Pritchard v. Pritchard

• Decision Date: 13 February 2007
• Docket Number: No. 17615.,17615.
• Citation: 914 A.2d 1025,281 Conn. 262
• Court: Connecticut Supreme Court
• Parties: Mary Ellen PRITCHARD v. James L. PRITCHARD.

914 A.2d 1025

281 Conn. 262

Mary Ellen PRITCHARD v. James L. PRITCHARD.

No. 17615.

Supreme Court of Connecticut.

Argued November 28, 2006.

Decided February 13, 2007.

Robert D. Snook, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan Quinn Cobb, assistant attorney general, for the appellant (state).

Albert Lau, with whom was David V. DeRosa, for the minor children.

BORDEN, NORCOTT, PALMER, VERTEFEUILLE and ZARELLA, Js.

BORDEN, J.

This is a certified appeal from the judgment of the Appellate Court dismissing the appeal of the state of Connecticut from certain orders of the Superior Court and the family support magistrate.¹ See Pritchard v. Pritchard, 92 Conn.App. 327, 885 A.2d 207 (2005). Upon full consideration of the briefs and arguments of the state and the attorney for the minor children, we conclude that the Appellate Court improperly dismissed the state's appeal. Accordingly, we reverse the judgment of that court and remand the case for consideration of the merits of the state's appeal.

The opinion of the Appellate Court sets forth the following facts and procedural history. "The plaintiff, Mary Ellen Pritchard, and the defendant, James L. Pritchard, were married on May 5, 1979. Two children were born of the marriage. On June 11, 1996, the parties were divorced. Pursuant to the judgment of dissolution, the defendant was ordered to pay, inter alia, child support in the amount of $180 per week and alimony in the amount of $100 per week. An alimony arrearage of $7549.80 was also found by the court, and the defendant told the court that he would continue to refuse to pay the delinquent alimony. In response, certain bank orders were issued. Nevertheless, on November 1, 1996 pursuant to a motion for contempt, the court found the defendant to be in arrears $3600 in child support, $2000 in alimony and $303 in unreimbursed medical expenses. Finding the defendant in contempt, the court issued additional bank orders, transferring certain moneys to the plaintiff. Following the transfer of the bank funds to the plaintiff, which did not clear up the arrearage entirely, the court appointed an attorney for the defendant on March 31, 1997, finding that the defendant was in jeopardy of incarceration for his failure to comply with the orders of the court.

"In response to another motion for contempt filed by the plaintiff, the court, Axelrod, J., on November 25, 1997, denied the motion because it concluded that the plaintiff, herself, had failed to comply with the orders of the court regarding the transfer of certain Florida property to the defendant and that her delay had caused the defendant to lose that portion of the property that the plaintiff had been ordered to transfer to him. The court did find, however, that the defendant owed an arrearage of $13,107.95, consisting of $1700 in alimony, $11,160 in child support and $247.95 in unreimbursed medical expenses. The court also stated that, pursuant to the terms of the judgment of dissolution, alimony had terminated on October 10, 1996, and the court ordered the payment on the arrearage to be $35 per week, with an increase as each child reached majority. On September 3, 1998, the plaintiff filed another motion for contempt, which was heard on September 8, 1998. After the defendant failed to appear for the hearing on the contempt motion, the court found that the arrearage was $27,608.70, and it issued a capias, finding the defendant in contempt.

"On July 3, 2000, a new capias was issued after it was discovered that the original had been lost. On September 12, 2002, the defendant was arrested and bond was set at $30,000. After setting the bond, the court Rodriguez, J., referred the matter to the family support magistrate. On September 18, 2002, the family support magistrate, John P. McCarthy, found the defendant in contempt and set a purge figure of $65,588.70, the amount of the support arrearage. The defendant continued to be brought before the court on a monthly basis for review of the contempt finding. On April 2, 2003, the magistrate increased the defendant's purge amount to $70,628.70 and also set a bond of $10,000.

"On April 23, 2003, the defendant filed a motion for contempt against the plaintiff, alleging that her failure to transfer the Florida property in a timely matter amounted to a fraudulent conveyance.² On July 30, 2003, during one of the monthly reviews of the defendant's incarceration on the contempt finding, the magistrate found that property owned by the defendant in Bethel had been fraudulently transferred to the defendant's companion, Suzanne Spellman, and the magistrate ordered that the defendant could be released if Spellman placed a mortgage on the property to secure a lien in the name of the plaintiff and then sold the property and paid the plaintiff. On November 26, 2003, the magistrate lowered the defendant's purge amount to zero and set a bond of $30,000. On December 4, 2003, the state filed a motion for reconveyance of the Bethel property with the Superior Court.³ On December 15, 2003, Spellman and the defendant appeared before the Superior Court for a hearing on the motion for reconveyance. On January 7, 2004, the magistrate lowered the defendant's bond to $5000, and set another review date for the following week, January 14, 2004.

