Hamburg v. Hamburg , 182 Conn. App. 332 ( 2018 )

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BARBARA B. HAMBURG v. JEFFREY R. HAMBURG
(AC 38225)
DiPentima, C. J., and Lavine and Prescott, Js.
Syllabus
The defendant, whose marriage to the plaintiff previously had been dissolved
pursuant to a foreign dissolution judgment, appealed to this court from
the judgments of the trial court ordering him to pay to the substitute
plaintiff, R, the temporary administrator of the estate of the deceased
plaintiff, certain funds that the defendant had misappropriated from his
children’s education accounts, and granting the motion to intervene
filed on behalf of his daughter, A. The foreign dissolution judgment and
a subsequent stipulated agreement both required the defendant to place
funds for the children’s education into certain accounts. R filed an
application for order to show cause as to why an order should not enter
that the defendant, inter alia, make payments to R to reimburse funds the
defendant had misappropriated from the children’s education accounts.
Subsequently, the defendant filed a motion to dismiss, in which he
claimed that R lacked standing and, therefore, that the court lacked
subject matter jurisdiction over that portion of the action. The trial court
denied the defendant’s motion to dismiss, granted in part R’s application
for order to show cause, and ordered the defendant to make payments
on the debt owed to the children. On appeal, the defendant claimed
that the trial court improperly determined that because he previously
had failed to challenge R’s standing at the time R filed a motion to be
substituted as the party plaintiff, he could not oppose the application
for an order to show case on the ground of standing. Held:
1. The trial court improperly denied the defendant’s motion to dismiss filed
in response to R’s application for order to show cause, that court having
erroneously concluded that R had standing to prosecute an action for
the repayment of the funds that the defendant took from the children’s
education accounts: that court improperly determined that because the
defendant did not object to R’s motion to be substituted as the plaintiff,
he was precluded from questioning R’s standing to pursue the moneys
owed the children, as the issue, at the time R filed the motion to be
substituted as the plaintiff, was whether R had standing to pursue the
decedent’s claims against the defendant that had been reduced to judg-
ment, whereas the standing issue raised by the application for order to
show cause concerned whether R, on behalf of the decedent’s estate,
could pursue the children’s claims against the defendant, which had not
previously been raised or litigated, and, therefore, the defendant properly
raised the issue of standing, which may be raised at any time; moreover, R
failed to demonstrate standing with respect to the moneys the defendant
owed the children, as R did not point to any evidence presented demon-
strating a personal and direct interest in the money the defendant owed
his children, R did not claim the existence of a fiduciary relationship
with the children, and the court made no factual finding that R had a
direct and personal interest in the moneys or the right to collect the
funds on behalf of the children, unlike the direct interest R had in the
money the defendant owed the decedent.
2. The trial court properly granted the motion to intervene filed on behalf
of A: the evidence in the record showed that A, who had reached the
age of majority, had a direct and personal interest in having the defendant
reimburse her education funds, as the separation agreement and the
subsequent stipulated agreement both provided that the children were
to be the beneficiaries of certain accounts intended to fund their educa-
tional expenses through postsecondary school, the stipulated agreement
further provided that any remaining funds in the account were to be
divided between the children equally once they graduated from college,
and no other party had standing to pursue repayment from the defendant
of the funds he took from the education accounts for his own use;
moreover, the defendant failed to establish his claim that the motion
to intervene should have been denied because it was not timely, and
he failed to show that he was prejudiced by the court’s granting of A’s
motion to intervene to obtain the moneys he took from her education
account.
Argued January 3—officially released June 5, 2018
Procedural History
Action to enforce a foreign judgment of dissolution,
brought to the Superior Court in the judicial district
of New Haven, where the court, Abery-Wetstone, J.,
rendered a modified judgment in accordance with an
agreement of the parties; thereafter, the court, Abery-
Wetstone, J., granted the motion to substitute Richard
Beach, the temporary administrator of the estate of the
named plaintiff, as the plaintiff; subsequently, the court,
Emons, J., denied the defendant’s motion to dismiss
the substitute plaintiff’s motion to show cause for the
defendant’s failure to comply with certain orders and
granted in part the substitute plaintiff’s motion to show
cause, and the defendant appealed to this court; there-
after, the court, Emons, J., granted the motion to inter-
vene filed by Barbara A. Hamburg, and the defendant
filed an amended appeal with this court; subsequently,
the court, Emons, J., denied the defendant’s motion for
an articulation. Reversed in part; judgment directed in
part; further proceedings.
Chris R. Nelson, for the appellant (defendant).
Richard W. Callahan, for the appellees (substitute
plaintiff and intervening plaintiff).
Opinion
LAVINE, J. In this protracted postmarital dissolution
action, the defendant, Jeffrey R. Hamburg, appeals from
the judgments of the trial court (1) ordering him to
pay to the estate of the deceased plaintiff, Barbara B.
