts and procedural
history. The plaintiff and the defendant were married
on July 4, 1993. On December 15, 2008, the plaintiff
filed an action seeking the dissolution of the marriage
and custody of the parties’ two minor children. Attorney
Brian Kaschel subsequently was appointed by the court
as guardian ad litem for the parties’ two minor children.
The parties agreed to deduct funds from the defendant’s
Northwest Mutual life insurance policy, which were to
be held by Kaschel, to pay for attorney, expert and
guardian ad litem fees.
On October 16, 2009, in connection with court-
ordered reunification therapy, Kaschel referred the par-
ties to David J. Israel, a psychologist, for an evaluation
of the minor children and the development of a parent-
ing plan. Kaschel also engaged Nicholas Sarno, a princi-
pal of N.J. Sarno, to provide supervised visitation
services for the defendant and his children. In Decem-
ber, 2009, Israel began reunification therapy between
the defendant and his two children. Sarno was present
and ‘‘supervised’’ at each of these sessions with Israel.
In February, 2010, Sarno and Donald Jacques, another
employee of N.J. Sarno, began to facilitate and super-
vise visitation between the defendant and his children
outside of sessions with Israel. On February 25, 2010,
the defendant filed a motion for payments, in which he
requested permission to deduct additional funds from
his life insurance policy to pay outstanding bills for
‘‘[Israel] . . . and [Sarno], who is assisting [Israel] with
supervised visitation.’’ On March 17, 2010, N.J. Sarno
sent a letter to the defendant, stating: ‘‘Please be advised
that if [N.J. Sarno] does not receive payment in full on
your [six] outstanding invoices by . . . March 19, 2010,
we will no longer be able to continue providing [s]uper-
vised [v]isitation services. . . . Sincerely, Nicholas
Sarno . . . [N.J. Sarno].’’ On March 18, 2010, the court,
by agreement of the dissolution parties, entered an
order authorizing the defendant to borrow an additional
$25,000 from the life insurance policy ‘‘for the payment
of fees to Kaschel . . . [Israel] and his assistant
[Sarno]. [Kaschel] will hold and distribute [these]
funds.’’ Thereafter, the defendant brought his account
current and N.J. Sarno continued to provide supervised
visitation services. On July 29, 2010, N.J. Sarno termi-
nated its services on the basis of lack of payment dating
back to June 11, 2010.
Approximately four years later, on July 24, 2014, N.J.
Sarno brought an action in the small claims session
of the Superior Court. On March 6, 2015, the court
determined that it lacked jurisdiction and dismissed the
action. Four days later, N.J. Sarno filed an appearance
in the underlying dissolution action and, thereafter, on
March 18, 2015, moved for an order of payment of court-
ordered visitation supervisor fees. In its motion, N.J.
Sarno alleged that the defendant owed it $8785 for
court-ordered supervised visitation services rendered
between June 11, 2010 and July 29, 2010.
On April 1, 2015, the defendant moved to dismiss N.J.
Sarno’s motion, claiming that the court lacked subject
matter jurisdiction because N.J. Sarno did not have
standing to bring the action. Specifically, the defendant
argued that N.J. Sarno lacked standing because it ‘‘was
not involved in the instant action,’’ ‘‘ha[d] never been
referred to throughout the case,’’ and ‘‘is a different
entity than [Sarno] in his capacity as [Israel’s] assistant.’’
The defendant attached as an exhibit the court’s March
18, 2010 order, which refers to Sarno as Israel’s assis-
tant. On April 21, 2015, N.J. Sarno filed an objection to
the defendant’s motion to dismiss the order of payment.
N.J. Sarno attached as an exhibit the March 17, 2010
letter.
On June 24, 2015, the court, Sommer, J., issued a
written order denying the defendant’s motion to dis-
miss. In its order, the trial court made the following
findings: ‘‘In this action, there is no dispute that the
defendant received the services rendered by individuals
employed by [N.J. Sarno] over a significant period of
time beginning in January, 2010, in compliance with
court ordered reunification therapy for the defendant
and his children, that the defendant paid a portion of
the bill for said services and requested the family court’s
permission to utilize certain financial resources to pay
for court-ordered supervised visitation provided by indi-
viduals under the auspices of [N.J. Sarno]. . . . As
noted by [N.J. Sarno], the [defendant] has failed to sub-
mit any proof to rebut [N.J. Sarno’s] jurisdictional alle-
gations or any evidence which would call them into
question. . . . [T]he court finds that the defendant has
failed to establish a basis for the court to dismiss the
motion for order of payment of court-ordered visitation
supervisor fees. . . .’’
