Jennifer K. Dorring v. John R. Dorring (2014)

MEMORANDUM OF DECISION

BACKGROUND

The parties appeared before the court on December 10, 2013, submitting a written agreement which covered several outstanding motions including the defendant's Motion for Modification filed July 23, 2013 (Motion # 142.00) seeking an order of child support payable by the plaintiff.   As to that motion, the parties agreed to a weekly child support amount of $138 to be paid by the plaintiff from the date of the hearing forward.   The agreement of the parties, which was approved by and made an order of the court, called for the court to determine the amount, if any, of retroactive child support to be paid by the plaintiff for the period prior to December 10, 2013.

The plaintiff argues that the passage of more than 120 days between the filing of the motion and December 10, 2013 rendered the motion “stale” under Practice Book Section 11–19, thereby precluding any retroactive order of child support.  (Plaintiff's written objection dated November 20, 2013 claimed that the age of the motion rendered it “non-justiciable,” but as the result of the agreement of the parties the motion did move forward with the only remaining issue being that of retroactivity.)

The defendant argues that Section 11–19 is inapplicable and that the court has the authority under Connecticut General Statutes Section 46b–86 to make the order of child support retroactive to a date as early as July 25, 2013, the date of service of the motion for modification.   The defendant requested and received the opportunity to file a brief on the issue, which has now been received and reviewed by the court.   The plaintiff was afforded the opportunity to file a reply brief but has chosen to stand on the oral argument made December 10, 2013 and the cited Practice Book section.

CONCLUSIONS

The court concludes that Practice Book Section 11–19 does not preclude it from making a retroactive order of child support in this case.  Section 11–19 prescribes a time limit of 120 days within which the judge who hears a short calendar matter must issue his or her decision on it.   Under the rule, the time limit commences upon the submission of the matter to the judge, defined as either the date the matter is heard or the date the last brief ordered by the court is filed.   In the present case, the motion was heard by the court (after previous continuances) on December 10, 2013, with one brief filed thereafter on December 23, 2013.   Thus the 120–day time limit under Section 11–19 has only recently begun to run.

Section 11–19 does not, as the plaintiff appears to urge, establish a time limit of 120 days commencing with the filing of the motion within which the matter must be heard by the court and decided.   Such an interpretation of the rule would frequently leave a judge with little or no time to make a decision after a motion had been heard and briefs filed.   Rather, the rule sets a time limit for a judge to act once the motion has been heard and briefs, if any, filed.   In effect, the plaintiff seeks to use the rule, which governs the time for a judge to make a decision after hearing, to limit the time within which a party may claim a motion for a hearing in the first place—or, as here, to limit the relief the moving party might request on a motion which has in fact gone forward for all other purposes by agreement of the parties.   The court finds no support for this proposition in the Practice Book rule relied upon by the plaintiff.

Furthermore, the relief provided by Section 11–19 if a judge fails to make a timely decision is to permit a party to request the reassignment of the matter to another judge for decision.   It does not deprive the moving party of the right to the relief requested in the motion.

Having concluded that it has the authority to order retroactive child support in this matter, the court turns to the question of whether it should and, if so, for what period.   After considering the equities in the case, the court declines to make the order of child support retroactive all the way back to the date of service of the motion, noting that the defendant himself requested and received two continuances of the hearing on the motion which substantially lengthened the potential retroactivity period faced by the plaintiff.   Rather, the court concludes that it is equitable to make the child support order retroactive to the date which was scheduled for the hearing upon one continuance request, i.e. to October 9, 2013.

ORDER

The plaintiff shall pay to the defendant child support in the amount of $138 per week for the period of eight weeks and five days which elapsed between the previously scheduled hearing date of October 9, 2013 and December 9, 2013, for a total of $1,202.55.   Said total sum shall be paid within thirty days of this order.

SO ORDERED.

BY THE COURT,

Albis, J.

Albis, Michael A., J.