Hamburg (decedent), funds he had misappropriated
from his children’s education accounts, and (2) granting
the motion to intervene filed on behalf of his daughter,
Barbara A. Hamburg (Ali). On appeal, the defendant
claims that the court improperly (1) denied his motion
to dismiss for lack of subject matter jurisdiction and
(2) granted the motion to intervene. We agree that the
trial court erred when it denied the defendant’s motion
to dismiss but conclude that it properly granted Ali’s
motion to intervene. We, therefore, reverse in part and
affirm in part the judgments of the trial court.
A lengthy factual and procedural history underlies
the defendant’s appeal. The decedent and the defendant
were married in March, 1989, and had two children: a
son, Madison Hamburg, born in 1991, and a daughter,
Ali, born in 1993. In 2001, the decedent commenced an
action for dissolution of marriage in the Superior Court
of Fulton County, Georgia, where the decedent and the
defendant reached an agreement (separation
agreement) that was incorporated in the Georgia court’s
September 5, 2002 judgment dissolving their marriage.
Among other things, the judgment required the defen-
dant to pay the decedent alimony and child support
and to place funds for the children’s education in cer-
tain accounts.1
On April 5, 2005, the decedent filed a certified copy
of the Georgia dissolution judgment in our Superior
Court pursuant to General Statutes § 46b-71,2 and the
trial court domesticated the Georgia judgment. The
decedent and the defendant subsequently filed numer-
ous motions for contempt in which they claimed, pri-
marily, that the other had failed to comply with his or
her financial obligations under the separation
agreement. On March 6, 2009, the court, Markle, J.,
issued a memorandum of decision with respect to the
parties’ postjudgment motions. The court found that
the defendant was in wilful violation of the dissolution
judgment that required him to pay the decedent $2000
per month for child support for the period of October,
2007, through February, 2009. The child support arrear-
age was $32,000 at that time. The court ordered the
defendant to pay the decedent $16,000 on or before
March 31, 2009, and to pay the decedent an additional
$1000 a month in child support until the arrearage was
paid.The court, however, denied the defendant’s motion
to modify his child support obligation, after finding that
there had been no substantial change downward in his
financial circumstances. In fact, the court found that his
income had increased. With respect to the decedent’s
motion for contempt for the defendant’s failure to pay
educational and medical expenses for the children, the
court ordered the decedent and the defendant to family
relations for mediation.3
During a hearing on June 4, 2009, Judge Markle heard
evidence that, in 2005, there was $150,000 in the educa-
tion account of each child. On the date of the hearing,
the defendant testified that there was then remaining
$10,050 in Madison Hamburg’s account and $23,000 in
Ali’s account. He also testified that he had taken the
children’s funds for his own use. The court again found
the defendant in contempt and ordered him incarcer-
ated until he paid $8000 to purge the contempt.
On November 24, 2009, the decedent and the defen-
dant appeared before the court on a motion for con-
tempt and a motion to modify the dissolution judgment
that had been filed by the decedent. The documents
presented to the court demonstrated that the defendant
had taken funds from the children’s education accounts
for his personal use. After he was advised by counsel,
the defendant invoked his right to remain silent. At the
request of the parties, the court continued the matter
to permit the decedent and the defendant to negotiate
a settlement.
On December 23, 2009, the court, Abery-Wetstone,
J., opened the judgment of dissolution, and accepted
a stipulation (2009 stipulation) from the decedent and
the defendant that modified portions of the separation
agreement, particularly custody and their respective
financial obligations.4 The 2009 stipulation required the
defendant to make payments on the arrearage owed
the decedent pursuant to a court-ordered schedule. The
court ordered the decedent and the defendant to appear
in court periodically so it could monitor the defendant’s
compliance with the 2009 stipulation. On February 3,
2010, during a compliance hearing, the defendant, who
previously had invoked his right to remain silent with
respect to the children’s education funds, did so again.
The court found that the defendant had the ability to
pay the sums ordered under the 2009 stipulation and
found him in wilful contempt for failing to pay. The
court ordered him to reinstate his life insurance policy
and provide the decedent with proof of the policy’s
beneficiaries. The court warned the defendant that if
he failed to comply with its orders, he would go to jail.
The defendant and counsel for the parties appeared
in court on March 3, 2010, but the decedent did not.
She later was discovered at her home, murdered. On
March 12, 2010, Richard Beach, the temporary adminis-
trator of the decedent’s estate, filed a motion to be
substituted as the party plaintiff (substitute plaintiff).5
The defendant voiced no objection to the motion to
substitute, and Judge Abery-Wetstone granted it on
March 17, 2010. At the time, however, the court ques-
tioned whether the children should have counsel to
protect their rights under the 2009 stipulation. Counsel
for the estate did not agree that the children needed
their own counsel. At that time, the defendant’s bank-
ruptcy counsel informed the court that the defendant
had, that day, filed a petition in bankruptcy.
