Fromm v. Fromm

• Decision Date: 10 June 2008
• Docket Number: No. 28437.,28437.
• Citation: 948 A.2d 328,108 Conn.App. 376
• Court: Connecticut Court of Appeals
• Parties: Victor FROMM v. Sherrill FROMM.

948 A.2d 328

108 Conn.App. 376

Victor FROMM v. Sherrill FROMM.

No. 28437.

Appellate Court of Connecticut.

Argued March 25, 2008.

Decided June 10, 2008.

Carolyn M. Futtner, with whom, on the brief, was Michael J. Auger, Farmington, for the appellant (plaintiff).

GRUENDEL, BEACH and PETERS, Js.

GRUENDEL, J.

The plaintiff, Victor Fromm, appeals from the judgment of the trial court denying his motion to preclude receipt of alimony or support by the defendant, Sherrill Fromm. The plaintiff claims that the court improperly concluded that he could not assert the doctrines of laches and equitable estoppel as defenses to a wage withholding order. We reverse the judgment of the trial court.

The record discloses the following undisputed facts. The parties married in 1978. On December 23, 1987, their daughter, Caitlin, was born. Following the subsequent breakdown of their marriage, a judgment of dissolution entered on November 5, 1993. The various orders entered by the court required, inter alia, that (1) the parties shall have joint legal custody of Caitlin with primary physical custody with the defendant, (2) the plaintiff shall pay support for Caitlin in the amount of $164 per week, (3) the plaintiff shall have reasonable rights of visitation including every Wednesday from 5:30 p.m. to 8:30 p.m. and every other weekend from 5 p.m. on Friday to 8 p.m. on Sunday, (4) the plaintiff shall be entitled to reasonable telephone contact with Caitlin, including at least one telephone call per week "and [the] defendant shall not interfere with same" and (5) the plaintiff shall pay the defendant certain alimony. The court further ordered that "[t]he parties shall exchange current addresses and phone numbers at all times. If either party is to move beyond the borders of the state of Connecticut they shall provide [sixty] days advance notice to the other. Neither party shall move until such notice period has expired."¹

In the fall of 1994, the defendant moved to Florida without providing any notice to the plaintiff. As he testified: "I went to have my visitation on Wednesday night in October, 1994, and the house that she was living in was vacant. There was no furniture, no nothing. I was stunned. I then drove across town to Colchester to where [the defendant's] mother lived. At her mother's house, there was a moving van, and this house was being emptied. I said, `where is [the defendant] and my daughter?' and they indicated she is in Florida. I said, `I want to see them.' [They told me that they] will contact you." The plaintiff called the police, and an officer was dispatched to the residence. Nevertheless, the defendant's parents refused to provide the plaintiff with an address or telephone number.

After months passed without any contact from the defendant, the plaintiff's attorney spoke with the attorney that had represented the defendant in the dissolution proceeding, and a visit in Florida was arranged. The plaintiff traveled to Florida in February, 1995. Upon arriving at the location provided by the attorney, the plaintiff learned that said property was the home of the defendant's mother, who informed the plaintiff that Caitlin and the defendant were not there. Days later, they at last appeared, and the plaintiff spent two days with his daughter.

During his visit, neither the defendant nor her parents provided the plaintiff with her current address or telephone number. The plaintiff returned to Florida approximately three months later in hopes of visiting Caitlin and learning of her whereabouts. As the plaintiff explained, "I just went to the address I had back in February." He briefly spoke with the defendant's mother, repeatedly asking where he could find Caitlin or the defendant. Her mother responded that "she will contact you" and ordered him off her property. The plaintiff never saw his daughter during that visit. The plaintiff never heard from the defendant.

The plaintiff contacted other family members of the defendant in search of any lead. At one point, he spoke with the defendant's brother, who promised to help the plaintiff. Despite that assurance, he never heard from the defendant's brother again. The plaintiff likewise contacted dozens of the defendant's friends without any success.

On October 4, 1995, the plaintiff filed a motion for modification of custody and visitation, alleging that the defendant had failed to comply with the dissolution orders concerning his visitation and telephone contact with Caitlin. The record indicates that this motion never was acted on by the court. The plaintiff explained his failure to pursue the motion or other legal options as follows: "[A]fter the divorce, I had lost my house, lost my family. I was trying to reorganize my life. I was penniless. I just couldn't mentally go anymore because every time I would try to find her or get her or do it, it was just another roadblock, and I just couldn't go on and on. I just couldn't do it anymore. I would end up in an institution."

