Opinion
WWMFA104015105S
03-17-2017
Mary Galt v. Christopher Mark
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT DATED JANUARY 9, 2017, #367
Edward C. Graziani, Judge.
On February 15, 2013, the court rendered judgment dissolving the marriage of the plaintiff, Mary Galt, and the defendant, Christopher Mark. Pursuant to this dissolution, the parties were to have shared custody of their minor children, and work cooperatively to develop future plans in the best interest of their children. The dissolution judgment also provided that the plaintiff was to have no present child support obligation, a deviation from the Connecticut Child Support Guidelines, which was justified by the " other financial resources available to the defendant" and " the coordination of total family support."
On October 17, 2016, the defendant filed a postjudgment motion for modification of child support on the grounds that: (1) both parties have agreed that one of their minor children will attend a private school, known as the Pomfret School, which constitutes a substantial change in circumstances sufficient to justify a modification of the existing child support order, and (2) upon information and belief, the plaintiff's financial circumstances and income have substantially improved since the date of dissolution.
On January 9, 2017, in response to the defendant's motion for modification, the plaintiff filed a postjudgment motion for summary judgment, accompanied by a memorandum of law in support. Thereafter, on January 31, 2017, the defendant filed a response/objection to the plaintiff's motion for summary judgment.
DISCUSSION
The standards for considering motions for summary judgment are well established. Practice Book § 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 seeking summary judgment, it is the movant that has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." (Internal quotation marks omitted.) State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 573, 142 A.3d 1079 (2016).
In addition, in order to prevail on his postjudgment motion to modify child support, the defendant must make a showing of a substantial change in circumstances. See General Statutes § 46b-86. " To obtain a modification, the moving party must demonstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it. Because the establishment of changed circumstances is a condition precedent to a party's relief, it is pertinent for the trial court to inquire as to what, if any, new circumstance warrants a modification of the existing order . . . Once a trial court determines that there has been a substantial change in the financial circumstances of one of the parties, the same criteria that determine an initial award of alimony and support are relevant to the question of modification." (Citation omitted; internal quotation marks omitted.) Olson v. Mohammadu, 310 Conn. 665, 672, 81 A.3d 215 (2013).
The plaintiff argues that she is entitled to summary judgment as to the defendant's postjudgment motion to modify child support because there is no genuine issue of material fact that the defendant's circumstances have not changed since the entry of the last court order. The plaintiff also argues that the defendant has failed to present supporting evidence that the plaintiff's financial circumstances have substantially improved. In response, the defendant counters that the plaintiff's use of a motion for summary judgment is procedurally improper, and, alternatively, that genuine issues of material fact exist.
A
The Motion for Summary Judgment is Procedurally Inappropriate
It is apparent that the plaintiff relies on Practice Book § 17-49 as the authority for her motion for summary judgment because of her direct citation to and reliance upon this provision. Nevertheless, her submissions are devoid of any case in which a motion for summary judgment was granted, or even considered, in response to a postjudgment motion to modify child support.
Although our appellate courts have not specifically determined whether the use of a motion for summary judgment filed in response to a postjudgment motion to modify child support is procedurally proper, the court in Sheiman v. Sheiman, 72 Conn.App. 193, 200, 804 A.2d 983 (2002), held that a motion to strike filed in response to a postjudgment motion to modify custody is procedurally improper. Subsequently, the court in Zirinsky v. Zirinsky, 87 Conn.App. 257, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005), held that a motion to strike filed in response to a postjudgment motion to modify child support was procedurally improper because no Practice Book provision authorized the use of such a motion. Specifically, Zirinsky concluded that " [n]either Practice Book § 25-16 nor Practice Book § 10-39 mentions motions of any type . . ." instead, the language used in these sections " specifically addresses certain identified pleadings, complaints, counterclaims and cross claims and, therefore, does not apply to motions." (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 270-71. Subsequent Superior Court decisions have consistently applied this rule to hold that both motions to strike and motions for summary judgment are procedurally improper to challenge a postjudgment motion for modification. The court is persuaded by the numerous Superior Court cases and finds the holdings of Sheiman and Zirinsky to be instructive in the present case because the courts' reasoning concerning motions to strike is equally applicable to motions to summary judgment.
