Shear v. Shear

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DANIEL SHEAR v. YUPAPORN SHEAR
(AC 40830)
DiPentima, C. J., and Elgo and Sullivan, Js.
Syllabus
The plaintiff, whose marriage to the defendant previously had been dis-
solved, appealed to this court from the judgment of the trial court
affirming in part an order of a family support magistrate with respect
to his motion for modification of his child support obligation and
remanding the case for further proceedings. Held that the plaintiff’s
appeal from the order of the family support magistrate was not taken
from a final judgment, which is a threshold requirement to appeal the
order to the Superior Court, and, therefore, the trial court should have
dismissed the appeal for lack of subject matter jurisdiction, rather than
resolving it on the merits; the family support magistrate did not fully
dispose of the plaintiff’s motion for modification, as he addressed only
the first claim set forth in the motion and remanded the second claim
pertaining to a certain stipulation between the parties to the family
support magistrate for further proceedings, and, as evinced by certain
additional proceedings before another family support magistrate and a
resulting appeal to the Superior Court, the magistrate’s order neither
terminated a separate and distinct proceeding nor concluded the rights
of the parties so that further proceedings could not affect them.
Argued May 16—officially released November 19, 2019
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Hartford, where the court, Carbonneau, J., ren-
dered judgment dissolving the marriage and granting
certain other relief in accordance with the parties’ sepa-
ration agreement; thereafter, the family support magis-
trate, Michael L. Ferguson, approved a certain stipula-
tion of the parties; subsequently, the family support
magistrate, Jed N. Schulman, issued a certain order
related to a motion for modification of child support
filed by the plaintiff; thereafter, the plaintiff appealed to
the court, Hon. Gerard I. Adelman, judge trial referee;
judgment affirming in part the order of the family sup-
port magistrate and remanding the matter for further
proceedings, from which the plaintiff appealed to this
court. Reversed; judgment directed.
Tad J. Bistor, for the appellant (plaintiff).
Julé A. Crawford, for the appellee (defendant).
Opinion
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 postdisso-
lution 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 Supe-
rior 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 Octo-
ber 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 dissolv-
ing the marriage. The court incorporated the terms of
the parties’ written separation agreement into the judg-
ment. 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 sup-
port 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 stipula-
tion 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 retro-
active lump sum dependent benefit from the Social
Security Administration and the amount of these bene-
fits 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 [Admin-
istration] for the benefit of the child is a gratuity essen-
tially, 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 cli-
ent, 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 hap-
pened and everything happens to be paid off, then won-
derful . . . .’’ Aside from this brief comment, Magis-
trate Schulman did not conclusively address the
stipulation issue.
After further discussion of the issues and argument
from the parties, Magistrate Schulman issued his find-
ings. 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 defen-
dant as representative payee. Magistrate Schulman fur-
ther determined that any excess from the Social Secu-
rity 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 reconsider-
ation of the March 9, 2017 order. Specifically, the plain-
tiff 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]tipula-
tion, 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 reconsider-
ation on April 10, 2017.
On April 24, 2017, the plaintiff filed an appeal from
Magistrate Schulman’s March 9, 2017 order to the Supe-
rior 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 defen-
dant. On July 10, 2017, the court, Hon. Gerard I. Adel-
man, judge trial referee, held a hearing on the plain-
tiff’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, 2017 stipulation, support enforcement
services disbursed the money received from the Social
Security Administration before the parties’ court
appearance, and this resulted in an erroneous payment
to the defendant in the amount of $1348.
On July 20, 2017, Judge Adelman issued a memoran-
dum of decision. The court concluded that Magistrate
Schulman had not abused his discretion with respect
to the first issue raised by the plaintiff. With respect to
the stipulation issue, the court initially noted that the
parties had not presented any evidence. It then stated:
‘‘The orders entered at the end of that heading do not
reference the stipulation issue directly. As the stipula-
tion was accepted by the [family support magistrate]
and made [an] order, the unresolved issues involving
said order must be addressed properly in a hearing so
that all sides might have an opportunity to be heard.’’