On March 24, 2010, the defendant and the substitute
plaintiff appeared before Judge Markle to enter into an
agreement (2010 agreement).6 The court approved the
2010 agreement.7
Between April 23, 2010, and February 1, 2012, the
defendant and the substitute plaintiff appeared in court
many times for compliance hearings.8 On November 7,
2011, the substitute plaintiff filed a motion for contempt
against the defendant, which was heard by the court,
Conway, J., on February 1, 2012. During the hearing,
the substitute plaintiff represented that the defendant
had not repaid any of the moneys he had taken from
the children’s education funds. The court found the
defendant in contempt and ordered him committed to
the custody of the Commissioner of Correction and that
he pay $50,000 to purge the contempt. On April 18, 2012,
the substitute plaintiff agreed to have the record reflect
that $20,000 had been tendered toward the $50,000
purge amount, and requested that the court stay the
order of incarceration. The court, Gould, J., ordered
the defendant released from incarceration and that he
not leave either Connecticut or New York without a
court order.9 On June 5, 2012, Judge Gould also ordered
the defendant to continue to pay the estate $500 per
week toward the remaining $30,000 purge amount. The
defendant did not comply.
On March 12, 2015, the substitute plaintiff filed an
application for order to show cause why an order should
not enter that the defendant (1) reimburse the estate for
the fees and costs it incurred to defend the bankruptcy
action; (2) commence making payments on the debt
owed to the children; and (3) provide proof that he is
maintaining life insurance to secure the judgment debt.
On May 13, 2015, in response to the substitute plaintiff’s
application for order to show cause, the defendant filed
a motion to dismiss, claiming that the substitute plaintiff
lacked standing and, therefore, the court lacked subject
matter jurisdiction over that portion of the action.
In his memorandum of law in support of his motion
to dismiss, the defendant argued with respect to the
claims made in the application for order to show cause
that the substitute plaintiff had failed to demonstrate
why his ‘‘obligations’’ inure to its benefit and how the
substitute plaintiff is aggrieved by his actions or inac-
tions in the context of the present case. He argued
that the substitute plaintiff is neither classically nor
statutorily aggrieved by the debt he owes the children
and his failure to procure life insurance. The defendant
also argued that the substitute plaintiff lacks standing
to pursue a claim against him for the claimed attorney’s
fees and costs to defend the bankruptcy proceeding.
Moreover, the defendant argued that the substitute
plaintiff could not rely on the 2010 agreement and
related court order, as the order was improper and void
as a matter of law. More specifically, the defendant
argued that upon the decedent’s death, the court lacked
subject matter jurisdiction to enter an order approving
the 2010 agreement.
The substitute plaintiff objected to the motion to
dismiss on the grounds that ‘‘(1) [the] [s]ubstituted
plaintiff is [a] proper party; (2) [r]es judicata/collateral
estoppel; (3) [the] [s]ubstituted party has interests;
[and] (4) [p]ublic policy.’’ On June 17, 2015, the court,
Emons, J., denied the defendant’s motion to dismiss
after finding that the ‘‘children’s claim to the money
is solely through the estate.’’10 The court scheduled a
hearing on the merits of the application to show cause.
On July 14, 2015, the defendant filed an objection to
the substitute plaintiff’s application for order to show
cause in which he claimed that he was sixty-six years
old, has a debilitating back injury, was unemployed,
and did not have the financial ability to pay the funds
requested by the substitute plaintiff. He also claimed
that the substitute plaintiff’s request is not enforceable
on the ground of laches, his obligation to pay funds to
the estate ended when the children reached the age of
majority, and the substitute plaintiff had no authority
to prosecute a motion on behalf of the children. The
defendant also objected to the use of any funds intended
to benefit the children to pay the counsel fees of the
estate. Judge Emons again found that the estate,
through the substitute plaintiff, had standing to pursue
the judgment debt and, on July 14, 2015, ordered the
defendant to pay to counsel for the estate $500 per
week to be applied toward the $324,000 plus 4 percent
annual interest that the defendant owed the children.
The court ordered counsel for the estate to place the
moneys the defendant paid in a trust account until fur-
ther order of the court. The defendant appealed from
the judgment on August 3, 2015.11
On September 9, 2015, counsel for the estate filed a
motion to intervene on Ali’s behalf for the limited pur-
pose of asserting her rights and interests ‘‘in the enforce-
ment of court orders related to the [Uniform Gifts to
Minors Act] funds that are the subject of this court’s
jurisdiction.’’12 The defendant objected to Ali’s motion
to intervene as a matter of right on the ground that she
lacked standing to do so and argued that she cannot
satisfy the intervention test set forth in Kerrigan v.
Commissioner of Public Health, 279 Conn. 447, 456–57,
904 A.2d 137 (2006). He further argued that, although
he does not agree that the substitute plaintiff has stand-
ing to recoup the funds he took from the children’s
education accounts, given the court’s ruling on the
application for order to show cause, he claimed that
Ali’s interest in the funds was being represented ade-
quately by the estate and, therefore, Ali did not need
to be made a party. He also argued that by permitting
Ali to intervene, multiple parties would be pursuing him
for the moneys he took from the children’s education
fund. Judge Emons granted Ali’s motion to intervene.
