Jaser v. Jaser

• Decision Date: 14 March 1995
• Docket Number: No. 11838,11838
• Citation: Jaser v. Jaser, 655 A.2d 790, 37 Conn.App. 194 (Conn. App. 1995)
• Court: Connecticut Court of Appeals
• Parties: Laura JASER v. George JASER.

Page 790

655 A.2d 790

37 Conn.App. 194

Laura JASER v. George JASER.

No. 11838.

Appellate Court of Connecticut.

Argued Oct. 31, 1994.

Decided March 14, 1995.

Adele V. Patterson and Elaine S. Amendola, Bridgeport, for appellant (plaintiff).

William F. Gallagher, with whom, on the brief, were Cynthia C. Bott and Barbara L. Cox, New Haven, for appellee (defendant).

Mark R. Soboslai, New Haven, for minor children.

Before LANDAU, HEIMAN and SPEAR, JJ.

LANDAU, Judge.

In this appeal from a judgment of dissolution of marriage and a modification of that judgment, the plaintiff claims that the trial court improperly (1) entered financial orders in its judgment of dissolution of marriage that were not supported by the evidence, and (2) modified its previous orders in regard to child support and lump sum alimony. She asserts that the trial court failed to accord lis pendens their legal effect, which resulted in original financial orders that were not supported by the evidence and were inequitable. She also argues that, as to the modification, the trial court failed to address the threshold issue in that it failed to find a substantial change in circumstances. See General Statutes § 46b-86; Emerick v. Emerick, 28 Conn.App. 794, 802, 613 A.2d 1351, cert. denied, 224 Conn. 915, 617 A.2d 171 (1992).

The plaintiff commenced her dissolution action against the defendant on January 26, 1988, seeking custody of their three minor children and financial relief. In a cross complaint, the defendant likewise sought a dissolution of the marriage and other relief, including custody. A trial was held in October, 1991, during which all issues were heard except, by agreement of counsel, custody and visitation. The trial court rendered judgment on February 5, 1992, in which it dissolved the parties' marriage and ordered, inter alia, (1) that the defendant pay child support in the amount of $346.63 per week, per child, and all medical and dental expenses, (2) that the plaintiff receive the family residence, (3) that the defendant pay all encumbrances on the family residence and pay off the first and second mortgages within five years, (4) that the plaintiff receive a condominium located in Quebec, Canada, (5) that the defendant pay periodic alimony in the amount of $250 per week for ten years or until the plaintiff or the defendant dies or the plaintiff remarries, and (6) that the defendant pay lump sum alimony in the amount of $100,000, payable at the rate of $20,000 per year, beginning one week after the date of the judgment.

The defendant subsequently filed a motion entitled "motion for reargument, reconsideration and to set aside judgment." Following argument on that motion, the trial court modified its February 5, 1992 judgment by reducing the child support award, changing the method of paying the lump sum alimony and vacating the award of the Quebec condominium. This appeal from the judgment and the modified judgment followed.

In conjunction with this appeal, this court ordered counsel for the parties and for the minor children to brief and argue the following issues: (1) Is it plain error for the trial court to hear a motion that affects the amount of child support, without the participation of appointed counsel for the minor children, in light of the provisions of General Statutes § 46b-54 ¹ and the relevant case law? (2) Whether the Appellate Court may properly hear an appeal from the granting of a motion affecting child support without the participation of counsel for the minor children. ²

I

We first address the issues that this court ordered the parties to address, to which the following facts are relevant. Attorney Mark Soboslai was appointed by the trial court as counsel for the minor children on December 7, 1988, in the midst of proceedings on motions for custody of the children and for exclusive possession of the family residence. The hearing was adjourned and rescheduled to allow Soboslai's participation and, when the proceedings were reconvened on January 4, 1989, Soboslai was present. At that time, the parties and Soboslai presented an agreement to the court that provided, inter alia, "The parties contemplate, Your Honor, meeting with Mr. Soboslai on matters concerning joint custody, residence and visitation, and contemplate after that meeting coming to the court for more extensive orders or structured visitation." The court entered orders in accordance with the agreement.

Subsequently, the court bifurcated the trial to separate issues of permanent custody from financial issues. The plaintiff asserts that the trial court did not request the participation of counsel for the minor children in the proceedings involving financial matters. Moreover, both parties and counsel maintain that there was a mutual agreement and understanding that Soboslai's participation would not be required at the trial of the financial issues. Soboslai maintains that this agreement was reached after he determined that the cost of his involvement in the dispute over the financial matters outweighed any benefit to the minor children.

"The court may appoint counsel for any minor child or children ... if the court deems it to be in the best interests of the child or children...." General Statutes § 46b-54(a). "Counsel for the child or children shall be heard on all matters pertaining to the interests of any child, including the custody, care, support, education and visitation of the child, so long as the court deems such representation to be in the best interests of the child." General Statutes § 46b-54(c).

While "[i]t is not ... mandatory that counsel be appointed in every situation"; Nye v. Marcus, 198 Conn. 138, 146, 502 A.2d 869 (1985); " '[g]enerally, appointment of counsel for minor children rests within the discretion of the trial court.' " In this case, the court properly exercised its discretion pursuant to § 46b-54(a) and appointed counsel for the minor children. ³

Section 46b-54 vests discretion in the trial court to determine counsel's role in the proceedings. The plain language of § 46b-54(c) permits counsel for the minor children to be heard on those "matters pertaining to the interests of any child ... so long as the court deems such representation to be in the best interests of the child." See Knock v. Knock, 224 Conn. 776, 791, 621 A.2d 267 (1993). Section 46b-54 does not require the trial court to hear counsel on every issue regarding the minor children. Rather, the statute directs the trial court to hear counsel on those matters as to which the court deems that it is in the best interests of the child to do so. It follows as a corollary that because the trial court may appoint counsel for the minor child only when it deems representation is in the best interests of the child; see General Statutes § 46b-54(a); and counsel shall be heard on all matters pertaining to the interests of the child as long as the court deems the representation to be in the best interests of the child; see General Statutes § 46b-54(c); then the appointment of counsel is a general appointment unless and until the court limits the appointment.

In this case, it is apparent from the record that the trial court adopted the agreement of the parties that the appointment would be limited to "matters concerning joint custody, residence and visitation." There is no suggestion in the record that the trial court ordered Soboslai's participation in any other issues, including that of child support. To the contrary, the record is clear that counsel was appointed for the limited purposes of custody, residence and visitation, none of which was before the trial court during the trial of financial matters or the subsequent motion hearing. Representations made to the trial court and in letters between the attorneys and counsel for the minor children reflect that all involved understood that Soboslai's retainer was limited to the issues of custody, residence and visitation.

We conclude that, under the circumstances of this case, because counsel's appointment was limited, it was proper for the trial court to have heard the motion affecting child support without the participation of counsel for the minor children. Consequently, we also conclude that we may properly hear this appeal from the granting of that motion. ⁴

II

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. ⁵ 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. ⁶

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 ⁷ 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. ⁸

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...