Tonghini v. Tonghini ( 2014 )

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BETTINA HEGEL TONGHINI v. ERIC
ANTHONY TONGHINI
(AC 35614)
DiPentima, C. J., and Beach and Prescott, Js.
Argued May 29—officially released August 12, 2014
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Munro, J. [dissolution judgment];
Emons, J. [motion to dismiss].)
Eric Anthony Tonghini, self-represented, the appel-
lant (defendant).
Daniel Green, with whom, on the brief, were Richard
G. Kent and Erin E. Adams, for the appellee (plaintiff).
Opinion
PRESCOTT, J. In this high conflict, postdissolution
of marriage proceeding, the principal issue on appeal
is whether a judge of the Superior Court lacks subject
matter jurisdiction over a motion to modify child and
spousal support in circumstances in which General Stat-
utes § 46b-86 (c) directs that the motion to modify shall
be filed with the Family Support Magistrate Division
of the Superior Court. The defendant, Eric Anthony
Tonghini, appeals from the judgment of the trial court,
Emons, J., granting a motion to dismiss for lack of
subject matter jurisdiction his motion to modify child
and spousal support payable to the plaintiff, Bettina
Hegel Tonghini. Because we conclude that the defen-
dant’s brief and the record are inadequate to review the
defendant’s claim, we decline to decide this question.
The record contains the following relevant facts and
procedural history. This marital dissolution action was
initiated by the plaintiff on March 23, 2006. The plaintiff
and the defendant thereafter agreed to certain pendente
lite orders, including that the defendant pay child and
spousal support for the benefit of the plaintiff and their
three children. When the defendant failed to keep cur-
rent with his support obligations, the plaintiff sought the
assistance of Support Enforcement Services to assist in
collecting any arrearages. Subsequent support obliga-
tions were collected through an income withholding
garnishment, except during periods when the defendant
was unemployed.
Following a trial, on March 20, 2008, the court,
Munro, J., dissolved the parties’ marriage and, among
other things, ordered the defendant to pay unallocated
child support and spousal support to the plaintiff ‘‘in
the amount of $5700 per month until the death of either
party, the plaintiff’s remarriage . . . civil union [or]
cohabitation pursuant to the statute or April 1, 2018.’’
The court also ordered the defendant to pay the arrear-
age for pendente lite support ‘‘at the rate already
arranged through Support Enforcement Services.’’
On November 6, 2008, the defendant filed a motion
to modify child and spousal support with a judge of
the Superior Court, alleging a substantial change in his
financial circumstances due to his loss of employment.
A hearing on the defendant’s motion was marked off
on at least four occasions. While the defendant’s motion
to modify was pending, the plaintiff, on January 29,
2009, filed a motion for contempt against the defendant
with the Family Support Magistrate Division of the
Superior Court on the basis of the defendant’s failure
to pay child support and alimony.
On March 30, 2009, the court, Hon. Dennis F. Harri-
gan, judge trial referee, referred the defendant’s motion
to modify to the Family Support Magistrate Division
for adjudication. On May 7, and May 8, 2009, Magistrate
William E. Strada, Jr., conducted a hearing on the plain-
tiff’s motion for contempt, but refused to consider the
defendant’s motion to modify support because the
defendant had a substantial arrearage for past due
support.
At the conclusion of the hearing, Magistrate Strada
found that the defendant had an arrearage of $20,082
in past due child and spousal support. The magistrate
also indicated that he would not hold any hearing on
the defendant’s motion to modify until and unless the
defendant made a lump sum payment of $7500 toward
the arrearage.
On May 21, 2009, Magistrate Strada found the defen-
dant in contempt for failing to make a payment of $7500
toward the arrearage and ordered that the defendant
be incarcerated. The plaintiff, however, indicated that
she was willing to accept an immediate, partial payment
of $2100 toward the arrearage and requested that the
defendant not be incarcerated so that the defendant
could continue to look for new employment. The defen-
dant then made the partial payment of $2100.
