Joanne Emanuel v. Scott Emanuel (2009)

MEMORANDUM OF DECISION

Before the court are certain motions and objections filed subsequent to the court's memorandum of decision dated November 13, 2009.

1. On November 24, 2009, the plaintiff filed a motion to open and modify/correct judgment (# 176).   The defendant filed an objection to this motion on December 2, 2009 (# 178).   On December 7, 2009, the plaintiff filed a reply to that objection.

2. On November 25, 2009, the defendant filed a motion for clarification (# 177).

3. On December 2, 2009, the defendant filed a motion to reargue post-judgment (# 179), which, on the same day was followed up by an identical motion except the clear indication that it is a § 11-11 motion (# 180).

On December 2, 2009, the court issued an order that stated reargument is granted, setting the matter down for argument on December 8, 2009.

At argument, the parties clarified that they both intended their motions to be considered as motions for reargument and clarification of certain issues.   The court also clarified that it intended to preserve both of the parties' rights of appeal and that is why the order granted the motion for reargument because it was the only one of the motions filed that made clear that it is a § 11-11 motion.   The parties both agreed with that position.

The court first considers the plaintiff's claims as argued regarding her motion # 116 regarding the motion to open and modify/correct and the objections thereto.¹

1. On p. 7 of the memorandum of decision the court stated the plaintiff “makes no claim” to the defendant's workers' compensation claim.   The court agrees that this should be corrected, as it is a scrivener's error.   Indeed the plaintiff did in her claims for relief make such claim.

Therefore the motion to correct in regard to this matter is granted.

The word “no” is ordered deleted and the sentence now reads:

“In any case, it is an asset to which the plaintiff makes claim.”

2. On p. 19 of the court's decision, the court ordered, “The parties shall make the minor children equal beneficiaries of all life insurance available to them through their employment, or, in the defendant's circumstance, union, to a maximum of $200.00 per child so long as said insurance is at a reasonable premium cost, not to exceed $700.00 premium per year.”

The plaintiff argues that the $200.00 should be $200,000 and that the court should indicate that if the insurance is not in effect at the time of death of a party it should be a charge against the estate of that party.   The defendant also addressed this issue through his motions(s) to reargue (# 179 and 180).   The defendant argues that, besides the scrivener's error, the insurance provision is inappropriate inasmuch as the defendant is not insurable because of his condition and therefore he should only have a duty to try to obtain insurance, not an absolute order to obtain it.

The order claims scrivener's errors and should be made clearer to more clearly express the intent of the original order.

Therefore, the motion to correct is granted in regard to this matter.

The sentence recited above is ordered removed and replaced by the following:

The parties shall make the minor children equal beneficiaries of all life insurance available to them through their employment and through the defendant's union to a maximum of $200,000.00 per child.   If either party does not have sufficient insurance to meet this order, they shall each attempt to gain such insurance, which may be term, so long as the total premium cost for that parent does not exceed $700.00 per year, which the court deems affordable for both parents.   If the party is insurable but cannot procure sufficient insurance to meet this order at the cost cap provided herein then that parent shall procure such insurance as that cap will allow for.   Inasmuch as defendant has argued he is uninsurable, he must attempt to obtain term life insurance at least twice yearly.   The parties shall provide each other annual proof of insurance or attempts at obtaining insurance by December 31 of each year.   The court declines to order a charge against the estate of a deceased parent as sought by the plaintiff.

Further, pursuant to the parties' oral agreement at reargument it is ordered that these life insurance provisions shall continue until the 23rd birthday of each child or their respective attainment of a bachelor's degree, whichever shall first occur.

3. The plaintiff seeks a clarification of the language of the order at p.16, number 7. The order as written reads:  “The defendant shall pay child support to the plaintiff by immediate wage withholding in the amount of $150.00 per week.   He shall pay it directly until an income withholding order is effective.”

The plaintiff seeks an order indicating that the wage withholding language be expanded to include an order for immediate workers' compensation benefit execution in recognition of the defendant's current status as a recipient of temporary total workers' compensation benefits.   The defendant's objection did not address this portion of the plaintiff's motion to correct.

Therefore, the motion to correct is granted in regard to this matter.

The sentence recited above is ordered removed and replaced by the following:

The defendant shall pay child support to the plaintiff by immediate workers' compensation benefit execution in the amount of $150.00 per week.   He shall pay it directly until such withholding order is effective.   At such time as the defendant no longer receives benefits subject to execution he shall pay the child support directly.   In the event that he procures employment the defendant shall then pay said child support to the plaintiff by immediate wage withholding.