The defendant amended his appeal to challenge the
court’s granting of Ali’s motion to intervene.
On appeal, the defendant claims that (1) the substi-
tute plaintiff lacks standing to prosecute the present
action for repayment of moneys he owes the children
and (2) Ali failed to demonstrate that she has a direct
and substantial interest in the case and, therefore, she
also lacks standing. Standing is at the core of each of
the defendant’s claims.13 We agree with the defendant
that the substitute plaintiff lacks standing to prosecute
repayment of the children’s education funds and, there-
fore, the court improperly denied the motion to dismiss
and granted the application for order to show cause
requiring him to make payments to counsel for the
estate to reimburse the moneys he owes the children.
We conclude, however, that the court properly granted
Ali’s motion to intervene, as she has a direct interest
in the repayment of the education funds, but that she
must assert her rights against the defendant in the civil,
not family, court.
We begin by setting forth the legal principles regard-
ing standing. ‘‘Standing is the legal right to set judicial
machinery in motion. One cannot rightfully invoke the
jurisdiction of the court unless he [or she] has, in an
individual or representative capacity, some real interest
in the cause of action, or a legal or equitable right, title
or interest in the subject matter of the controversy.
. . . [When] a party is found to lack standing, the court
is consequently without subject matter jurisdiction to
determine the cause. . . . We have long held that
because [a] determination regarding a trial court’s sub-
ject matter jurisdiction is a question of law, our review
is plenary. . . . In addition, because standing impli-
cates the court’s subject matter jurisdiction, the issue
of standing is not subject to waiver and may be raised
at any time. . . .
‘‘Because lack of standing implicates the trial court’s
subject matter jurisdiction, it is properly raised by way
of a motion to dismiss. . . . Our standard of review of
a trial court’s findings of fact and conclusions of law
in connection with a motion to dismiss is well-settled.
A finding of fact will not be disturbed unless it is clearly
erroneous. . . . [If] the legal conclusions of the court
are challenged, we must determine whether they are
legally and logically correct and whether they find sup-
port in the facts . . . . Thus, our review of the trial
court’s ultimate legal conclusion and resulting [denial]
of the motion to dismiss will be de novo.’’ (Citations
omitted; footnote omitted; internal quotation marks
omitted.) Property Asset Management, Inc. v. Lazarte,
163 Conn. App. 737, 745–46, 138 A.3d 290 (2016).
‘‘A motion to dismiss [for lack of standing] . . .
properly attacks the jurisdiction of the court, essentially
asserting that the plaintiff cannot as a matter of law
and fact state a cause of action that should be heard
by the court. . . . A motion to dismiss tests, inter alia,
whether, on the face of the record, the court is without
jurisdiction. . . .
‘‘Standing is not a technical rule intended to keep
aggrieved parties out of court; nor is it a test of substan-
tive rights. Rather it is a practical concept designed to
ensure that courts and parties are not vexed by suits
brought to vindicate nonjusticiable interests and that
judicial decisions which may affect the rights of others
are forged in hot controversy, with each view fairly and
vigorously represented.’’ (Citations omitted; internal
quotation marks omitted.) Emerick v. Glastonbury, 145
Conn. App. 122, 127–28, 74 A.3d 512 (2013), cert. denied,
311 Conn. 901, 83 A.3d 348 (2014).
‘‘The requirement of directness between the injuries
claimed by the plaintiff and the conduct of the defen-
dant also is expressed, in our standing jurisprudence,
by the focus on whether the plaintiff is the proper party
to assert the claim at issue.’’ (Emphasis added.) Ganim
v. Smith & Wesson Corp., 258 Conn. 313, 347, 780 A.2d
98 (2001). ‘‘The plaintiff bears the burden of proving
subject matter jurisdiction, whenever and however
raised.’’ (Internal quotation marks omitted.) Emerick
v. Glastonbury, supra, 145 Conn. App. 128.
I
The defendant first claims that the court erroneously
concluded that the substitute plaintiff has standing to
prosecute an action for repayment of the funds he took
from the children’s education accounts. He argues,
among other things, that the court improperly denied
his motion to dismiss by concluding that the defendant
had a prior opportunity to raise his lack of standing
claim at the time the temporary administrator filed his
motion to be substituted as the party plaintiff. He also
argues that the substitute plaintiff failed to prove that
he was authorized to act on behalf of the children.
We agree.
A
The defendant claims that the court improperly deter-
mined that, because he previously had failed to chal-
lenge the standing of the substitute plaintiff at the time
he filed a motion to be substituted as the party plaintiff,
the defendant could not oppose the application for
order to show cause on the ground of standing. We
agree because, at the time the substitute plaintiff filed
a motion to be substituted, the issue was whether he
had standing to pursue the decedent’s claims against
the defendant that had been reduced to judgment. The
standing issue raised by the application for order to
show cause is whether the substitute plaintiff may pur-
sue the children’s claims against the defendant.