On July 7, 2015, the defendant moved the court for
reconsideration, or in the alternative, articulation of
certain factual findings underlying its denial of his
motion to dismiss. Specifically, the defendant requested
that the court articulate its findings that: (1) ‘‘there is
no dispute that the defendant received the services
rendered by the individuals employed by [N.J. Sarno]’’
and (2) ‘‘the defendant paid a portion of the bill for
said services.’’ The court, Adelman, J., denied the defen-
dant’s motion on July 20, 2015.3
On December 14, 2015, Judge Adelman conducted a
hearing on N.J. Sarno’s motion for order of payment.
The court heard testimony from Sarno, who explained
that he was a co-owner of N.J. Sarno, which was an
active limited liability company at all times it provided
services to the defendant. Sarno testified that he was
not Israel’s assistant, had no formal working relation-
ship with Israel and that he became involved at the
request of Kaschel. Sarno further testified that, initially,
there was an agreement that Kaschel would pay N.J.
Sarno’s invoices until the money ran out of escrow.
Sarno explained that in March, 2010, there was an
unpaid balance of approximately $4000 and that ‘‘[he]
could no longer carry [the defendant]’’ because ‘‘[he]
had a responsibility not only to [his] company and [him-
self], but also to one of [his] employees.’’ Sarno
informed the defendant that he could not continue to
provide visitation services if he was not paid. Sarno
testified that the defendant replied ‘‘please, don’t leave.
. . . I promise to pay you’’ and that, thereafter, the
defendant would pay him ‘‘now and then.’’
At the hearing, N.J. Sarno submitted into evidence
eight invoices that were billed by N.J. Sarno to the
defendant for services performed between April 1, 2010
and July 29, 2010. Four invoices were marked ‘‘paid’’;
the four remaining invoices were unpaid, totaling $8785.
Sarno testified that the invoices accurately represented
the services that were provided to the defendant. Sarno
stated that he hand delivered an invoice to the defen-
dant on a weekly basis. Sarno further testified that he
would always provide receipts for payments made by
the defendant, stating: ‘‘[I]f [the defendant] made a pay-
ment and if it was not by check, if it was cash, we wrote
out a . . . hand receipt that would say to [the defen-
dant] from [N.J. Sarno], subject cash payment towards
balance. Then in the body we would write received
from [the defendant] . . . the sum . . . to be placed
against balance outstanding, and then signed. . . . We
have never . . . stopped that procedure in twenty-
three years.’’ Sarno acknowledged that he has no record
of specific payments made by Kaschel or the defendant,
or copies of receipts, just that the invoices were paid.
The defendant also testified. He disagreed with the
dates of service listed on the invoices. He further testi-
fied that he sometimes paid Sarno in cash but that he
was never given a receipt. After hearing testimony, the
court stated that it was ‘‘certainly familiar with [Sarno’s]
company and the services that [N.J. Sarno] has ren-
dered. . . . [E]verything in this file indicates, in
agreements and orders, that this was . . . a joint debt
of the parties.’’ The court then ordered that the plaintiff
and defendant ‘‘shall be equally responsible for the debt
to [N.J. Sarno] in the amount of $8785.’’ This appeal
followed. Additional facts and procedural history will
be set forth as necessary.
I
We first address the defendant’s standing claim
because it implicates subject matter jurisdiction and,
thus, presents a threshold issue for our determination.
See, e.g., Dow & Condon, Inc. v. Brookfield Develop-
ment Corp., 266 Conn. 572, 579, 833 A.2d 908 (2003)
(‘‘[o]nce the question of lack of jurisdiction of a court
is raised, [however, it] must be disposed of no matter
in what form it is presented . . . and the court must
fully resolve it before proceeding further with the case’’
[internal quotation marks omitted]). The defendant
claims that N.J. Sarno, a limited liability company, lacks
standing because it does not have a legal or equitable
right, title or interest in the subject matter of this contro-
versy. Specifically, the defendant argues that
‘‘[a]lthough [Sarno] acted as [Israel’s] assistant to facili-
tate and supervise the visitation . . . [N.J. Sarno] was
not involved in the instant action,’’ and that ‘‘there is no
evidence that a contract, either oral or written, existed
between N.J. Sarno and [the defendant].’’ In response,
N.J. Sarno argues that ‘‘there was ample evidence that
[it] had standing to [enforce the terms of the oral con-
tract] and bring [an action] and, therefore, the court had
subject matter jurisdiction.’’ We agree with N.J. Sarno.
