Opinion
No. FST FA 05 4004889 S
March 12, 2007
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTIONS TO REARGUE BOTH DATED AUGUST 28, 2006 (#624.00 AND #625.00)
After a six-day hearing this court issued a Memorandum of Decision on August 11, 2006 (#564.10) in which this court entered thirteen separately numbered orders relating to pendente lite finances. This court also rendered a one-page Memorandum of Decision on August 11, 2006 (#565.10) relating to the payment of certain expenses from funds secured by a Pre-Judgment Remedy issued in this litigation. The plaintiff filed two separate Motions to Reargue addressed to both decisions and in particular, orders numbered IV and V. This court has granted reargument.
This court has applied the following standards:
[T]he purpose of a reargument is . . . to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts. (Internal quotation marks omitted.) Jaser v. Jaser, 37 Conn.App. 194, 202, 655 A.2d 790 (1995). It also may be used "to address alleged inconsistencies in the trial court's memorandum of decision as well as claims of law that the [movant] claimed were not addressed by the court." K.A. Thompson Electric Co. v. Wesco, Inc., 24 Conn.App. 758, 760, 591 A.2d 822 (1991). [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument.
Opoku v. Grant, 63 Conn.App. 686, 692 (2001).
These four standards can be summarized as: (1) Overlooking a decision or some controlling principle of law; (2) A misapprehension of facts; (3) Inconsistencies in the trial court's Memorandum of Decision or (4) Claims of law not addressed by the court.
The plaintiff has failed to allege any of these four standards in either Motion to Reargue. The plaintiff commenced the reargument hearing by asking this court to first consider the defendant's January 3, 2007 financial affidavit, wherein it states that the defendant received income in December 2006 of over $5,500,000 from Subchapter S distribution. This request is tantamount to seeking a modification. Any December 2006 payment could not have been known to the court in August 2006.
The defendant claims that the two Motions to Reargue are seeking modification in lieu of a reargument. He points out that in order to modify, the plaintiff must allege and prove a substantial change of circumstances and then the respective financial situation of both parties must be considered. The consideration of just the defendant's $5,500,000 income fails on both counts, since the court has not been given the opportunity on a motion to reargue to hear evidence on either issue. Borkowsky v. Borkowsky, 228 Conn. 729, 736 (1994).
In the August 11, 2006 decisions, the court made provisions for later disputes: "The Court retains continuing jurisdiction to conduct an accounting over said released funds, verification of the defendant's payments of child supervisors costs, and to enter any further orders necessary to effectuate the orders of even date herewith on Motions #314.01 and #315.01." "This court retains jurisdiction to conduct an accounting of all expenditures, payments and credits set forth in this court order." No such motions were filed by the plaintiff despite the court's willingness to consider those issues. The plaintiff did file one Motion for Contempt for the defendant's failure to pay supervisors fees while the child supervisor was sleeping. The trial court resolved this issue.
"A motion to reargue however is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument." Durkin Village Plainville, LLC v. Cunningham, 97 Conn.App. 640, 656 (2006); Opoku v. Grant, supra, 63 Conn.App. 692-93. In addition a Motion to Reargue is not a substitute for a Motion for Modification. Miller v. Miller, 16 Conn.App. 412, 415-16 (1988).
Both Motions to Reargue are granted and the relief requested in each of these two motions is denied.