In his motion to dismiss, the defendant argued that
the substitute plaintiff had failed to demonstrate in its
application for order to show cause why his ‘‘obliga-
tions’’ inure to the benefit of the substitute plaintiff and
how the substitute plaintiff, acting on behalf of the
estate, is aggrieved by his actions or inactions in the
context of the present case, i.e., the moneys owed to the
children. In other words, he claimed that the substitute
plaintiff had failed to demonstrate that he was either
statutorily or classically aggrieved.
In opposing the defendant’s motion to dismiss, the
substitute plaintiff argued on the ground of collateral
estoppel that because the defendant did not object to
his motion to be substituted as the party plaintiff in
March, 2010, the defendant was precluded from ques-
tioning the substitute plaintiff’s standing to pursue the
moneys owed the children. Judge Emons agreed with
the substitute plaintiff, stating that the defendant ‘‘had
ample opportunity to litigate the issue as to whether
or not there was standing of the estate’’ when Judge
Abery-Wetstone heard and ruled on the motion to sub-
stitute. Unlike the issue in the application for order to
show cause, however, the issue before Judge Abery-
Wetstone was whether the substitute plaintiff had
standing to pursue compliance with the court’s orders
regarding the decedent and her estate, not the children’s
right to their education funds. At the time the motion
to substitute the party plaintiff was granted, there was
a judgment against the defendant for the tens of thou-
sands of dollars in past due alimony and child support
he owed the decedent. In its application for order to
show cause, the substitute plaintiff, on behalf of the
decedent’s estate, was pursuing the defendant for the
judgment debt he owed the children for the moneys
he took from their respective education funds. As we
discuss in part I B of this opinion, the substitute plaintiff
lacked standing to enforce the judgment related to the
children’s money, and the defendant, therefore, prop-
erly raised the issue of standing and the court’s subject
matter jurisdiction.
On appeal, the substitute plaintiff claims that Sousa
v. Sousa, 322 Conn. 757, 143 A.3d 578 (2016), controls
the defendant’s claim.14 We disagree, as Sousa is proce-
durally distinct. The issue in Sousa was whether it was
‘‘entirely obvious’’ that the trial court lacked subject
matter jurisdiction to open a stipulated judgment
between the parties, who were former husband and
wife. (Internal quotation marks omitted.) Id., 761. The
parties in Sousa did not agree to open the modified
dissolution judgment. The decedent and the defendant
in the present case, however, agreed to open the dissolu-
tion judgment and enter into the 2009 stipulation. Judge
Abery-Wetstone accepted the stipulation as a judgment
of the court. In his motion to dismiss, the defendant is
not challenging the court’s subject matter jurisdiction
over the money he owed the decedent. He also is not
challenging the substitute plaintiff’s standing to pursue
the debt he agreed to pay the decedent. With regard to
the motion for order to show cause, the defendant is
challenging the substitute plaintiff’s standing to pursue
the moneys he owes his children for having used the
funds in their education accounts for himself.
The issue of whether the substitute plaintiff had
standing to pursue the moneys the defendant owes his
children was not raised or litigated prior to May, 2015,
when the defendant filed his motion to dismiss. There
is no legal basis to preclude the defendant from filing
a motion to dismiss the application for order to show
cause. Moreover, standing implicates the court’s subject
matter jurisdiction and may be raised at any time. See,
e.g., Manning v. Feltman, 149 Conn. App. 224, 231, 91
A.3d 466 (2014). ‘‘Subject matter jurisdiction involves
the authority of the court to adjudicate the type of
controversy presented by the action before it. . . . [A]
court lacks discretion to consider the merits of a case
over which it is without jurisdiction . . . . The subject
matter jurisdiction requirement may not be waived by
any party, and also may be raised by a party, or by
the court sua sponte, at any stage of the proceedings,
including on appeal.’’ (Internal quotation marks omit-
ted.) O’Reilly v. Valletta, 139 Conn. App. 208, 212–13,
55 A.3d 583 (2012), cert. denied, 308 Conn. 914, 61 A.3d
1101 (2013).
B
The defendant also claims that the court improperly
denied his motion to dismiss because the substitute
plaintiff failed to prove, and the court did not find,
that the substitute plaintiff had a direct interest in the
moneys he took from the children’s education funds.
We agree.
In his brief, the defendant argues that at the time
the court heard his motion to dismiss, the substitute
plaintiff did not present any evidence of standing to
pursue the moneys he owes his children or under what
statutory or other right the substitute plaintiff may col-
lect the money on behalf of the children.15 As previously
noted, ‘‘[a] plaintiff has the burden of proof with respect
to standing.’’ Emerick v. Glastonbury, supra, 145 Conn.
App. 128. The substitute plaintiff has not directed us
to any evidence presented at the time the court ruled
on the motion to dismiss that would demonstrate a
personal and direct interest in the money the defendant
owes the children, and our review of the record did not
disclose any such evidence.
