Advance Release Opinions – Appellate Court – September 28

Reviews of Connecticut Appellate Court advance release opinions about divorce, a spite fence, and standing.

Divorce

Brochard v. Brochard – I’m not giving you much detail on this one – the second time in the Appellate Court for the Brochards – because the opinion is long and most of it is ho-hum. This quote from one of the many trial court judges gives you the idea: “[T]he enmity between the two of you has continued. . . . I mean, you’re both so adamant about who’s right about everything that you just keep, you know, wasting time and money and taking ridiculous positions.” Appellate Court affirmed, finding that (1) plaintiff was not in contempt of the non-emergency medical expenses or extracurricular activities provisions of the co-parenting agreement because defendant did not notify him of, or obtain his consent to, the proposed expenses in advance; (2) it would sua sponte invoke res judicata (prior appeal) to decline to consider defendant’s claim that plaintiff was in contempt of certain orders dealing with modification of the mortgage on the marital home (this part of the opinion was interesting because res judicata is not normally invoked sua sponte); (3) plaintiff was not in contempt of any order requiring him to reimburse defendant for mortgage payments because there was no such order; (4) plaintiff was not in contempt of an order requiring him to give defendant half of a refund on a joint income tax return because there was no such refund (plaintiff received a refund for a married-filing-separately return, but when the court ordered that corrected with amended married-filing-jointly return, there was tax owed); (5) trial court properly declined to modify the order directing the split for payment of guardian ad litem’s fees because there was no substantial change in either party’s finances since the court entered order; (6) there was no error in trial court’s orders modifying child support downward, and not modifying it upward; and (7) trial court did not miscalculate in granting defendant’s motion for contempt for failure to pay the correct amount of provisional alimony (defendant claimed that the trial court’s “correct amount” was too little).

Fredo v. Fredo – Defendant moved for modification of child support, claiming that child was living with an aunt, and asking the court to order that child support be paid directly to the aunt. Trial court granted plaintiff’s motion to dismiss for lack of subject matter jurisdiction because the motion for modification improperly asked for payment of child support to the aunt, a non-party to the action. Trial court simultaneously denied the motion for modification. Appellate Court reversed the dismissal for lack of subject matter jurisdiction because “[CGS] § 46b-1(4) vested the court with plenary and general jurisdiction over child support in the underlying matter, and § 46b-86(a) vested the court with continuing jurisdiction to modify the child support orders.” Appellate Court declined to consider the propriety of the denial of modification as moot because, by the time the parties argued the motion in the trial court, defendant had already abandoned her request that child support be paid to the aunt. Defendant’s claim for an accounting on an unrelated financial issue also was moot because plaintiff had since provided an accounting. And, since the motions to modify and for an accounting were moot, so was defendant’s claim that the trial court improperly quashed her subpoena of plaintiff related to those motions. Appellate Court reversed the award of attorney’s fees for having to deal with the motions to modify and for an accounting, and having to file a motion to quash the subpoena because trial court made no finding that any of defendant’s actions were taken in bad faith.

Peixoto v. Peixoto – Trial court granted plaintiff’s motion to increase her alimony. On appeal, defendant argued that the Supreme Court’s decision in Dan v. Dan precluded increasing alimony based on nothing more than a postdissolution increase in the payor’s income. Appellate Court affirmed, finding that Dan permits increasing alimony on an increase in the payor’s income if there are exceptional circumstances, as there were in this case: At the time of dissolution, trial court had minimum knowledge of defendant’s financial circumstances because he did not appear in the action, provide a financial affidavit, or appear at the dissolution hearing, and the parties did not present a written agreement to the court.

Spite Fence

Errichetti v. Botoff – Botoffs put up a fence through a low lying wooded/wetland area separating their property from Errichetti’s. The fence didn’t keep the Botoffs’ kids, or anyone else, in or out of the Botoffs’ yard because it didn’t connect to anything – anyone in the Botoffs’ yard could just walk around the fence into Errichetti’s yard and vice versa. The fence did not provide any privacy because it was lower than Errichetti’s house – if Errichetti was standing in his yard, he could see over the fence and into the Botoffs’ yard. The fence impaired Errichetti’s use and enjoyment of his property because, though it was not ugly as far as stockade fences go, it wasn’t as enjoyable as the natural scenery Errichetti had before. Trial court found the fence to be a “malicious erection … intended to annoy and injure any owner or lessee of adjacent land in respect to his use or disposition of the same” and granted an injunction under CGS § 52-480 requiring the Botoffs to remove it and restore the area to its previous condition. Appellate Court affirmed.

Standing

Bongiorno v. Capone – Bongiorno and Capone each owned 50% of an LLC. After they agreed that Bongiorno would buy Capone’s interest, Capone withdrew $17,000 from the LLC’s bank account. Bongiorno sued for breach of contract and statutory theft. Trial court found for Bongiorno on both claims and awarded him $17,000 for breach of contract and treble that for statutory theft (less $17,000 to avoid double recovery for breach of contract). Appellate Court affirmed as to the breach of contract claim, but only for $8,500, finding that since Bongiorno was buying only a 50% interest in the LLC, he was buying only a 50% interest in the $17,000 Capone withdrew. Appellate Court reversed as to the statutory theft claim because that injury was to the LLC, not Bongiorno, so Bongiorno lacked standing to bring the claim in his individual capacity. Appellate Court declined to consider Capone’s claim that waiver-of-suit provisions in the buy-sell documents protected him from Bongiorno’s claims because Capone did not raise it at trial.