Opinion
No. FA03 040 40 62 S
July 8, 2010
MEMORANDUM OF DECISION
By Memorandum of Decision dated July 8, 2004, this Court, per Fischer, J., dissolved the marriage of the parties. The plaintiff, Anne A. Esse, filed a Post-Judgment Motion for Modification dated January 25, 2010 alleging a substantial change of circumstances. In response, the defendant, Todd W. Esse, filed a Motion for Summary Judgment/Motion to Dismiss/Motion to Strike, Post-Judgment dated May 11, 2010.
The defendant alleged in his Memorandum in Support of his Motion for Summary Judgment/Motion to Dismiss/Motion to Strike, Post-Judgment that he had allowed the plaintiff to keep 100% of the proceeds of the sale of the marital residence, even though the defendant was entitled to 60% of the proceeds. Additionally, the defendant made a payment to the plaintiff in the amount of $1,000,000.00, which he was not obligated to pay under the Court's judgment. The Court finds that these two payments to the plaintiff by the defendant were purely voluntary and at his discretion. Therefore, these payments to the plaintiff by the defendant are not a factor in the Court's decision.
The Court agrees with the plaintiff in her Memorandum in Opposition to the defendant's Motion for Summary Judgment/Motion to Dismiss/Motion to Strike, Post-Judgment that the legal sufficiency of a motion to modify cannot be attacked by a motion to strike. See Zirinsky v. Zirinsky, 87 Conn. App. 257 (2005). In Zirinsky, the Appellate Court of Connecticut stated in its decision "we note simply that a motion to strike is an improper procedural vehicle to challenge the legal sufficiency of a post judgment motion for an order and reverse the court's decision." 87 Conn.App. 257, 277 (2005).
Further, the defendant argued that the plaintiff must establish a prima facie case in her motion to modify, post-judgment. However, the Memorandum of Decision dated July 8, 2004, per Fischer, J., which dissolved the marriage of the parties, requires the defendant to submit yearly income tax returns to the plaintiff as soon as such returns are available. Without the defendant's compliance with the Court's order, the plaintiff is unable to make a prima facie case establishing her motion to modify the judgment. Therefore, the defendant shall produce a copy of the defendant's tax returns for the fiscal years 2008 and 2009 as soon as such returns are available.
Orders
1. Defendant's Motion for Summary Judgment/Motion to Dismiss/Motion to Strike
In response to the defendant's Motion for Summary Judgment/Motion to Dismiss/Motion to Strike, Post-Judgment dated May 11, 2010, the Court denies the motion.
2. Plaintiff's Motion for Contempt
In response to the plaintiff's Motion for Contempt dated December 2, 2009, the Court denies the motion and the defendant shall produce a copy of the defendant's tax returns for the fiscal year 2008 within ten days of this order and for the fiscal year 2009 ten days from the date they are filed with the Internal Revenue Service.
3. Plaintiff's Motion for Attorneys Fees and Costs
In response to the plaintiff's Motion for Counsel Fees, Post-Judgment dated May 27, 2010, the Court denies the motion without prejudice.
4. Defendant's Motion for Attorney Fees and Costs
In response to the defendant's Motion for Counsel Fees, Post-Judgment dated May 11, 2010, the Court denies the motion without prejudice.