The substitute plaintiff also does not claim that he
has a fiduciary relationship with the children. ‘‘It is the
infant, and not the next friend, who is the real and
proper party. The next friend, by whom the suit is
brought on behalf of the infant, is neither technically
nor substantially the party, but resembles an attorney,
or a guardian ad litem, by whom a suit is brought or
defended in behalf of another.’’ (Emphasis omitted;
internal quotation marks omitted.) Lowe v. Shelton, 83
Conn. App. 750, 756, 851 A.2d 1183, cert. denied, 271
Conn. 915, 859 A.2d 568 (2004). More importantly, how-
ever, the court made no factual finding that the substi-
tute plaintiff has a direct and personal interest in those
moneys or the right to collect the funds on behalf of
the children, unlike a direct interest in the money the
defendant owed the decedent. The substitute plaintiff,
therefore, failed to carry his burden to demonstrate
standing with respect to the moneys the defendant owes
his children.
For the foregoing reasons, the court improperly
denied the defendant’s motion to dismiss filed in
response to the application for order to show cause.
The case is remanded to the trial court with direction
to grant the motion to dismiss and to vacate the order
that the defendant make periodic payments to counsel
for the estate regarding the debt he owes the children.
II
The defendant’s second claim is that the court
improperly granted the motion to intervene filed on
behalf of his daughter. We disagree.
On September 9, 2015, counsel for the estate filed a
postjudgment motion to intervene on behalf of Ali. The
motion was predicated on General Statutes § 52-10716
and the corresponding rules of practice, i.e., Practice
Book §§ 25-6 and 9-18. The motion to intervene stated
in part that the undersigned counsel moved on behalf
of Ali to intervene for the limited purpose of asserting
her rights and interest in the enforcement of the orders
related to her education funds. Ali had relied on the
substitute plaintiff to advance her interests, but in light
of the defendant’s assertion that the substitute plaintiff
lacks standing, she moved to intervene.
Judge Emons determined that the defendant’s ‘‘obli-
gation goes to the estate,’’17 and that is the reason that
the court denied the motion to dismiss. To the extent,
however, that the defendant argued that ‘‘the money
now flows to the children, who have now reached the
age of majority,’’ the court found that Ali ‘‘does have a
sufficient interest and that the legal requirements are
met . . . .’’ The court, therefore, granted Ali’s motion
to intervene.
On appeal, the defendant claims that the court
improperly granted Ali’s motion to intervene as a matter
of right because she not only failed to meet her burden
to establish her right to intervene, but also the motion
to intervene was untimely. We disagree.
To establish that he or she is entitled to intervene as
a matter of right, ‘‘the proposed intervenor must satisfy
a well established four element conjunctive test: [T]he
motion to intervene must be timely, the movant must
have a direct and substantial interest in the subject
matter of the litigation, the movant’s interest must be
impaired by disposition of the litigation without the
movant’s involvement and the movant’s interest must
not be represented adequately by any party to the litiga-
tion.’’ (Internal quotation marks omitted.) BNY Western
Trust v. Roman, 295 Conn. 194, 205, 990 A.2d 853 (2010);
see also Kerrigan v. Commissioner of Public Health,
supra, 279 Conn. 456–57.
‘‘A proposed intervenor must allege sufficient facts,
through the submitted motion and pleadings, if any, in
order to make a showing of his or her right to intervene.
The inquiry is whether the claims contained in the
motion, if true, establish that the proposed intervenor
has a direct and immediate interest that will be affected
by the judgment.’’ Washington Trust Co. v. Smith, 241
Conn. 734, 747, 699 A.2d 73 (1997), overruled in part on
other grounds by Kerrigan v. Commissioner of Public
Health, supra, 279 Conn. 455.
On the basis of our review of the record, beginning
with the separation agreement, the children were to be
the beneficiaries of certain financial accounts intended
to fund their private school and college educations. See
footnote 1 of this opinion. On December 23, 2009, the
decedent and the defendant agreed to open the dissolu-
tion judgment and enter into the 2009 stipulated judg-
ment. According to the 2009 stipulation, the decedent
was to open an account for the benefit of the children
and the account was to be used to pay their educational
expenses through postsecondary school, excluding any
graduate studies. Once the children were graduated
from college, any funds in the account were to be
divided between the children equally. See footnote 4
of this opinion. The evidence in the record discloses
Ali’s direct and substantial interest in the education
account. No other party has standing to pursue repay-
ment from the defendant of the funds he took from the
accounts for his own use.18 The substitute plaintiff has
no fiduciary relationship with the children and, there-
fore, cannot adequately represent them. Because Ali has
a direct and personal interest in having the defendant
reimburse the education funds, she has carried her bur-
den and the court properly granted her motion to
intervene.
The defendant also argues that Ali’s motion to inter-
vene should have been denied because it was not timely,
having not been filed until after he took the present
appeal. As the substitute plaintiff points out, the motion
to intervene was filed after the defendant took an appeal
because he appealed from the court’s denial of his
motion to dismiss on the ground that the substitute
plaintiff lacked standing. The defendant has not
explained how, if at all, he has been prejudiced by the
court’s granting of Ali’s motion to intervene to obtain
the money the defendant—her father—took from an
account that was to be used to pay for her education
through college. Although the defendant was ordered to
repay the moneys he took from the children’s education
accounts beginning on January 1, 2010, several courts
have found him in wilful contempt for failing to do so.