See Kozlowski v. Kozlowski, Superior Court, judicial district of New Haven, Docket No. FA-99-0434893-S, (January 7, 2015, Kenefick, J.T.R.); Esse v. Esse, Superior Court, judicial district of Fairfield, Docket No. FA-03-0404062-S, (July 8, 2010, Owens, J.T.R.); Eckert v. Eckert, Superior Court, judicial district of Fairfield, Docket No. FA 99-0359165-S, (June 30, 2005, Hauser, J.); Behrns v. Behrns, Superior Court, judicial district of Fairfield, Docket No. FA-86-0229834-S, (March 14, 2005, Owens, J.), rev'd on other grounds, 102 Conn.App. 96, 924 A.2d 883 (2007).
In the present case, the plaintiff's motion for summary judgment was directed at the defendant's postjudgment motion for modification; however, there is no Practice Book section that authorizes the use of such a motion in this context. The authority for a party to move for summary judgment is established by Practice Book § 17-44, which provides in relevant part: " [A]ny party may move for a summary judgment as to any claim or defense . . . These rules shall be applicable to counterclaims and cross complaints . . ." Similar to the Practice Book sections that provide the authority for a party to file a motion to strike, any mention of " motions" is absent from Practice Book § 17-44. Moreover, neither Practice Book § 17-44, nor the succeeding sections, mentions motions of any other type and it certainly cannot be read to provide authority for a party to move for summary judgment in response to a motion, particularly a postjudgment motion to modify. Notwithstanding the inapplicability of Practice Book § 17-44 et seq., there is no section in Practice Book chapter 25, entitled " Superior Court--Procedure in Family Matters, " that provides the plaintiff the authority for her motion. Therefore, the court concludes that the plaintiff's use of a motion for summary judgment in response to a postjudgment motion to modify child support is procedurally inappropriate because such use is not authorized by the Practice Book.
The only allusion to summary judgment within Practice Book chapter 25 is contained within Practice Book § 25-46, which provides the authority for a party to move for summary judgment as to a " Writ of Habeas Corpus, " however, this provision does not apply to a postjudgment motion to modify and is irrelevant in this instance.
B
Genuine Issues of Material Fact Exist
Even if the plaintiff's motion for summary judgment is procedurally appropriate, it still must be denied because the plaintiff has failed to comply with the requirements of Practice Book § 17-45, because the evidence she has submitted in support of her motion fail to establish that there is no genuine issue of material fact that there has not been a substantial change in circumstances.
Practice Book § 17-45(a) provides: " A motion for summary judgment shall be supported by appropriate documents, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and other supporting documents." See Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 324 n.12, 77 A.3d 726 (2013).
As previously discussed, the defendant's postjudgment motion seeks a modification of child support based upon the substantial change in circumstances as a result of (1) the parties' minor child's enrollment in the Pomfret School, and (2) the improvement of the plaintiff's financial circumstances. Accordingly, in order for the plaintiff to prevail on her motion for summary judgment, she must submit evidence to establish that there is no genuine issue of material fact that, as to both grounds, there has not been a substantial change in circumstances. See Olson v. Mohammadu, supra, 310 Conn. 672.
In support of her motion for summary judgment, the plaintiff submits three attachments: the parties' minor child's enrollment contract with the Pomfret School, which is signed by the defendant; and the financial affidavits of the defendant, dated January 20, 2013, and April 2, 2014. Although the defendant's financial affidavits are offered to establish that there is no genuine issue of material fact that there has not been a substantial change in the defendant's personal financial circumstances, it fails to address all the grounds contained within the defendant's motion to modify. The plaintiff has not submitted any evidence regarding any change in her financial circumstances, thus, a genuine issue of material fact exists as to the second ground contained within the motion to modify. Further, the parties' minor child's enrollment contract with the Pomfret School fails to exclude any real doubt as to whether such enrollment creates a substantial change in circumstances. Consequently, the plaintiff has failed to meet her burden to establish that there is no genuine issue of material fact as to the defendant's postjudgment motion to modify.
Because the court denies the plaintiff's motion for summary judgment, the parties should engage in postjudgment discovery in accordance with the November 16, 2016 stipulation, and the court will consider the defendant's motion after an evidentiary hearing. See McKeon v. Lennon, 131 Conn.App. 585, 599, 27 A.3d 436, cert. denied, 303 Conn. 901, 31 A.3d 1178 (2011).
ORDER
The court denies the plaintiff's motion for summary judgment. It is not appropriate procedurally. In addition, even if the court found that it was appropriate, there is a " genuine issue of material fact" to be addressed before a court renders judgment.