On May 19, 2009, pursuant to General Statutes § 46b-
231 (n), the defendant appealed from Magistrate Stra-
da’s May 8, 2009 decision declining to hold a hearing
on his motion to modify support. The appeal was heard
by a judge of the Superior Court, Shay, J., on August
18, 2009. In an oral ruling, Judge Shay reversed the
decision of the magistrate and ordered that a hearing
be held by a magistrate on the defendant’s motion to
modify.
A hearing on the defendant’s motion to modify sup-
port, however, was not held until March 4, 2010.1 On
March 4, 2010, following the hearing, Magistrate Strada
granted in part the defendant’s motion to modify sup-
port. Specifically, the magistrate decreased the amount
of child support payable to the plaintiff, thereby reduc-
ing the defendant’s per month total support obligation
from $5700 to $4322.2 During the hearing, Magistrate
Strada appears3 to have indicated that he was declining
to hear the alimony portion of the defendant’s motion
to modify and that the defendant would ‘‘have to go
back to family court if you want to address that.’’
Although the defendant appealed from the March 4,
2010 orders issued by Magistrate Strada, that appeal
later was dismissed for failure to prosecute it with due
diligence. Thereafter, the defendant found a new job,
and the plaintiff and the defendant agreed to modify
the defendant’s support obligation.
On June 1, 2012, after having become unemployed
for a second time, the defendant filed a new motion to
modify support. The motion, however, was not filed
by the defendant with the Family Support Magistrate
Division, but instead was filed on the regular docket
of the Superior Court. The plaintiff, on January 16, 2013,
moved to dismiss the defendant’s motion to modify
claiming that the regular division of the Superior Court
lacked subject matter jurisdiction over the motion. Spe-
cifically, the plaintiff contended that because the plain-
tiff had previously sought the assistance of Support
Enforcement Services, §§ 46b-231 (m) (2) (A)4 and 46b-
86 (c)5 required that the motion to modify support be
filed with the Family Support Magistrate Division of
the Superior Court.
At the hearing on the motion to dismiss on March
19, 2013, the court engaged in a discussion with the
defendant, who was self-represented at the time, regard-
ing his failure to file a timely opposition to the plaintiff’s
motion to dismiss. The defendant conceded that his
brief in opposition to the motion to dismiss was filed
approximately two weeks late. The court indicated that
it had not reviewed the defendant’s brief and also dis-
cussed with the parties whether the defendant had an
existing arrearage for child or spousal support. At the
conclusion of the hearing, the court stated: ‘‘Okay. I’m
granting the motion to dismiss. This case is going back
to support enforcement.’’ In so doing, the court did not
indicate whether it was granting the motion because it
believed that it lacked subject matter jurisdiction over
the defendant’s motion to modify, or that it was treating
the motion as unopposed because the defendant had
not filed a timely opposition to the motion to dismiss.
The court also did not explain when it stated that ‘‘[t]his
case is going back to support enforcement’’ whether
its intent was to transfer the motion to modify support
to a family support magistrate or to simply dismiss
the motion for lack of subject matter jurisdiction or
otherwise, and obligate the defendant to file a new
motion in the Family Support Magistrate Division of
the Superior Court.
On appeal, the defendant challenges the court’s deci-
sion dismissing his motion to modify support. In his
brief, the defendant does not set forth any analysis of
whether §§ 46b-213 (m) and 46b-86 (c) deprived the
court of subject matter jurisdiction over his motion.
Instead, he simply contends that the court should not
have dismissed his motion because of a lengthy history
of alleged injustices he received while litigating matters
before the family support magistrate. We decline to
review the court’s decision dismissing his motion
because the defendant has failed to provide us with an
adequate record for review and to comply with several
rules of appellate practice, thereby further frustrating
our review.
First, the defendant failed to seek an articulation by
the court of the factual and legal basis of its decision.