We initially note that although the defendant has
appealed from the court’s determination regarding lia-
bility, he renews his argument, previously raised in his
motion to dismiss, that the court lacked subject matter
jurisdiction because N.J. Sarno lacked standing.4 ‘‘If a
party is found to lack standing, the court is without
subject matter jurisdiction to hear the case. Because
standing implicates the court’s subject matter jurisdic-
tion, the [nonparty] ultimately bears the burden of
establishing standing. A trial court’s determination of
whether a [nonparty] lacks standing is a conclusion of
law that is subject to plenary review on appeal. We
conduct that plenary review, however, in light of the
trial court’s findings of fact, which we will not overturn
unless they are clearly erroneous. . . . In undertaking
this review, we are mindful of the well established
notion that, in determining whether a court has subject
matter jurisdiction, every presumption favoring juris-
diction should be indulged. . . . This involves a two
part function: where the legal conclusions of the court
are challenged, we must determine whether they are
legally and logically correct and whether they find sup-
port in the facts set out in the [record]; where the factual
basis of the court’s decision is challenged we must
determine whether the facts . . . are supported by the
evidence or whether, in light of the evidence and the
pleadings in the whole record, those facts are clearly
erroneous. . . . A court’s determination is clearly erro-
neous only in cases in which the record contains no
evidence to support it, or in cases in which there is
evidence, but the reviewing court is left with the definite
and firm conviction that a mistake has been made.’’
(Citations omitted; internal quotation marks omitted.)
R.S. Silver Enterprises, Inc. v. Pascarella, 163 Conn.
App. 1, 7–8, 134 A.3d 662, cert. denied, 320 Conn. 929,
133 A.3d 460 (2016).
‘‘Standing is the right to set judicial machinery in
motion. One cannot rightfully invoke the jurisdiction
of the court unless he has, in an individual or representa-
tive capacity, some real interest in the cause of action,
or a legal or equitable right, title or interest in the subject
matter of the controversy. . . . [W]hen standing is put
in issue, the question is whether the person whose
standing is challenged is a proper party to request an
adjudication of the issue and not whether the contro-
versy is otherwise justiciable, or whether, on the merits,
the [nonparty] has a legally protected interest [that may
be remedied]. . . .
‘‘Standing is established by showing that the party
claiming it is authorized by statute to bring an action,
in other words statutorily aggrieved, or is classically
aggrieved. . . . The fundamental test for determining
[classical] aggrievement encompasses a well-settled
twofold determination: [F]irst, the party claiming
aggrievement must successfully demonstrate a specific,
personal and legal interest in [the challenged action],
as distinguished from a general interest, such as is the
concern of all members of the community as a whole.
Second, the party claiming aggrievement must success-
fully establish that this specific personal and legal inter-
est has been specially and injuriously affected by the
[challenged action]. . . . Aggrievement is established
if there is a possibility, as distinguished from a certainty,
that some legally protected interest . . . has been
adversely affected.’’ (Internal quotation marks omitted.)
Chiulli v. Zola, 97 Conn. App. 699, 704–705, 905 A.2d
1236 (2006); accord May v. Coffey, 291 Conn. 106, 112,
967 A.2d 495 (2009); Heinonen v. Gupton, 173 Conn.
App. 54, 60, 162 A.3d 70, cert. denied, 327 Conn. 902,
169 A.3d 794 (2017).
‘‘A limited liability company is a distinct legal entity
whose existence is separate from its members. . . . A
limited liability company has the power to sue or to be
sued in its own name . . . or may be a party to an
action brought in its name by a member or manager.
. . . A member or manager, however, may not sue in
an individual capacity to recover for an injury based
on a wrong to the limited liability company.’’ (Citations
omitted; footnote omitted; internal quotation marks
omitted.) Channing Real Estate, LLC v. Gates, 326
Conn. 123, 137–38, 161 A.3d 1227 (2017); O’Reilly v.