The court affirmed Magistrate Schulman’s March 9,
2017 order ‘‘regarding the plaintiff’s motion [for modifi-
cation] and as to the denial of the plaintiff’s claims for
a refund of any overpayment of funds paid prior to
January 20, 2017 . . . .’’ As to the second issue, the
court ordered that ‘‘[t]he case [be] remanded to [Magis-
trate Schulman] only for a determination of the plain-
tiff’s claim for a reimbursement of funds pursuant to
the stipulation of the parties and the order of the court
dated January 20, 2017.’’ Following the denial of the
plaintiff’s motion to reargue, this appeal followed.
On appeal, the plaintiff claims that Judge Adelman
applied an improper standard of review in considering
the plaintiff’s appeal from Magistrate Schulman’s order
and that Magistrate Shulman erred in not awarding the
plaintiff a retroactive credit and a refund of $6420.95.
On July 31, 2019, following oral argument, we ordered
the parties to file simultaneous supplemental briefs
addressing the following questions: ‘‘1. Whether the
March 9, 2017 decision of the family support magistrate
constituted a final judgment for purposes of appeal to
the Superior Court where the family support magistrate
had failed to consider one of the plaintiff’s claims? 2.
If the family support magistrate decision appealed to
the Superior Court was not a final judgment, should
the Superior Court have dismissed the plaintiff’s
appeal?’’ The parties filed their supplemental briefs on
September 16, 2019.
We begin with the threshold question of whether the
appeal to the Superior Court of Magistrate Shulman’s
order was taken from a final judgment.6 Our Supreme
Court has stated that ‘‘[t]he lack of a final judgment
implicates the subject matter jurisdiction of an appel-
late court to hear an appeal. A determination regarding
. . . subject matter jurisdiction is a question of law
. . . [and, therefore] our review is plenary. . . . The
jurisdiction of the appellate courts is restricted to
appeals from judgments that are final. . . . The policy
concerns underlying the final judgment rule are to dis-
courage piecemeal appeals and to facilitate the speedy
and orderly disposition of cases at the trial court level.
. . . The appellate courts have a duty to dismiss, even
on [their] own initiative, any appeal that [they lack]
jurisdiction to hear. . . . In some instances, however,
it is unclear whether an order is an appealable final
judgment. In the gray area between judgments which
are undoubtedly final and others that are clearly inter-
locutory . . . [our Supreme Court] has adopted the fol-
lowing test, applicable to both criminal and civil pro-
ceedings: An otherwise interlocutory order is
appealable 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. State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566
(1983).’’ (Citations omitted; internal quotation marks
omitted.) Khan v. Hillyer, 306 Conn. 205, 209–10, 49
A.3d 996 (2012); see also Johnson v. Clark, 113 Conn.
App. 611, 616–18, 967 A.2d 1222 (2009).
The final judgment requirement applies to appeals
from the decision of a family support magistrate to
the Superior Court. For example, in Johnson v. Clark,
supra, 113 Conn. App. 613, the parties were the unmar-
ried parents of two children. A family support magis-
trate had ordered the defendant father to pay child
support. Id. As a result of his noncompliance over a
period of several years, the plaintiff mother filed numer-
ous contempt motions. Id. The total arrearage
approached $18,000. Id. On May 9, 2007, the family
support magistrate found the father to be in contempt
and ordered a purge amount of $900, and that he make
weekly payments. Id., 613–14. The family support magis-
trate further ordered the father to return to court on
June 20, 2007, if he satisfied the purge amount, as well
as on May 16, 2007. Id., 614. At the May 16, 2007 proceed-
ing, the father requested that he be excused from
returning to court on June 20, 2007, because he had
paid the purge amount. Id. The family support magis-
trate denied this request and ‘‘ordered the [father] to
return on June 20, 2007, to review [his] compliance with
his weekly payments, with the proviso that the [father]
could be excused by support enforcement services if
he was in compliance.’’ Id., 615.
The father appealed from the denial of his request
to not be required to appear in court on June 20, 2007.
Id. The Superior Court resolved the appeal on its merits.
Id., 615–16. This court, applying the Curcio test, subse-
quently determined that the family support magistrate’s
order was interlocutory in nature. Id., 618–21. We fur-
ther concluded that the family support magistrate’s rul-
ing was not an appealable final judgment, and, there-
fore, the Superior Court should have dismissed the
appeal for lack of subject matter jurisdiction. Id., 621.