See Practice Book § 66-5. ‘‘[T]he appellant bears the
burden of providing an appellate court with an adequate
record for review. . . . It is, therefore, the responsibil-
ity of the appellant to move for an articulation or rectifi-
cation of the record where the trial court has failed to
state the basis of [a] decision . . . [or] to clarify the
legal basis of a ruling.’’ (Internal quotation marks omit-
ted.) CC Cromwell, Ltd. Partnership v. Adames, 124
Conn. App. 191, 194, 3 A.3d 1041 (2010). ‘‘[I]t is incum-
bent upon the appellant to take the necessary steps to
sustain [her] burden of providing an adequate record
for appellate review. . . . [A]n appellate tribunal can-
not render a decision without first fully understanding
the disposition being appealed. . . . Our role is not to
guess at possibilities, but to review claims based on a
complete factual record developed by a trial court.’’
(Internal quotation marks omitted.) Chester v. Manis,
150 Conn. App. 57, 61, 89 A.3d 1034 (2014).
This defendant’s failure to seek articulation is particu-
larly significant in this case because the court’s oral
statement that it was granting the motion to dismiss is
unaccompanied by any findings to support the ruling
and does not state any legal basis upon which the ruling
rests. Indeed, as discussed previously, it is unclear
whether the court granted the motion as unopposed or
whether it was the court’s intent to transfer the motion
to a family support magistrate rather than to grant the
motion to dismiss outright. Although this court will not
decline to review a claim on appeal solely on the basis
of a party’s failure to seek articulation, if the failure to
seek an articulation is accompanied by other procedural
irregularities that frustrate meaningful review, as are
present here, the court may nonetheless decline to
review the claim. See Gordon v. Gordon, 148 Conn.
App. 59, 68 n.10, 84 A.3d 923 (2014); see also Chester
v. Manis, supra, 150 Conn. App. 63 n.5.
Second, the court in the present case did not file a
written memorandum of decision setting forth its rea-
soning in granting the plaintiff’s motion to dismiss, nor
did it prepare and sign a transcript of its oral ruling. In
these circumstances, the defendant was obligated but
failed to file a notice pursuant to Practice Book § 64-1
(b) with the appellate clerk in order to obtain the court’s
compliance with the rule.6
Third, the defendant failed to comply with Practice
Book § 63-8 (e), which requires the appellant, either
before or simultaneously with the filing of the appel-
lant’s brief, to file one unmarked written copy of the
transcript, including a copy of the court reporter’s certi-
fication page. Although the court reporter did file an
electronic version of the transcript from the March 19,
2013 hearing, no certified paper copy of the transcript
has ever been filed by the defendant.
Fourth, the defendant’s brief is inadequate for ade-
quate review of his claim on appeal. ‘‘It is well settled
that [w]e are not required to review claims that are
inadequately briefed. . . . We consistently have held
that [a]nalysis, rather than mere abstract assertion, is
required in order to avoid abandoning an issue by failure
to brief the issue properly. . . . [F]or this court judi-
ciously and efficiently to consider claims of error raised
on appeal . . . the parties must clearly and fully set
forth their arguments in their briefs. We do not reverse
the judgment of a trial court on the basis of challenges
to its rulings that have not been adequately briefed. . . .
[A]ssignments of error which are merely mentioned but
not briefed beyond a statement of the claim will be
deemed abandoned and will not be reviewed by this
court.’’ (Internal quotation marks omitted.) Keating v.
Ferrandino, 125 Conn. App. 601, 603–604, 10 A.3d 59(2010).