4. The plaintiff seeks an order of the court “pertaining to the social security benefits received by the Defendant for the minor children to include a directive that the Defendant shall make arrangements to have the full amount of the children's social security benefit paid directly to the Plaintiff.”

This motion is directed to the memorandum of decision provisions that include the $104 per week Social Security award as a part of the whole child support award $54 per week, therefore leading to the order discussed in number 2 above;  the plaintiff notes that the judgment is silent as to the delivery of the social security funds.   At argument, the plaintiff argued for direct deposit into an account of the plaintiff's.

The defendant argues that the Social Security checks should continue to be deposited into the children's ING accounts as they were pendente lite.   The defendant finds no reason to disrupt the deposit of these funds into an account earmarked for the children solely.

The court's computation of the child support due pursuant the Child Support Guideline, at page 8, make clear that the overall child support order includes the Social Security award.   If the court were to segregate the award so that it is not available for their ongoing day to day, week to week, month to month support, the court would be faced with a circumstance that would require it to look to the defendant for additional support by deviation.   That is not the intent of the court in its decision.   Accordingly, the defendant's position is inconsistent with the court's order.

Therefore, the motion to correct is granted in regard to this matter.

The court orders that the following be added on page 17 of the decision, regarding order number 7, to clarify the court's intent regarding the composite parts of the payment of child support.

Immediately, the parties shall execute such papers as are necessary to:

(1) cause the Social Security checks for the children to be direct deposited in an account designated by the plaintiff;

(2) permit the withdrawal of those amounts of Social Security checks for the children that have been deposited to the ING account from the date of the court's filing of the memorandum to the effective date of the order at (1), said withdrawn sums to be surrendered to the plaintiff as the proper recipient of the children's child support.

The final issue presented by the motion in argument before the court is how to address the orders of the court which erroneously awarded the plaintiff an escrow sum of $23,794 which had been distributed pendente lite and was no longer an asset at the time of the parties' trial.   Both parties agree that this order is in error;  what the parties disagree about is what relief should be granted in regard thereto, if any.

The defendant's motion for clarification (# 177) seeks clarification of the order regarding the erroneous escrow award.

The plaintiff's motion to open and modify/clarify seeks an order of the court which reduces the plaintiff's obligation to the defendant under a financial award of $50,000 by note and mortgage.   The defendant argues that no adjustment should be made to this financial award.   The parties each argued the equities of their respective positions.   The defendant also argued that the relief sought by the defendant by way of reduction of the monies due him would be an impressible modification of the judgment, with citation to Jaser v. Jaser, 37 Conn.App. 194, 655 A.2d 790 (1995).   It is worthy to provide a full excerpt of the text at issue:

The plaintiff claims that the trial court improperly modified the February 5, 1992 judgment in that the court was not presented with any evidence of a substantial change in circumstances.[fn5] We agree.

After the judgment dated February 5, 1992, the defendant filed his motion for reargument, reconsideration and to set aside judgment on February 20, 1992.   The trial court heard the motion on September 16, 1992, and filed a memorandum of decision on October 7, 1992.[fn6]

In response to the plaintiff's claim that the judgment was improperly modified, the defendant asserts that he never filed a motion for modification pursuant to General Statutes § 46b-86[fn7] and, therefore, did not have to show a substantial change in circumstances.   He asserts that he filed a motion for reargument, reconsideration and to set aside the judgment and that the court's use of the word “modify” in its memorandum of decision on that motion is not determinative of the type of motion filed.[fn8]

Regardless of how the defendant characterizes his motion, we must examine the practical effect of the trial court's ruling in order to determine its nature.   Only then can we determine whether the ruling was proper.   See Diamond v. Diamond, 32 Conn.App. 733, 741-42, 631 A.2d 1157 (1993).   A modification is defined as “[a] change;  an alteration or amendment which introduces new elements into the details, or cancels some of them, but leaves the general purpose and effect of the subject-matter intact.”   Black's Law Dictionary (6th Ed., 1990).

Conversely, “the purpose of a reargument is ․ to demonstrate to the court ‘that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts.’  “ In re Hooker's Estate, 173 Misc. 515, 517, 18 N.Y.S.2d 107 (1940).[fn9] A reconsideration “implies reexamination and possibly a different decision by the [court] which initially decided it.”  Kerr-McGee Nuclear Corp. v. New Mexico Environmental Improvement Board, 97 N.M. 88, 92, 637 P.2d 38 (1981).   While a modification hearing entails the presentation of evidence of a substantial change in circumstances, a reconsideration hearing involves consideration of the trial evidence in light of outside factors such as new law, a miscalculation or a misapplication of the law.   To set aside means “[t]o reverse, vacate, cancel, annul, or revoke a judgment ․” Black's Law Dictionary (6th Ed.1990).  Id. at 200-3.