Valletta, 139 Conn. App. 208, 214, 55 A.3d 583 (2012),
cert. denied, 308 Conn. 914, 61 A.3d 1101 (2013).
In the present case, whether N.J. Sarno has been
classically aggrieved and, therefore, has standing,
hinges on whether a contractual relationship existed
between N.J. Sarno and the defendant. ‘‘It is well settled
that one who [is] neither a party to a contract nor a
contemplated beneficiary thereof cannot sue to enforce
the promises of the contract. . . . Under this general
proposition, if the [nonparty] is neither a party to, nor a
contemplated beneficiary of, [the] agreement, [it] lacks
standing to bring [its] claim for breach of [contract].’’
(Citation omitted; internal quotation marks omitted.)
Deutsche Bank National Trust Co. v. Cornelius, 170
Conn. App. 104, 116 n.10, 154 A.3d 79, cert. denied, 325
Conn. 922, 159 A.3d 1171 (2017); Dow & Condon, Inc.
v. Brookfield Development Corp., supra, 266 Conn. 579;
see also Chila v. Stuart, 81 Conn. App. 458, 464, 840 A.2d
1176 (‘‘[i]t is axiomatic that an action upon a contract
or for breach of a contract can be brought and main-
tained by one who is a party to the contract sued upon’’
[citation omitted; internal quotation marks omitted]),
cert. denied, 268 Conn. 917, 847 A.2d 311 (2004).
‘‘[Where] there [is] no written agreement, and, there-
fore, no definitive contract language to interpret,
determining who was a party to the contract and the
intent of those parties with respect to the terms of any
contractual agreement involve[s] factual determina-
tions that we will reverse only if clearly erroneous.’’
(Internal quotation marks omitted.) Computer
Reporting Service, LLC v. Lovejoy & Associates, LLC,
167 Conn. App. 36, 45, 145 A.3d 266 (2016).
In the present case, Judge Sommer found that the
defendant: (1) ‘‘received the services rendered by indi-
viduals employed by [N.J. Sarno] over a significant
period of time’’; (2) ‘‘paid a portion of the bill for said
services’’; and (3) ‘‘requested . . . permission to
[deduct funds from the life insurance policy] to pay for
court ordered supervised visitation provided by individ-
uals under the auspices of [N.J. Sarno].’’ Furthermore,
at the December 14, 2015 hearing on the motion for
order of payment, Judge Adelman acknowledged that
‘‘there [was] no written contract, there [was] simply an
oral contract.’’ We note that the court made very few
factual findings relative to the formation of an oral
contract other than its existence;5 however, our review
of the record before the trial court reveals that there
was sufficient evidence to support the court’s finding
that a valid oral contact existed.
The record indicates that N.J. Sarno, through its
agents Sarno and Jacques, provided the defendant with
supervised visitation services between January and
July, 2010. N.J. Sarno’s invoices were initially paid with
the defendant’s funds, which were held in escrow by
Kaschel. When those funds were depleted, the defen-
dant acknowledged his obligation to pay for N.J. Sarno’s
services by way of his February 25, 2010 motion for
payments and subsequent March 18, 2010 agreement,
which was ‘‘incorporated by reference into the order
. . . of the court’’ pursuant to General Statutes § 46b-
66 (a).6 On the basis of this court order, the defendant
argues that ‘‘the authority for [Sarno] to do anything
came from [Israel] and the court’s authorization to allow
[Sarno] to work for [Israel] as his assistant,’’ and that
N.J. Sarno ‘‘must be forced to show that [it] has standing
based on the [March 18, 2010 agreement] alone.’’ Such
an argument ignores the fact that this language origi-
nated from a handwritten agreement between the defen-
dant and the plaintiff, an agreement that N.J. Sarno was
not a party to, and was incorporated as an order of the
court. To the extent the defendant asserts that he did
not know he was dealing with a limited liability com-
pany, the record before this court belies that assertion.7
Furthermore, although the defendant argues that
‘‘N.J. Sarno has not provided sufficient evidence to dem-
onstrate the existence of a contract independent [of
the March, 2010] agreement,’’ he did not dispute Sarno’s
testimony that the defendant promised to pay him in
March, 2010, that Sarno hand delivered invoices from
N.J. Sarno on a weekly basis, and that the defendant
paid him on occasion thereafter. On the basis of our
review, we conclude that the court’s finding that an
oral agreement existed between N.J. Sarno and the
defendant was supported by the record. We conclude
that N.J. Sarno has met the first prong of classical
aggrievement by demonstrating a specific, personal and
legal interest in the cause of action, which sounds in
breach of an oral contract. See, e.g., Padawer v. Yur,
142 Conn. App. 812, 66 A.3d 931 (limited liability com-
pany was proper party to sue on contract where party
acted as agent of limited liability company and not as
an individual), cert. denied, 310 Conn. 927, 78 A.3d 145
(2013); Kadar Development Corp. v. Masulli, 33 Conn.