The defendant opposed the substitute plaintiff’s effort
to pursue repayment of the education funds on the
ground that he lacked standing and, therefore, Ali filed
a motion to intervene to protect her interest in the
funds. The court, therefore, properly granted the motion
to intervene.
The judgment denying the motion to dismiss is
reversed and the case is remanded with direction to
grant the motion to dismiss and to vacate the order
that the defendant make periodic payments to counsel
for the estate regarding the debt he owes the children.
The judgment with respect to the motion to intervene
is affirmed and the case is remanded for further pro-
ceedings.
In this opinion the other judges concurred.
1
In addition, the defendant agreed to maintain life insurance ‘‘in an amount
equal to the remaining balance of his minimum obligations for child support
. . . . Said insurance policy or policies shall remain in full force and effect,
naming [the decedent] and the minor children as beneficiary, until [the
defendant] has no further financial obligation for any child . . . .’’
With respect to the children’s education funds, the decedent and the
defendant agreed that each of them ‘‘shall maintain any and all custodial
accounts held in his or her individual name for the benefit of the children.
Said accounts shall be used only for the educational expenses of the children
. . . . Notwithstanding the foregoing, [the defendant] shall not utilize said
custodial accounts for payment of his child support obligation . . . . Each
party shall provide the other party a copy of the statement for all custodial
accounts in which he or she is custodian on a quarterly basis.’’
2
General Statutes § 46b-71 (a) provides in relevant part: ‘‘Any party to an
action in which a foreign matrimonial judgment has been rendered, shall
file, with a certified copy of the foreign matrimonial judgment, in the court
in this state in which enforcement of such judgment is sought . . . .’’
3
On May 14, 2009, Judge Markle ordered the defendant to pay the decedent
certain counsel fees and to provide counsel for the decedent with seven
years’ worth of records regarding the children’s education funds. On June
3, 2009, the court found the defendant in wilful contempt for failing to
produce records regarding the education funds, and for failing to make
any payments for current child support and toward the arrearage owed
the decedent.
4
The relevant portions of the 2009 stipulation provided in part:
‘‘1. . . .
‘‘b. The defendant shall pay to the [decedent] the sum of $245 per week
. . . for the benefit of the minor child [Ali] . . . .
‘‘c. The [decedent] shall open an account for the benefit of the minor
children. The account shall be used to pay for the educational expenses of
the minor children, through postsecondary school, excluding any graduate
studies. Once both children have graduated from college, the balance of
any funds in the account shall be divided between the children 50/50.
‘‘d. The defendant shall pay to the [decedent] $324,000, plus 4 [percent]
interest per annum, until the sum is paid in full. [The decedent] shall deposit
the payments received into the account referenced above for the benefit of
the minor children. The defendant shall pay the $324,000 plus interest at
the following nonmodifiable rate . . . .
‘‘i. The defendant shall maintain, until all financial obligations to the
[decedent] and children under the judgment and orders of the court are
paid in full, life insurance in the amount of $600,000, name the [decedent]
and the minor children as irrevocable, equal beneficiaries. . . .
‘‘2. Defendant owes the [decedent] the following additional sums:
‘‘a. $30,000 in child support arrears;
‘‘b. $30,000 in attorney fees and costs;
‘‘c. $25,000 toward unreimbursed medical and health related expenses;
and,
‘‘d. $25,000 toward the tuition costs for the parties’ son for the payment
due in January.
‘‘e. $41,000 toward educational costs for [the] children paid by [the dece-
dent]. . . .
‘‘5. These orders are domestic support orders, and are in the nature of
support, and are nondischargeable in bankruptcy. Defendant shall hold the
[decedent] harmless and indemnify the [decedent] for any and all expenses
and fees she incurs to respond to any bankruptcy petition by the defendant.’’
The court canvassed the parties and each of them stated that the 2009
stipulation was fair, reasonable, and in the best interests of their children.
Note that in December, 2009, Madison Hamburg was eighteen.
5
At trial and on appeal, the parties use the terms substitute plaintiff and
decedent’s estate interchangeably. Because an estate is not a legal entity;
see Estate of Rock v. University of Connecticut, 323 Conn. 26, 32, 144 A.3d
420 (2016); and the substitute plaintiff was acting in a representative capacity
on behalf of the estate, we refer to the substitute plaintiff in this opinion.
See Silver v. Holtman, 114 Conn. App. 438, 443, 970 A.2d 740 (2009) (fiduciary
of estate has standing in representative capacity to assert rights of estate).
6
The 2010 agreement provided in part:
‘‘[1.] The parties agree that the court has continuing jurisdiction over
compliance with the orders of the court. . . .
