Nancy Kiniry v. Richard Kiniry (2012)

MEMORANDUM OF DECISION

(The plaintiff's March 8, 2012 postjudgment motion:  No. 187 to reargue postjudgment motion:  No. 184 for order to establish child support and unreimbursed medical expenses;  and order regarding the distribution of funds held in escrow following the refinance of the marital home)

On March 8, 2012, the plaintiff, Nancy Kiniry, filed motion:  No. 187, to reargue her motion:  No. 184 to establish child support and unreimbursed medical expenses;  and order regarding the distribution of funds held in escrow following the refinance of the marital home.

Pursuant to Practice Book § 11–12 this court granted the plaintiff's motion no. 187 to reargue.   On March 21, 2012, this matter was addressed at a hearing where the plaintiff, represented by attorney Taryn Martin, and the self-represented defendant, Richard Kiniry, presented argument.

By way of background, the parties were married on July 2, 1993.   On December 4, 2006, the plaintiff filed a complaint seeking dissolution of her marriage to the defendant on the ground of irretrievable breakdown.   Following the complaint, the parties filed numerous pendente lite motions regarding custody, child support and access to the children.   On July 30, 2007, an order was entered that the parties share joint legal custody and that the children's primary residence be with the plaintiff for school purposes only.   On August 6, 2008, following a one-day trial of the dissolution action, the court, Aurigemma, J., rendered an oral decision from the bench.   The court ordered:  “[T]he issue of custody and access will remain status quo.   Neither party shall pay child support.”

The Supreme Court transferred the plaintiff's timely appeal from the Appellate Court and concluded that the trial court abused its discretion in several respects with regard to the child support orders, and, further, that it failed to determine the parents' responsibility for the children's unreimbursed medical expenses.   These findings, however, did not disturb the other financial orders entered by the court.   The case was remanded to the trial court for a reconsideration of those orders and for a determination regarding unreimbursed medical expenses.   In all other respects the judgment of the court was affirmed.  Kiniry v. Kiniry, 299 Conn. 308, 346, 9 A.3d 708 (2010).

This court has identified three fundamental arguments that were raised in the plaintiff's motion no. 187 to reargue and during the March 21, 2012 hearing on that motion.   The issues are as follows:

1. The plaintiff argues that this court was limited to the trial court's finding at the time of judgment concerning the parties' gross weekly and gross net weekly incomes.   This court reviewed the entire record and found in its decision dated February 29, 2012 that the defendant enjoyed a higher net weekly income than found by the trial court but also provided certain health benefits that the trial court did not consider.   The plaintiff argues that this court was compelled to adopt the findings of the trial court set forth in its articulation.

The Supreme Court has held that on remand of financial issues in family cases, the trial court must look to the evidence at the time of the dissolution in fashioning financial orders.  Sunbury v. Sunbury, 216 Conn. 673, 674, 583 A.2d 636 (1990).   It was proper for this court to make findings based on a review of the entire record from the time of judgment.

2. The plaintiff also argues that because the court ordered the issue of custody and access to remain “status quo,” and the plaintiff was the custodial parent receiving child support at the time of dissolution, this court was not permitted to deviate from the child support guidelines and find that the parents shared residency and physical custody of the children on a more or less equal basis over the course of the calendar year.

The plaintiff notes that the Supreme Court only mentioned the equal parenting time in dicta.   Nevertheless, the Supreme Court also noted in its “undisputed facts” section that “the children's primary residence be with the plaintiff for school purposes only.”  Kiniry v. Kiniry, 299 Conn. 308, 312–13, 9 A.3d 708 (2010).   It was proper for this court, consistent with the Supreme Court's analysis, to review the record and find that the parents shared residency and physical custody.

3. The plaintiff asserts that it was improper for this court to refer the matter of the distribution of funds held in escrow following the refinance of the marital home back to Judge Aurigemma for clarification and articulation.   The statute that the plaintiff relies on, General Statutes § 51–183c, provides:  “No judge of any court who tried a case without a jury in which a new trial is granted, or in which the judgment is reversed by the Supreme Court, may again try the case.   No judge of any court who presided over any jury trial, either in a civil or criminal case, in which a new trial is granted, may again preside at the trial of the case.”

This statute only applies in cases where an issue was reversed and an entire new trial must be held on the issue.   In Board of Education v. East Haven Education Assn., 66 Conn.App. 202, 784 A.2d 958 (2001), the court held that § 51–183c has been “narrowly construed ․ to apply solely to trials and not to all types of adversarial proceedings ․ [Additionally] Section 51–183c does not apply to pretrial or short calendar proceedings.”  (Citation omitted;  emphasis added;  internal quotation marks omitted.)  Id., 216.   In the present case, Judge Aurigemma is being asked to clarify property rulings that were upheld by the reviewing court.   The plaintiff cites Gagne v. Vaccaro, 133 Conn.App. 431, 35 A.3d 380 (2012), which held that once an order awarding appellate attorneys fees was reversed and remanded for evidentiary hearing, the same judge trial referee was disqualified from presiding over new hearing on those attorneys fees.¹  Id., 439.   The court determined the statute applied because the same trial court that was reversed on the issue of attorneys fees conducted a new hearing on the same issue.  Id.

This court is not aware of any law that prohibits a judge from issuing a clarification of that portion of her decision which was upheld.

ORDERS:

After considering argument this court denies further relief.

It is so ordered.

HARRY E. CALMAR, JUDGE

FOOTNOTES

FN1. Gagne cites Rosato v. Rosato, 255 Conn. 412, 425, 766 A.2d 429 (2001), in which the Court stated that, to comply with § 51–183c, the remand for a new hearing on the financial orders in a dissolution case would necessarily be before a different trial court than that which issued both the original order and the clarification.   There also, the issue was reversed and a new hearing was to be held..  FN1. Gagne cites Rosato v. Rosato, 255 Conn. 412, 425, 766 A.2d 429 (2001), in which the Court stated that, to comply with § 51–183c, the remand for a new hearing on the financial orders in a dissolution case would necessarily be before a different trial court than that which issued both the original order and the clarification.   There also, the issue was reversed and a new hearing was to be held.

Calmar, Harry E., J.