Supp. 613, 364 A.2d 851 (1976) (corporation had stand-
ing to sue on oral contract entered into between corpo-
ration’s president and defendant).
We also conclude that N.J. Sarno has met the second
prong of classical aggrievement, which ‘‘involves a
determination of whether [it] has been injured by the
challenged action.’’ Chiulli v. Zola, supra, 97 Conn. App.
705. The record demonstrates that N.J. Sarno provided
supervised visitation services to the defendant and was
not paid for those services. We therefore conclude that
N.J. Sarno has established that it has been specially
and injuriously affected by the defendant’s failure to
pay. Because N.J. Sarno has satisfied the requirements
of classical aggrievement, we conclude that it had stand-
ing to bring an action against the defendant and, there-
fore, that the trial court had subject matter jurisdiction
over the action.
II
Notwithstanding the defendant’s claim that no con-
tract existed, in the final paragraph of his initial brief,
he argues that ‘‘if an agreement existed . . . the
agreement . . . would have been oral’’ and, therefore,
time barred by the three year statute of limitations
provided by § 52-581 (a). We conclude, however, that
N.J. Sarno’s claim is not time barred.
We begin by setting forth the applicable standard of
review and the relevant legal principles that guide our
analysis. ‘‘The question of whether a party’s claim is
barred by the statute of limitations is a question of
law, which this court reviews de novo. . . . The factual
findings that underpin that question of law, however,
will not be disturbed unless shown to be clearly errone-
ous.’’ (Citation omitted; internal quotation marks omit-
ted.) Village Mortgage Co. v. Veneziano, 175 Conn. App.
59, 75–76, 167 A.3d 430, cert. denied, 327 Conn. 957,
172 A.3d 205 (2017).
Section 52-581 (a) provides that: ‘‘No action founded
upon any express contract or agreement which is not
reduced to writing, or of which some note or memoran-
dum is not made in writing and signed by the party to
be charged therewith or his agent, shall be brought but
within three years after the right of action accrues.’’
General Statutes § 52-576 (a), however, provides in rele-
vant part: ‘‘No action for an account, or on any simple
or implied contract, or on any contract in writing, shall
be brought but within six years after the right of action
accrues . . . .’’
This court has previously addressed the distinction
between §§ 52-581 and 52-576. ‘‘These two statutes,
each establishing a different period of limitation, can
both be interpreted to apply to actions on oral contracts.
Our Supreme Court has distinguished the statutes, how-
ever, by construing § 52-581, the three year statute of
limitations, as applying only to executory contracts.
. . . A contract is executory when neither party has
fully performed its contractual obligations and is exe-
cuted when one party has fully performed its contrac-
tual obligations. . . . It is well established, therefore,
that the issue of whether a contract is oral is not disposi-
tive of which statute applies. Thus, the . . . argument
that § 52-581 automatically applies to [an] oral contract
. . . is incorrect. The determinative question is whether
the contract was executed.’’ (Citations omitted; empha-
sis in original; internal quotation marks omitted.) Bag-
oly v. Riccio, 102 Conn. App. 792, 799, 927 A.2d 950,
cert. denied, 284 Conn. 931, 934 A.2d 245 (2007); accord
John H. Kolb & Sons, Inc. v. G & L Excavating, Inc.,
76 Conn. App. 599, 610, 821 A.2d 774, cert. denied, 264
Conn. 919, 828 A.2d 617 (2003).