In Harvey v. Wilcox, 67 Conn. App. 1, 2, 786 A.2d
533 (2001), the issue before the Appellate Court was
whether the Superior Court properly had dismissed the
appeal of the defendant father from an order of a family
support magistrate due to the lack of a final judgment.
In that case, a Maine court, after rendering a default
judgment finding him to be the father of the plaintiff
mother’s minor child, ordered the father to pay retroac-
tive child support in the amount of $181 per week. Id.
The father claimed that he never had received notice
of the mother’s claim that he was the child’s father. Id.
The mother registered the Maine court order with the
state of Connecticut pursuant to the Uniform Interstate
Family Support Act, General Statutes § 46b-212 et seq.
Harvey v. Wilcox, supra, 67 Conn. App. 2–3.
The family support magistrate ordered the father to
pay the child support of $181 per week in accordance
with the Maine order, rejecting his attempt to collater-
ally attack its validity by way of a defense of nonpater-
nity. Id., 3. The family support magistrate stayed the
child support order to afford the father the opportunity
to open the Maine paternity judgment. Id., 4. The father,
however, declined to do so and, instead, appealed to
the Superior Court, which dismissed the appeal. Id. We
affirmed the judgment of the Superior Court, noting
that the ‘‘stay order’’ of the family support magistrate
did not constitute a final judgment. Id., 7.
Johnson and Harvey clearly establish that a final
judgment is a threshold requirement to appeal a family
support magistrate’s order to the Superior Court. In the
present case, Magistrate Schulman did not address one
of the two claims set forth in the plaintiff’s motion for
modification at the March 9, 2017 hearing, or in denying
the plaintiff’s March 23, 2107 motion for reconsidera-
tion. Specifically, Magistrate Shulman did not render a
decision with respect to the plaintiff’s second claim
pertaining to the parties’ January 20, 2017 stipulation.
This court has concluded, albeit in a different proce-
dural context, that there is a lack of a final judgment
when a trial court fails to resolve fully the matter placed
before it. See, e.g., Morera v. Thurber, 162 Conn. App.
261, 131 A.3d 1155 (2016); McGuinness v. McGuinness,
155 Conn. App. 273, 108 A.3d 1181 (2015); Bucy v. Bucy,
19 Conn. App. 5, 560 A.2d 483 (1989).
We also conclude that neither prong of the Curcio
test has been satisfied under facts and circumstances of
the present case. Following Judge Adelman’s judgment
affirming in part Magistrate Schulman’s order and
remanding the case for further proceedings as to the
stipulation issue, this case traversed two divergent
paths. The first led the parties to the present appeal.
The second resulted in a November 8, 2017 hearing
before the family support magistrate, Gladys I. Nieves,
regarding the stipulation issue. At that proceeding, Mag-
istrate Nieves noted that ‘‘[t]his case is on remand only
for the determination of the plaintiff’s claim for a reim-
bursement of funds pursuant to the stipulation of the
parties and the order of the court dated January 20,
2017.’’ After summarizing the relevant history of the
case, Magistrate Nieves concluded that the plaintiff was
entitled to $407.70 for money disbursed to the defendant
on or about January 23, 2017. After unsuccessfully mov-
ing for reconsideration, the plaintiff appealed Magis-
trate Nieves’ order to the Superior Court.
On June 11, 2018, the court, Miller, J., sustained the
appeal but did not focus on the stipulation issue, which
was the sole matter decided by Magistrate Nieves.
Instead, Judge Miller addressed the issue of whether
the defendant had been overpaid as a result of the
social security disability benefits.7 In her June 29, 2018
‘‘motion to reargue and/or for reconsideration,’’ the
defendant succinctly stated that Judge Miller’s remand
order concerned ‘‘the very issue that was denied by
Magistrate Schulman, which denial was upheld by
Judge Adelman, and is now on appeal to the Appellate
Court.’’ The defendant’s motion was denied on July
6, 2018.8
Unquestionably, the policy objectives of the final
judgment rule have not been achieved in this matter.
As evidenced by the additional proceedings before Mag-
istrate Nieves and Judge Miller, Magistrate Schulman’s
order neither terminated a separate and distinct pro-
ceeding nor concluded the rights of the parties so that
further proceedings could not affect them. Accordingly,
we conclude that Magistrate Schulman’s order did not
constitute a final judgment appealable to the Supe-
rior Court.