In April, 1997, the plaintiff moved from New Britain to West Hartford. He took great pains to assure that no correspondence was lost as a result of that move. As he testified: "I went to the post office, and I filed a change of address or some sort of thing [so] that they would pay special attention, and you have to come back within twelve months; that if there is a letter or any contact, they would forward it again. I did that for three years running." Despite those efforts, no correspondence came. At the October 30, 2006 hearing, the plaintiff testified that the last contact he had with the defendant and Caitlin was during his February, 1995 visit.

On December 23, 2005, Caitlin became eighteen years old. Less than one month later, on January 17, 2006, the defendant filed a petition with the bureau of child support enforcement (bureau) seeking arrearage payments for alimony and child support. The bureau provided notice to the plaintiff of the issuance of a wage withholding order soon thereafter. As the court noted, "[w]hen he received notice from the bureau, the plaintiff had not heard from the defendant in over ten years. He had no address or telephone number for her. The defendant has filed no motion in the Superior Court alleging the plaintiff's wilful failure to pay alimony and child support."

Pursuant to General Statutes § 52-362(c)(1), the notice from the bureau informed the plaintiff that he could request a hearing before the court to contest the claimed delinquency or request a modification of the support order. Accordingly, on March 7, 2006, the plaintiff filed both a motion to vacate the wage execution and a motion to modify alimony and support. The latter motion contested the claimed delinquency, alleging that "[i]n approximately 1993, the defendant secreted the whereabouts of herself and Caitlin from the plaintiff. The plaintiff only recently learned that the defendant had `resurfaced' when he was recently served with documentation from support enforcement services. The defendant failed to provide the plaintiff with her address and situation in contravention of the decree of dissolution." He therefore sought either a reduction or elimination of any arrearage on alimony and support due.

By certified letter dated April 27, 2006, counsel for the plaintiff notified the defendant that, pursuant to Practice Book § 13-26, he sought to depose her on May 9, 2006. The defendant signed the certified mail receipt but did not appear for the deposition. Counsel for the plaintiff again contacted the defendant by certified letter dated May 15, 2006, in which he explained that "[a] deposition was scheduled for May 9, 2006, but you did not appear. I have submitted a new deposition notice. I ask that you contact me to discuss scheduling for any reason this date does not work." Although the defendant again signed the accompanying certified mail receipt, she failed to appear for the May 31, 2006 deposition.

On October 4, 2006, the plaintiff filed a motion to preclude further receipt of alimony or support. It stated: "The [p]laintiff hereby moves that the court enter an order precluding the defendant from receiving or collecting alimony and/or child support based on one or more of the following grounds: 1. The defendant is guilty of laches; 2. The defendant is equitably estopped from pursuing claims of past due support and alimony; [and] 3. The defendant has waived her rights to pursue past due alimony and/or support." The plaintiff subsequently filed an order for hearing and notice, which the court granted. State Marshal Joshua C. Martin left a true and attested copy of the plaintiff's motion to preclude further receipt of alimony or support and order for hearing and notice at the defendant's place of abode on September 28, 2006.

On October 30, 2006, the court held a hearing on the plaintiff's motion to modify alimony and support and his motion to preclude further receipt thereof. The defendant did not appear at that hearing. The court heard testimony from the plaintiff, and the notice from the bureau was introduced into evidence. In its memorandum of decision, the court reasoned: "The defendant has filed no properly docketed motions for contempt or modification in the Superior Court seeking alimony, child support and arrearages thereon. The plaintiff asserts the defenses of laches and equitable estoppel in order to terminate alimony and child support payments. In this case, the moving party may not assert laches and equitable estoppel as affirmative grounds for a modification. Laches and equitable estoppel are special defenses, not affirmative causes of action."² It therefore denied the plaintiff's motion to modify alimony and support and his motion to preclude further receipt thereof. From that judgment, the plaintiff has appealed.³

On appeal, the plaintiff contends that the court improperly concluded that he could not assert the doctrines of laches and equitable estoppel as defenses to the...