The defendant recognizes this statutory distinction
and argues that the alleged oral agreement is executory
in nature because neither he nor N.J. Sarno has fully
performed their contractual obligations.8 We are not
persuaded. The record demonstrates that at the time
N.J. Sarno terminated its services for lack of payment
it had fully performed its contractual obligations, specif-
ically, providing supervised visitation services. The oral
contract, therefore, is executed. See, e.g., John H.
Kolb & Sons, Inc. v. G & L Excavating, Inc., supra, 76
Conn. App. 610 (contract executed where ‘‘plaintiff had
performed all of its contractual obligations fully by
obtaining the insurance on behalf of the defendant . . .
[and] [a]ll that remained was for the defendant to pro-
vide payment for the plaintiff’s services’’); Tierney v.
American Urban Corp., 170 Conn. 243, 249, 365 A.2d
1153 (1976) (oral contract executed when plaintiff had
done everything he had contracted to do); Campbell v.
Rockefeller, 134 Conn. 585, 587–88, 59 A.2d 524 (1948)
(oral contract executed where ‘‘everything that was to
have been done by the plaintiff had been done, and all
that remained was [for the defendant] to pay him’’);
Hitchcock v. Union & New Haven Trust Co., 134 Conn.
246, 259, 56 A.2d 655 (1947) (contract executed where
plaintiff worker had performed overtime and had not
been paid).
We conclude that because the oral contract was exe-
cuted, § 52-576, not § 52-581, is applicable in this case.
N.J. Sarno terminated its services on July 31, 2010 and
filed a motion for order of payment on March 18, 2015,
less than six years after the completion of its services.
Because we conclude that § 52-576, the six year statute
of limitations, applies in this case, it is clear that N.J.
Sarno’s contract claim is not time barred.
III
The defendant’s final claim is that the court improp-
erly awarded N.J. Sarno $8785 after the parties had
already complied with the separation agreement that
had been incorporated into the dissolution judgment.
Specifically, the defendant, citing to General Statutes
§ 46b-62,9 claims that ‘‘the parties . . . had no notice
that the issue of fees for the [guardian ad litem], pre-
viously addressed [on March 18, 2010 and November
9, 2010], would be an issue to be determined by a subse-
quent judge.’’ In response, N.J. Sarno contends that ‘‘the
defendant improperly characterizes the issue . . . as
one involving court-ordered payment of fees for a guard-
ian ad litem.’’
The following additional facts and procedural history
are necessary to our resolution of this claim. On Novem-
ber 9, 2010, the court, Frankel, J., dissolved the mar-
riage and incorporated the terms of the parties’
separation agreement and parental responsibility plan
for their two minor children into the dissolution judg-
ment.10 At the December 14, 2015 hearing on N.J. Sarno’s
motion for order of payment, Judge Adelman indicated
that he was troubled by the November 9, 2010 judgment,
but made no legal rulings as to its effect.11
With that factual background in mind, we turn to the
standard of review and applicable legal principles that
guide our analysis. ‘‘An appellate court will not disturb
a trial court’s orders in domestic relations cases unless
the court has abused its discretion or it is found that
it could not reasonably conclude as it did, based on the
facts presented. . . . In determining whether a trial
court has abused its broad discretion in domestic rela-
tions matters, we allow every reasonable presumption
in favor of the correctness of its action. . . . Thus,
unless the trial court applied the wrong standard of
law, its decision is accorded great deference because
the trial court is in an advantageous position to assess
the personal factors so significant in domestic relations
cases.’’ (Internal quotation marks omitted.) Antonucci
v. Antonucci, 164 Conn. App. 95, 106, 138 A.3d 297
(2016). ‘‘We have often stated that the power to act
equitably is the keystone to the court’s ability to fashion
relief in the infinite variety of circumstances that arise
out of the dissolution of a marriage. . . . These equita-
ble powers give the court the authority to consider all
the circumstances that may be appropriate for a just and
equitable resolution of the marital dispute.’’ (Internal
quotation marks omitted.) Callahan v. Callahan, 157
Conn. App. 78, 100, 116 A.3d 317, cert. denied, 317 Conn.
913–14, 116 A.3d 812–13 (2015).