The judgement is reversed and the case is remanded
with direction to dismiss the appeal for lack of subject
matter jurisdiction.
In this opinion the other judges concurred.
1
‘‘The Connecticut Family Support Magistrate’s Act . . . General Statutes
§§ 46b-231 through 46b-23[6], was first enacted in 1986 in response to federal
legislation providing federal funds for states that complied with federal
requirements for the expeditious enforcement of child support orders in
cases arising under Title IV-D. . . . In compliance with the processes man-
dated by the federal act, the legislature, by the passage of § 46b-231 (d)
created the family support magistrate division of the superior court for
the purpose of the impartial administration of child and spousal support.’’
(Citations omitted; internal quotation marks omitted.) O’Toole v. Hernandez,
163 Conn. App. 565, 572–73, 137 A.3d 52, cert. denied, 320 Conn. 934, 134
A.3d 623 (2016).
2
The judgment of dissolution restored the defendant’s name to Yupa-
porn Noipeng.
3
‘‘According to [General Statutes] § 46b-86 (a), ‘[n]o order for periodic
payment of permanent alimony or support may be subject to retroactive
modification, except that the court may order modification with respect to
any period during which there is a pending motion for modification of an
alimony or support order from the date of service of notice of such pending
motion upon the opposing party . . . .’ ’’ (Emphasis omitted.) Lesueur v.
Lesueur, 172 Conn. App. 767, 780, 162 A.3d 32 (2017).
4
On February 3, 2017, the family support magistrate, Katherine Y. Hutch-
inson, continued the case until March 9, 2017, to provide the parties time
‘‘to substantiate their claims and to disclose information.’’ The order also
noted that ‘‘[t]he stipulation that was approved . . . on [January 20, 2017]
remains in effect.’’
5
General Statutes § 46b-231 (n) (1) provides that ‘‘[a] person who is
aggrieved by a final decision of a family support magistrate is entitled to
judicial review by way of appeal under this section.’’ See also Ragin v. Lee,
78 Conn. App. 848, 856, 829 A.2d 93 (2003). Our legislature has defined the
role of the Superior Court in hearing an appeal from a family support
magistrate: ‘‘The Superior Court may affirm the decision of the family support
magistrate or remand the case for further proceedings. The Superior Court
may reverse or modify the decision if substantial rights of the appellant
have been prejudiced because the decision of the family support magistrate
is: (A) In violation of constitutional or statutory provisions; (B) in excess
of the statutory authority of the family support magistrate; (C) made upon
unlawful procedure; (D) affected by other error of law; (E) clearly erroneous
in view of the reliable, probative, and substantial evidence on the whole
record; or (F) arbitrary or capricious or characterized by abuse of discretion
or clearly unwarranted exercise of discretion.’’ General Statutes § 46b-231
(n) (7).
6
We emphasize that this issue implicates the subject matter jurisdiction
of the Superior Court, not the subject matter of this court. See Johnson v.
Clark, 113 Conn. App. 611, 616 n.9, 967 A.2d 1222 (2009). This court has
jurisdiction to determine whether the Superior Court has jurisdiction. Id.
7
Judge Miller’s June 11, 2018 decision provides in relevant part: ‘‘The
appeal is sustained. While there were legitimate concerns about the scope
of the [family support magistrate’s] responsibilities on remand, the scope
of the remand did require addressing the issues which have arisen due to
the plaintiff’s receipt of social security disability (SSD) benefits.
‘‘When a party who has child support obligations is awarded SSD benefits,
this will generally have a significant impact on the support obligations. . . .
On this appeal, the plaintiff has established that he has, at a minimum,
colorable claims that he can offset his SSD benefits against his child support
arrearage and against his current support obligations. The plaintiff has
argued that such calculations may result in a finding that he has overpaid
the defendant, which claim also needs to be addressed.
‘‘The decision of the family support magistrate is hereby reversed and
the case is remanded to her for further proceedings consistent with this
decision.’’
8
Judge Olear, citing Practice Book § 11-12, denied the motion to reargue
solely on the basis that Judge Miller had retired from the bench on June
11, 2018.