‘‘4. The parties agree that under paragraph 1 (d) of the 12/23/09 order,
the payment shall be reduced to $4500 ($1,061.67 shall be paid as current
child support, which the substitute plaintiff shall use for the benefit of the
minor child, and deliver to any guardian [of the minor child] once appointed
by the probate court; and $3,438.33 to be applied toward the replenishment
of the $324,000 debt owed to [Uniform Gifts to Minors Act]), subject to a
final accounting. . . .
‘‘7. The defendant shall immediately apply for life insurance in an amount
required by the court order with at least 5 insurance companies within 7
days. He shall bring proof of the applications to the next court date. . . .
‘‘10. All other orders, not herein modified shall remain in full force and
effect.
‘‘11. All outstanding discovery orders shall be complied with by 3/31/10.’’
(Emphasis added.)
7
At the time the court accepted the 2010 agreement, Judge Markel stated
for the record: ‘‘First and foremost, pursuant to the first agreement that the
parties agree that the court has continuing jurisdiction over compliance
with the prior court orders entered by this court. . . . After reviewing that
law, the court finds that it can accept the agreement of the parties that the
court has continuing jurisdiction over the compliance of the outstanding
court orders on this date.’’ (Emphasis added.)
8
On July 29, 2011, and again on May 2, 2012, the state charged the defen-
dant with larceny in the first degree for his misappropriation of the children’s
education funds. See State v. Hamburg, N23N-CR-11-0121767-S, and State
v. Hamburg, N23N-CR-12-0128767-S. The trial court in the criminal matters,
Keegan, J., permitted the defendant to enter the accelerated rehabilitation
program on September 10, 2013, and further ordered him to comply with
the family court orders for repayment within twenty-four months.
9
The defendant resided on Park Avenue in New York City.
10
In denying the defendant’s motion to dismiss, the court stated that it
has a legal and equitable interest in enforcing its orders. Although the
children are no longer minors and the decedent is no longer alive, the order
‘‘was in the form of [the 2009 stipulation] for the benefit of the children.
The children’s claim to the money is solely through the estate.’’ The defendant
has not done what he promised to do and was ordered to do pursuant to
the 2009 stipulation. The 2009 stipulation carries out a previous court order
regarding postsecondary education expenses for the children. The 2009
stipulation gave rights to the decedent for the benefit of the children, one
of whom was eighteen years old at the time.
The court also stated that the defendant previously had an opportunity
to litigate whether the estate had an interest in the matter at the time
Judge Abery-Wetstone ruled on motion 172 to substitute the temporary
administrator of the estate. The court found that the estate has used other
moneys to pay the educational expense of the children to its detriment and
to their detriment.
The court also found that there was ‘‘a follow-up motion . . . agreement
. . . dated March 24, 2010, where . . . the estate and [the defendant] agreed
that the court has continuing jurisdiction over this case.’’ Despite the defen-
dant’s argument that the 2010 agreement is void, the defendant has adhered
to part of the agreement but not to other parts. For the foregoing reasons,
the court denied the defendant’s motion to dismiss.
11
On his appeal form, the defendant stated that he was appealing from
the postjudgment order of ‘‘7/14/2015,’’ as well as the denial of his motion
to dismiss.
12
No trial court made a finding as to the nature of the custodial accounts
that held the moneys intended for the children’s education. The 2009 stipula-
tion makes reference to a custodial account into which the decedent was
to place funds for the children’s education. At the time, one of the children
had already turned eighteen.
13
In the separation agreement, the parties agreed that the application and
interpretation of said agreement shall be governed by the laws of Georgia.
The choice of law provision dictates matters of substance, but procedural
issues such as the standard of review are governed by Connecticut law.
Ferri v. Powell-Ferri, 326 Conn. 438, 447, 165 A.3d 1137 (2017). ‘‘The issue of
standing is also a procedural issue and is, therefore, governed by Connecticut
law.’’ Id.
14
In his brief, the substitute plaintiff also contends that we should not
review the defendant’s claim because it is inadequately briefed on appeal.
We do not agree, as the substitute plaintiff’s contention is predicated on
collateral estoppel grounds.
15
The defendant properly points out that, pursuant to the 2009 stipulation,
the decedent was to be the custodian of the children’s education accounts.
General Statutes § 45a-559c sets forth the requirements for the appointment
of a successor custodian upon the death of the prior custodian. The substitute
plaintiff presented no evidence that the decedent designated a successor
prior to her death or that a successor trustee has been appointed by the
Probate Court.
16
General Statutes § 52-107 provides: ‘‘The court may determine the con-
troversy as between the parties before it, if it can do so without prejudice
to the rights of others; but, if a complete determination cannot be had
without the presence of other parties, the court may direct that such other
parties be brought in. If a person not a party has an interest or title which
the judgment will affect, the court, on his application, shall direct him to
be made a party.’’
17
We disagree with the court’s determination. See part I of this opinion.
18
Madison Hamburg, who may have an interest in the education funds,
is not a party to the present action.