In support of his position that the court improperly
awarded N.J. Sarno $8785 after the parties had already
complied with the separation agreement, the defendant
relies on Kavanah v. Kavanah, 142 Conn. App. 775, 66
A.3d 922 (2013). In that case, the court, Prestley, J.,
incorporated into the dissolution judgment the parties’
initial agreement to appoint a guardian ad litem and
share costs equally. Id., 783. The defendant subse-
quently filed a motion to be excused from paying fees
on the basis of financial hardship and Judge Prestley
ordered that ‘‘[the guardian ad litem is] to be paid at
state rates by the state.’’ Id. After trial, the court, Dolan,
J., ordered the parties, sua sponte, to pay the guardian
ad litem an additional sum of $5000. Id., 778, 783. On
appeal, this court held that the court’s order was
improper because there was: (1) ‘‘no motion or request
seeking a different payment arrangement for [the guard-
ian ad litem]’’; (2) ‘‘no opportunity for the parties to
address the issue prior to the court’s ruling’’; and (3)
no evidence of [the guardian ad litem’s] services from
which the court could calculate her fees.’’ Id., 784.
We do not find support for the defendant’s position
in Kavanah, as it is distinguishable from the facts pre-
sented by this case. Here, the defendant had notice
of the issue through N.J. Sarno’s motion for order of
payment. Thereafter, the defendant addressed the issue
through his motion to dismiss and oral argument at the
December 14, 2015 hearing. The trial court decided an
issue that was raised in the pleadings and its calculation
of debt was supported by the record. We therefore
conclude that, under the facts of the present case, the
court acted within its discretion in ordering the parties
to be equally responsible for the debt to N.J. Sarno.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff, Eliana Nassra, now known as Eliana Kouchary, is not a
participating party in this appeal.
2
Although the defendant and N.J. Sarno have briefed standing and contract
formation as separate issues, our determination with respect to standing is
dependent on the existence of a contract, to which N.J. Sarno was a party.
We therefore address both issues in part I of this opinion.
Furthermore, notwithstanding the defendant’s position that no contract
existed, in his reply brief, the defendant further claims that ‘‘[Sarno] materi-
ally breached the terms of the alleged oral contract.’’ We decline to consider
this claim because it was never raised in the defendant’s initial brief. See,
e.g., Hurley v. Heart Physicians, P.C., 298 Conn. 371, 378 n.6, 3 A.3d 892
(2010) (‘‘[W]e consider an argument inadequately briefed when it is deline-
ated only in the reply brief. [W]e generally decline to consider issues that
are inadequately briefed . . . .’’ [Internal quotation marks omitted.]); Com-
missioner v. Youth Challenge of Greater Hartford, Inc., 219 Conn. 657, 659
n.2, 594 A.2d 958 (1991) (‘‘Claims of error by an appellant must be raised
in his original brief . . . so that the issue as framed by him can be fully
responded to by the appellee in its brief, and so that we can have the full
benefit of that written argument. Although the function of the appellant’s
reply brief is to respond to the arguments and authority presented in the
appellee’s brief, that function does not include raising an entirely new claim
of error.’’ [Citation omitted; internal quotation marks omitted.]).
3
We note that Judge Adelman, not Judge Sommer, ruled on the defendant’s
motion for reconsideration and articulation. See Practice Book § 11-12 (c)
(‘‘The motion to reargue shall be considered by the judge who rendered the
decision or order. Such judge shall decide, without a hearing, whether the
motion to reargue should be granted.’’) The defendant, however, has not
raised this issue on appeal.
4
We clarify this point because N.J. Sarno, in its brief, focuses solely on
the trial court’s denial of the defendant’s motion to dismiss. Specifically, it
concludes that ‘‘[the] undisputed evidence, along with the allegations of the
motion for order of payment, viewed in the light most favorable to N.J.
Sarno, support the trial court’s determination that the court had subject
matter jurisdiction over the present matter.’’ Although N.J. Sarno correctly
states that our review of a trial court’s ultimate legal conclusion is plenary,
we disagree that our review is limited to the allegations of N.J. Sarno’s
motion for order of payment and undisputed evidence before the trial court
at the time it decided the defendant’s motion to dismiss.