In this case, the argument portion of the defendant’s
brief is only one paragraph in length and fails to cite
or to analyze any of the statutes that may bear upon
whether the trial court lacked subject matter jurisdic-
tion over the motion to modify. For example, the defen-
dant fails to discuss any of the statutes cited by the
plaintiff to the trial court in support of the motion to
dismiss. In addition, neither party cites or analyzes Gen-
eral Statutes § 46b-212r, which is found in our Uniform
Interstate Family Support Act, General Statutes §§ 46b-
212 to 46b-213w, and provides in relevant part: ‘‘If a
petition or comparable pleading is received by an inap-
propriate tribunal of this state, the tribunal shall
promptly forward the pleading and accompanying docu-
ments to an appropriate tribunal in this state or another
state and notify the petitioner where and when the
pleading was sent.’’7 Neither party cites to this court’s
decision in Pritchard v. Pritchard, 103 Conn. App. 276,
928 A.2d 566 (2007), which discusses at some length
the jurisdictional relationship between the regular
docket of the Superior Court and the Family Support
Magistrate Division of the Superior Court. This court
declines to enter into the statutory thicket of the family
support magistrate laws without any meaningful assis-
tance from the parties.
Finally, the fact that the defendant is self-represented
cannot excuse or cure these obvious inadequacies in the
record. ‘‘[Although] . . . [i]t is the established policy of
the Connecticut courts to be solicitous of [self-repre-
sented] litigants and when it does not interfere with the
rights of other parties to construe the rules of practice
liberally in favor of the [self-represented] party . . .
we are also aware that [a]lthough we allow [self-repre-
sented] litigants some latitude, the right of self-repre-
sentation provides no attendant license not to comply
with relevant rules of procedural and substantive law.’’
(Internal quotation marks omitted.) In re Nicholas B.,
135 Conn. App. 381, 384, 41 A.3d 1054 (2012). Accord-
ingly, we decline to review the defendant’s claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The record reflects that the hearing was continued on several occasions
between June 4, 2009, and March 4, 2010.
2
Upon dissolution, the court had awarded the plaintiff unallocated sup-
port. Presumably, Magistrate Strada applied an allocation formula to differ-
entiate how much of the support should be designated as child support.
In so doing, Magistrate Strada’s order states that the defendant’s alimony
obligation of $3522 per month ‘‘remains in full force and effect.’’
3
It is difficult for this court to ascertain precisely what occurred during
the hearing because the defendant did not file with this court, pursuant to
Practice Book § 63-8, the transcript of the March 4, 2010 hearing. Instead,
he simply included within his appendix to his brief a single page from what
purports to be the transcript of the March 4, 2010 hearing. Both the plaintiff
and the defendant, however, agree in their respective briefs on appeal that
Magistrate Strada refused at this hearing to consider the alimony portion
of the defendant’s motion to modify support.
4
General Statutes § 46b-231 (m) (2) (A) provides in relevant part: ‘‘Family
support magistrates shall hear and determine matters involving child and
spousal support in IV-D support cases . . . and shall hear and determine
all motions for modifications of child and spousal support in such cases.’’
On appeal, the plaintiff also relies on § 46b-231 (m) (4), which provides
in relevant part: ‘‘Motions for modification of existing child and spousal
support orders entered by the Superior Court in IV-D support cases including
motions to modify existing child and spousal support orders entered in
[dissolution] actions . . . shall be brought in the Family Support Magistrate
Division and decided by a family support magistrate. . . .’’
5
General Statutes § 46b-86 (c) provides in relevant part: ‘‘When one of
the parties, or a child of the parties . . . has applied for child support
enforcement services under Title IV-D of the Social Security Act as provided
in section 17b-179, such motion to modify shall be filed with the Family
Support Magistrate Division for determination in accordance with subsec-
tion (m) of section 46b-231.’’
6
‘‘On occasion, we have overlooked an appellant’s failure to ensure that
the trial court sign a transcript of an oral decision provided that the appellant
had filed an unsigned transcript and we [were] able to identify readily the
court’s decision, encompassing its findings . . . .’’ (Emphasis in original;
internal quotation marks omitted.) Gordon v. Gordon, supra, 148 Conn. App.
67. In this case, however, the appellant never filed a certified paper copy
of the transcript, and we are unable to readily identify the court’s decision
encompassing its findings.
7
See also General Statutes § 46b-212b, which provides in relevant part:
‘‘The Superior Court and the Family Support Magistrate Division of the
Superior Court are the tribunals of this state. . . .’’