Bouchard v. Sundberg

• Decision Date: 18 November 2003
• Docket Number: (AC 22640).
• Citation: 834 A.2d 744,80 Conn. App. 180
• Court: Connecticut Court of Appeals
• Parties: DONALD F. BOUCHARD v. JANET J. SUNDBERG ET AL.

80 Conn. App. 180

834 A.2d 744

DONALD F. BOUCHARD v. JANET J. SUNDBERG ET AL.

(AC 22640).

Appellate Court of Connecticut.

Argued September 11, 2002.

Officially released November 18, 2003.

Schaller, Flynn and Hennessy, Js.

Timothy Sheehan, for the appellant (plaintiff).

Edward S. Hyman, with whom, on the brief, was Donald J. Cantor, for the appellees (defendants).

Opinion

SCHALLER, J.

The plaintiff, Donald F. Bouchard, appeals from the judgment of the trial court rendered in favor of the defendants, Janet J. Sundberg and Lawrence E. Sundberg. On appeal, the plaintiff claims that the court improperly (1) granted Janet Sundberg's motion for summary judgment as to count two¹ of the plaintiff's amended complaint and (2) granted the defendants' motions to strike as to count one of the plaintiff's original complaint, and counts three, four and five of the plaintiff's amended complaint. We reverse in part and affirm in part the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiff's appeal. On October 8, 1999, the plaintiff served a six count complaint against each of the defendants, alleging, inter alia, alienation of affections, breach of contract, intentional infliction of emotional distress, negligent infliction of emotional distress, intentional interference with parental rights and visitation, and conspiracy to commit assault and battery.

The defendants filed a motion to strike the plaintiff's complaint on December 22, 1999. The court, Shortall, J., granted the motion as to counts one through five. In response, on June 23, 2000, the plaintiff filed an amended complaint. Pursuant to Practice Book § 10-44, the plaintiff pleaded over stricken counts two through five. The defendants filed a motion to strike the amended complaint on July 13, 2000. The court granted the motion as to counts three, four and five.² On May 14, 2001, Janet Sundberg filed a motion for summary judgment, with supporting affidavits, as to count two of the amended complaint. The court, Winslow, J., granted the motion on August 10, 2001.

The plaintiff withdrew the remaining count, count six, of the amended complaint and filed a motion for the court to render judgment in favor of the defendants on counts one, three, four and five, and to perfect the pleadings so that the plaintiff could file an appeal as to count one of the original complaint and counts two through five of the amended complaint. The court, Berger, J., granted the motion on December 17, 2001. The plaintiff thereafter appealed. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the court improperly granted Janet Sundberg's motion for summary judgment. In support of his claim, the plaintiff argues that the court improperly concluded that the doctrine of collateral estoppel barred him from litigating the second count of the amended complaint. We agree.

The following additional facts are pertinent to the resolution of the plaintiff's claim. On June 26, 1995, the marriage of Donald Bouchard and Janet Sundberg was dissolved. In dissolving the marriage, pursuant to a separation agreement (agreement) that was signed by the parties, the court awarded joint legal custody of the parties' children,³ whose primary physical custody was with Janet Sundberg. The agreement, which became the dissolution decree, further mandated that the parties were required to participate in counseling with their children. The stated purpose of the counseling sessions was to facilitate the reconciliation between the plaintiff and his children so that the parties could comply with the visitation provision described in paragraph 3 (c)⁴ of the agreement. On November 22, 1995, the parties stipulated to open the judgment and to modify paragraph 3 (c) of the agreement.⁵ The court, Barall, J. approved the stipulation.

On or about December 12, 1995, the plaintiff filed a motion to compel, seeking to require Janet Sundberg to comply with the judgment of dissolution, as modified, by immediately making arrangements necessary for her and the children to attend the agreed on counseling sessions. The court, McWeeny, J., on July 10, 1996, ordered that Anne Phillips, a psychotherapist, counsel the children as soon as possible.