"On January 12, 2004, after a hearing on the state's motion for reconveyance, the court, Shay, J., ordered the defendant released from custody and vacated [the finding of an arrearage] the capias, the bond and all prior findings of contempt.⁴ The court also suspended the payment of child support and continued the matter until April 19, 2004. The state filed an appeal from the January 12 [2004] judgment." Pritchard v. Pritchard, supra, 92 Conn. App. at 330-32, 885 A.2d 207. The state claimed on appeal that the trial court lacked authority under General Statutes §§ 46b-231 (q)⁵ and 46b-86⁶ to vacate the prior orders issued by the Superior Court and the family support magistrate when the defendant had not appealed from or otherwise challenged those orders.

"Subsequently, on April 26, 2004, the trial court found that the defendant had fraudulently transferred the Bethel property to Spellman, but stayed enforcement until it could recalculate the amount of arrearage." Id., at 332-33, 885 A.2d 207.

On August 24, 2004, the trial court issued a memorandum of decision in which it reiterated its January 12, 2004 orders, recalculated the amount of arrearage and ordered the defendant to make certain payments. Id., at 333, 885 A.2d 207. The court explained that it had vacated the September 8, 2002 contempt order because "the original court order did not comport with the fundamentals of due process...." With respect to its ruling vacating the arrearage order, the court recognized that the defendant had never filed a motion for modification. It concluded, however, that it was "equitable and appropriate" to treat the defendant's April 23, 2003 motion for contempt⁷ against the plaintiff for her failure to comply with orders concerning the transfer of the Florida properties as a motion to reopen the September 8, 1998 judgment, because the defendant "consistently contended that the loss of the Florida real estate was somehow tied to his child support obligation...." Accordingly, the court concluded that it was authorized to vacate the finding of contempt and to modify the existing child support orders. The state then filed an amended appeal from that decision, indicating that the original judgment was the one rendered on January 12, 2004. Attached to the amended appeal was an amended preliminary statement of issues in which the state raised two new issues related to the August 24, 2004 ruling.

The Appellate Court dismissed the state's appeal for lack of a final judgment. See Pritchard v. Pritchard, supra, 92 Conn.App. at 340, 885 A.2d 207. The court noted that the trial court "specifically ordered the parties to come before it for another hearing on April 19, 2004, at which time it intended to take evidence on the defendant's ability to meet his financial obligations." Id., at 339, 885 A.2d 207. The Appellate Court concluded, therefore, that "the January [12, 2004] rulings did not terminate a separate and distinct proceeding or so conclude the rights of the parties that further proceedings could not affect them, as contemplated by State v. Curcio, [191 Conn. 27, 31, 463 A.2d 566 (1983)]"; Pritchard v. Pritchard, supra, at 338-39, 885 A.2d 207; and, therefore, did not constitute an appealable final judgment.⁸ The Appellate Court further concluded that the appeal from the January 12, 2004 ruling was moot in light of the trial court's subsequent ruling on August, 24, 2004, because "[a] reversal of the January 12, 2004 judgment would have no effect on the August 24, 2004 judgment...." Pritchard v. Pritchard, supra, at 340, 885 A.2d 207. The Appellate Court also concluded that the state had failed to appeal from the later judgment. Id.

The state claims on appeal to this court that the Appellate Court improperly: (1) dismissed its appeal for lack of a final judgment; and (2) determined that its appeal from the January 12, 2004 ruling was moot in light of the trial court's August 24, 2004 ruling and that the state had failed to appeal from that ruling. The state argues that the trial court's January 12, 2004 ruling was a final judgment under Curcio and that it properly had amended the original appeal to include the August 24, 2004 ruling. We conclude that the January 12, 2004 ruling constituted a final judgment for purposes of appeal and that the state complied with the procedures for amending that appeal to include the August 24, 2004 ruling.

As a preliminary matter, we set forth the standard of review. "The lack of a final judgment implicates the subject matter jurisdiction of an appellate court to hear an appeal. A determination regarding ... subject matter...