This court has previously stated that: ‘‘[S]ubject matter jurisdiction can
be raised at any time. . . . Consequently, it may be raised after significant
discovery has occurred, at trial, or even on appeal. The possibility that
the court’s subject matter jurisdiction may be challenged at each stage of
litigation militates against requiring litigants to use the motion to dismiss
at all times to bring the issue to the court’s attention. If the motion to dismiss
was the only procedural vehicle by which subject matter jurisdiction could
be contested, courts may not consider evidence produced through discovery
that is relevant to the determination.’’ (Citation omitted; emphasis omitted.)
Manifold v. Ragaglia, 94 Conn. App. 103, 121, 891 A.2d 106 (2006).
5
The defendant did not seek an articulation of the factual or legal basis
for Judge Adelman’s December 14, 2015 ruling.
6
General Statutes § 46b-66 (a) provides in relevant part: ‘‘In any case
under this chapter where the parties have submitted to the court a final
agreement concerning the custody, care, education, visitation, maintenance
or support of any of their children . . . the court shall . . . determine
whether the agreement of the spouses is fair and equitable under all the
circumstances. If the court finds the agreement fair and equitable, it shall
become part of the court file, and if the agreement is in writing, it shall be
incorporated by reference into the order or decree of the court.’’
7
For example, on November 8, 2010, the plaintiff filed her witness list,
which included ‘‘Mr. Nicholas J. Sarno, N.J. Sarno & Company’’ and ‘‘Mr.
Don Jacques, N.J. Sarno & Company.’’
8
The defendant argues that N.J. Sarno could not have completed its
contractual obligations because it materially breached the contract. Specifi-
cally, the defendant argues that ‘‘[N.J. Sarno] and [Sarno] did not perform
the job that he was hired to do and was required of him.’’ We previously
declined to address the defendant’s claim of material breach because it was
inadequately briefed. See footnote 2 of this opinion.
9
General Statutes § 46b-62 (b) provides in relevant part: ‘‘If, in any proceed-
ing under this chapter . . . the court appoints counsel or a guardian ad
litem for a minor child, the court may not order the father, mother or an
intervening party, individually or in any combination, to pay the reasonable
fees of such counsel or guardian ad litem . . . .’’
10
Article 5.3 of the separation agreement provided: ‘‘The [defendant] shall
contribute the sum of [$16,323] from the cash surrender value of the life
insurance policy referred to in Paragraph [6.7] herein to an interest bearing
escrow account to cover the following expenses for the minor children:
the outstanding fees of the [guardian ad litem], [Israel] and the costs of
supervision. [The defendant’s counsel] shall hold the funds in escrow and
in the event that there is any money left in this account after the termination
of supervised visitation, the parties shall divide the remaining balance in
this account equally. [The defendant’s counsel] shall provide counsel with
a reasonable accounting of expenditures made from this account.’’
11
The following exchanged occurred between the court and counsel for
N.J. Sarno:
‘‘The Court: The issue that I find troubling is that I have a judgment in
November, 2010. I have an order for supervised visitation to be paid by the
parties through certain funds. I have the final order in November directing
the money to be paid. It’s a court-ordered supervision. So if it wasn’t taken
care of in the judgment in November of 2010, what jurisdiction does the
court have now to deal with it?
‘‘[N.J. Sarno’s Counsel]: [Sarno’s] company was not the court-ordered
supervisor when . . . the company was providing services. That was done
through the [guardian ad litem] and the custody evaluator as part of an
attempt to get [the defendant] seeing his children again. . . .
‘‘The custody supervision that was court-ordered and dealt with in that
payment order was for that JBM Investigations Company. It had nothing to
do with the services that [Sarno] provided. . . .
‘‘The Court: Well, you know, I am not worried about that. I am worried
about having a final judgment that dealt with the issue.
‘‘[N.J. Sarno’s Counsel]: It deals with the issue of supervised visitation
. . . going forward with . . . JBM Investigations. The judgment is silent as
to in previous nonspecifically court-ordered . . . supervision services that
[N.J. Sarno] provided to [the defendant]. . . .
‘‘The Court: No. It talks about . . . the outstanding fees of the guardian
ad litem, [Israel] and the cost of supervision. . . .
‘‘[It] does not say who. It just says the cost of supervision shall be paid.
‘‘[N.J. Sarno’s Counsel]: That goes from the [July, 2010] to the [November,
2010] period in which JBM Investigations was providing supervised visita-
tion. . . .
‘‘[The] separation agreement which became an order of the court is silent
as to [N.J. Sarno’s] services.’’