The plaintiff alleges that Janet Sundberg and the children did not comply with the counseling order. Therefore, on March 3, 1997, the plaintiff filed a motion for contempt in an effort to enforce compliance with the July 10, 1996 order. The court, Bishop, J., did not make a finding of contempt, but instead modified the judgment as to mandatory therapy. The modification required the plaintiff and Janet Sundberg to meet with Phillips on a weekly basis for the purpose of creating a pathway for the plaintiff's reunification with his children. It also required Phillips to meet with the minor children in September, 1997, in the plaintiff's presence, to discuss the planned therapy. As a result of that order, the minor children, Christopher, Sara and Peter, attended a counseling session with Phillips. The children, however, did not subsequently attend any counseling sessions. Consequently, on January 12, 1998, the plaintiff again attempted to enforce the counseling orders as originally entered on July 10, 1996, by the court, McWeeny, J., and later modified by the court, Bishop, J., by way of a motion to compel. The court, Brennan, J., denied the motion after conducting a hearing⁶ in which the court determined that continued counseling was not in the children's best interests. The plaintiff thereafter commenced this action in October, 1999, by way of a six count complaint that he later repleaded after the defendants' successful motion to strike counts two through five of the original complaint.

In count two of the amended complaint, which was a claim for breach of contract, the plaintiff alleged that Janet Sundberg violated the June 26, 1995 dissolution judgment, violated the terms of the parties' June 26, 1995 agreement and intentionally engaged in activities designed to alienate the parties' children from the plaintiff. With respect to the agreement, count two specifically alleged that the parties had agreed to attend mandatory therapy and counseling sessions for the plaintiff to begin reestablishing his relationship with his children.

On May 14, 2001, Janet Sundberg filed a motion for summary judgment with respect to the second count of the amended complaint with supporting affidavits from her, Amy Joyce Bouchard, Christopher Bouchard and Sara J. Bouchard.⁷ The court, Winslow, J., determined that the underlying basis for the postjudgment orders focused on a duty to comply with the terms of the separation agreement requiring counseling. The court also concluded that the underlying basis for count two of the complaint concerned that alleged duty. Having considered the pleadings, the plaintiff's briefs and the hearing on the motion, the court, in its August 10, 2001 memorandum of decision, concluded that the second count was precluded by the doctrine of collateral estoppel in light of the plaintiff's prior motions for contempt and to compel.

At the outset, we note the appropriate standard of review. "Our standard of review of a trial court's decision to grant a motion for summary judgment is well established. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Citation omitted; internal quotation marks omitted.) Pitchell v. Williams, 55 Conn. App. 571, 577, 739 A.2d 726 (1999), cert. denied, 252 Conn. 925, 746 A.2d 789 (2000).

Because res judicata or collateral estoppel, if raised, may be dispositive of a claim, summary judgment may be appropriate. See Jackson v. R. G. Whipple, Inc., 225 Conn. 705, 712, 627 A.2d 374 (1993). "Claim preclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas on a continuum." (Internal quotation marks omitted.) Dowling v. Finley Associates, Inc., 248 Conn. 364, 373, 727 A.2d 1245 (1999). "Whether the court properly applied the doctrine of collateral estoppel is a question of law for which our review is plenary. . . . The fundamental principles underlying the doctrine are well established. Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim." (Citation omitted; emphasis in original; internal quotation marks omitted.) Cadle Co. v. Gabel, 69 Conn. App. 279, 293-94, 794 A.2d 1029 (2002). We must, therefore, determine whether the issues raised in count two were actually litigated and necessarily determined on previous occasions.

"An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined. . . . An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered. . . . If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action. Findings on nonessential issues usually have the characteristics of dicta." (Citations omitted; internal quotation marks omitted.) Jackson v. R. G. Whipple, Inc., supra, 225 Conn. 714-15.

On appeal, the plaintiff argues that summary judgment was inappropriate because the motion to compel pending before Judge Brennan sought only an order compelling Janet Sundberg to comply with earlier...