The order at issue is found at p. 17 paragraph number 10, which states, “The plaintiff shall be the sole owner of the funds held in escrow by Attorney Mahaney in the amount of $23,794 and her individual checking account at Wachovia.”   The court agrees with both parties that this order is the result of a misapprehension of the evidence and such misapprehension resulted in an incorrect finding that said $23,794 ² existed, and, therefore, the erroneous ordered followed there from.

On this issue, the court has before it two different motions:  one is the defendant's motion to clarify, and the other is the plaintiff's motion to open and modify/correct judgment.   While the plaintiff couched a part of her motion as a motion to open and modify, the plaintiff in this matter essentially intended to reargue as a result of the court's misapprehension of facts.   Therefore the court must re-examine the facts and, as a result, this might result in a different decision.   This is to be distinguished from a motion to open and modify:  the plaintiff did not introduce evidence and did not argue a substantial change of circumstances.

Before the court is a misapprehension of the facts to be corrected.   It results in a reduction of $23,794 in the asset pool, in general, and uniquely as a liquid asset, and, is a reduction of $23,794 in the award to the plaintiff under Conn. Gen.Stat. § 46b-81.   Accordingly the court must re-examine the entire set of orders under Conn. Gen.Stat. § 46b-81.  “The rendering of judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.”  (Citation omitted;  internal quotation marks omitted.)  Rubenstein v. Rubenstein, 107 Conn.App. 488, 493-94, 945 A.2d 1043, cert. denied, 289 Conn. 948, 960 A.2d 1037 (2008).

The motion to correct is granted in regard to this matter.

The court orders that the order at page 17 paragraph 10 be omitted and replaced by the following order:

The plaintiff shall be the sole owner of the funds held in her individual checking account at Wachovia.

The court also orders the following regarding the orders at page 15, order number 5:  that the amount due from the plaintiff to the defendant is reduced from $50,000 to $37,000.

Correspondingly at page 18, order 12, referencing that obligation, it is ordered:  the amount is reduced from $50,000 to $37,000.

The defendant's motion to reargue (# 180) addresses one other issue not covered by the other motions referenced above.   The defendant argues that the court's order at p. 16 paragraph 6 which awards the defendant the parties' investment property and then goes on to order:  “He shall cause the plaintiff's name to be removed from such indebtedness within 120 days,” is not necessarily possible because the property is co-owned with Paul Floridia.   The defendant argues that without the cooperation of Mr. Floridia it will not be possible for the defendant to comply with this court order.

The court agrees with the defendant and perhaps was overly optimistic regarding the willingness of the plaintiff's brother to co-operate with any court orders emanating out of this dissolution of marriage of his sister and brother-in-law.   Accordingly the following is ordered.

The motion to reargue is granted in regard to this matter.

The court orders the following in addition to the existing order:

The defendant shall take all reasonable steps to comply with this order.   If the defendant is unable to comply with this order by virtue of the lack of willingness of Paul Floridia to co-operate with any note and mortgage modification or refinance, as the case may be, to remove the plaintiff as a co-signer, then the defendant shall give written notice to the plaintiff of the same.   Mr. Floridia's unwillingness may be considered by the court in a subsequent proceeding if the defendant asserts impossibility of performance.

No other relief is accorded under the motions.

(# 176) The portion of the plaintiff's motion to open and modify/correct that is a motion to open and modify is denied.   That portion of the motion as is a motion to correct is granted in accordance with the orders in boldface above.

(# 177) The defendant's motion for clarification is granted in accordance with the orders entered above.

(# 179) Motion to reargue has been abandoned by the defendant in favor of Motion to reargue (# 180).

(# 180) The motion to reargue has been granted and the relief accorded above granted, over the defendant's objection regarding the note and mortgage.

Lynda B. Munro, Judge

FOOTNOTES

FN1. Some of the issues raised in the motion were not pursued at the argument inasmuch as the parties had accommodated these issues in other ways not presented to the court.   Counsel requested the court only rule on the issues presented at argument..  FN1. Some of the issues raised in the motion were not pursued at the argument inasmuch as the parties had accommodated these issues in other ways not presented to the court.   Counsel requested the court only rule on the issues presented at argument.

FN2. The court notes that the plaintiff's proposed orders baseline report division of marital property also shows the same asset as misapprehended:  it shows the phantom asset to still be in existence..  FN2. The court notes that the plaintiff's proposed orders baseline report division of marital property also shows the same asset as misapprehended:  it shows the phantom asset to still be in existence.

Munro, Lynda B., J.