Opinion
No. FA97 0159131 S
April 28, 2003
MEMORANDUM OF DECISION
The marriage of the parties was dissolved by decree of this court on June 16, 1999. Incorporated therein was the Agreement of the parties dated June 15, 1999. Both of them were represented by counsel. At the time of the decree, they had four minor children, John and Julia, twins then aged 15, but who have now reached their majority, Jane, aged 13 1/2, and Jenny, nearly 12.
On June 9, 2001, the defendant father ("father") filed a Motion for Child Support (#151), basing his request upon the fact that the youngest child lived with him full-time, and that the next oldest resided with him when she came home from boarding school. On September 25, 2001, the plaintiff mother ("mother") filed a Motion to Dismiss (#159) citing lack of subject matter jurisdiction. The court denied this motion on February 4, 2002. The mother then filed a Motion to Strike (#174) dated September 12, 2002, citing two grounds: (1) the provisions of the Agreement itself, in particular Article 3.23 thereof, and (2) the "contemplation doctrine" enunciated by the Connecticut courts. The father filed an objection thereto. The parties were heard by this court on September 30, 2002, at which time the Motion to Strike was granted and the Objection overruled. An appeal by the father followed, and the court filed a Memorandum of Decision (#192) dated December 30, 2002, articulating its oral decision pursuant to P.B. § 25-20.
"3.23 . . . The children ceasing to principally reside with the Wife shall not be a substantial change in circumstances for purposes of Section 46b-86 of the General Statutes."
Whenever a motion to strike is filed and more than one ground of decision is set up therein, the judicial authority, in rendering the decision thereon, shall specify in writing the grounds upon which that decision is based. P.B. Section 25-20.
In the meantime, the father, testing the same provisions of the Separation Agreement, filed a Motion for Contempt (#182) dated October 25, 2002, as well as a Motion for Order (#183), also dated October 25, 2002. Both motions are virtually identical, including the relief sought. The only exception is that the former seeks, by way of relief, a holding that the mother is in contempt of the court orders due to her failure to apply a portion of the unallocated alimony and support monies in support of the children. The mother has countered with a Motion to Strike (#190) dated December 23, 2002, to which the father has filed an Objection (#193) dated January 8, 2003. The court took the papers.
AS TO THE MOTION FOR ORDER (#183):
The court finds this to be a thinly-disguised attempt by the father to re-plead the Motion for Child Support (#151), and for the reasons set forth in its earlier Memorandum of Decision (#192) the Motion to Strike, as to that pleading, is HEREBY GRANTED, and the Objection, as to that pleading, is HEREBY OVERRULED.
AS TO THE MOTION FOR CONTEMPT (#182):
A motion to strike tests the legal sufficiency of a pleading. P.B. § 25-16. RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 (1994). Here, the father has pled (1) the agreement of the parties which was incorporated in the decree and became an order of the court, and (2) that the mother is in breach thereof, in particular, the provisions of Article 3.21. In other words, he has sufficiently pled the basic elements of contempt so as to join the issue before the court. Emerick v. Emerick, 28 Conn. 794, 797 (1992); French v. French, 36 Conn. Sup. 266, 267 (1980); General Statutes § 46b-87. That being the case, the court must conduct an evidentiary hearing. Duve v. Duve, 25 Conn. App. 262, 269 (1991). Moreover, the court has the power to enter appropriate orders so as to either preserve the integrity of the original order, Clement v. Clement, 34 Conn. App. 641, 646 (1994), or to make one party whole due to the breach by the other party. Kronholm v. Kronholm, 16 Conn. App. 124, 133 (1984).
"3.21 For so long as the Husband is making payments . . . [of unallocated alimony and child support] . . . the Wife shall be responsible for the support of the minor children."
For the foregoing reasons, the plaintiff's Motion to Strike is HEREBY GRANTED solely as to paragraphs 2 and 3 of the relief sought, and the defendant's Objection is HEREBY SUSTAINED as to the Motion to Strike the Motion for Contempt, including paragraphs 1 and 4 of the relief sought therein.
THE COURT
SHAY, J.