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ILL v. Manzo-ILL

Court of Appeals of Connecticut

July 12, 2016

CHARLES ILL
v.
ELLEN MANZO-ILL

          Argued April 14, 2016

         Appeal from Superior Court, judicial district of Stamford-Norwalk, Shay, J. [dissolution judgment]; Heller, J. [motion to dismiss].

          James H. Lee, for the appellant (defendant).

          Paul T. Tusch, with whom was Danielle J. B. Edwards, for the appellee (plaintiff).

          DiPentima, C. J., and Keller and Bishop, Js.

          OPINION

          KELLER, J.

         The defendant, Ellen Manzo-Ill, appeals from the judgment of the trial court dismissing her postdissolution motion to modify her alimony award. On appeal, the defendant claims that the trial court erred in concluding that (1) Practice Book § 25-34 (e)[1]authorized it to dismiss her motion for modification, and (2) she failed to show good cause for her failure to reclaim her motion within three months of the date it was filed and failed to prosecute the motion with reasonable diligence. We affirm the judgment of the trial court.

         The following facts and procedural history are relevant to this appeal. On August 19, 2008, following a five day trial, the court, Shay, J., dissolved the marriage of the plaintiff, Charles Ill. and the defendant. As set forth in the memorandum of decision rendering the judgment of dissolution, the court found that the defendant was fifty-two years old and ‘‘employed throughout the marriage, first by IBM and then by AT&T, up through 1998 when the family moved to Paris, France, after which [time] she became a full time homemaker and has not worked outside of the home since. Her sole reported net income of approximately $1300 per month is derived from interest and dividends. For much of the marriage, her annual earnings, well into six figures, matched or exceeded those of the [plaintiff]. . . . The [plaintiff] is fifty-four years old . . . . He has a BS in mechanical engineering, as well as an MBA . . . . He has been employed throughout the marriage reaching the top rungs of the corporate ladder.'' The court further noted that the plaintiff's last employment prior to the dissolution was at Avaya as a senior vice president of global sales. The court found: ‘‘His annual compensation there was $750, 000 including incentive pay. At some point, the company was acquired by venture capitalists and went private. He left in May of this year, and he is currently looking for work.''

         In that portion of the judgment addressing alimony, the dissolution court ordered each of the parties to pay nominal alimony of $1 per year to one another until the death of either party or the remarriage of the other party, whichever shall sooner occur, and stated: ‘‘It is the intention of the court that any future alimony order be based solely upon the earned income from employment, and not upon investment or other passive income.'' (Emphasis omitted.) The court also indicated: ‘‘[I]n making its award of nominal periodic alimony . . . the court . . . finds . . . that each party has a demonstrable and substantial earning capacity and an ability to support himself or herself without the financial assistance of the other; that the wife's medical condition is treatable with medication and does not adversely limit her ability to maintain gainful employment in any significant manner; and that the court has particularly considered the length of the marriage, the ages of the parties, their education and past employment history, the ages of the children and the diminished caretaker role for each parent, and the award of property . . . including income-producing assets, as well as the division of the [plaintiff's] pension and other retirement assets of the parties.''

         Neither party was satisfied with the terms of the dissolution judgment. After the judgment of dissolution was rendered, on October 3, 2008, in response to the plaintiff's motion for reargument and reconsideration, the court filed a corrected memorandum of decision, but it did not alter the terms of the alimony order. Subsequently, on October 23, 2008, the plaintiff filed an appeal that was withdrawn on June 8, 2010. On September 19, 2008, the defendant filed a motion to open the judgment, which the court denied on April 20, 2010. Later, on May 24, 2010, the court denied the defendant's motion to reargue her motion to open the judgment, noting that the motion to open had been reclaimed more than three months after the date of its filing in derogation of Practice Book § 25-34 (e). Although the defendant filed a motion for extension of time to file an appeal from this denial on June 14, 2010, she withdrew her motion for extension of time on June 24, 2010 and did not appeal from the court's denial of the motion to open.

         On April 6, 2010, shortly before the court denied the defendant's motion to open the judgment, she filed the motion for modification of alimony that is the subject of the present appeal. The defendant sought a modification on the basis of a substantial change in the parties' circumstances. Specifically, her motion alleged in relevant part as follows: ‘‘Since the date of the [decision dissolving the parties' marriage], the circumstances concerning this case have changed substantially in that the plaintiff is currently employed and earning an income, while the defendant is not currently employed, and that a substantial amount of time has elapsed since the judgment was entered and that as a result of the plaintiff's appeal of the judgment, the defendant has been denied access to the funds necessary to support herself.'' The funds to which the defendant claimed she had been denied access would have been derived from the property distribution ordered by the court in the judgment of dissolution.

         After filing her motion for modification, the defendant initiated discovery, which she pursued throughout 2010 by serving the plaintiff with requests for production, to which the plaintiff objected; noticing a deposition of the plaintiff, for which he sought a protective order because he was unavailable on the date scheduled for the deposition; and issuing numerous subpoenas to various entities associated with the plaintiff's earnings and investments, all of which the plaintiff moved to quash.[2]

         On December 20, 2010, the court, Wenzel, J., overruled all of the plaintiff's objections to the defendant's requests for production. As a result, the plaintiff's motions to quash were marked off as moot by the court on that same date. Six months later, on July 20, 2011, the defendant filed a motion for contempt claiming that the plaintiff had failed to comply fully with her discovery requests. The July 20, 2011 motion for contempt was marked off on August 1, 2011. On October 26, 2011, the plaintiff filed a motion for order of compliance with discovery pursuant to Practice Book § 13-14. No action has ever been taken on that motion.

         On February 22, 2012, almost two years after the defendant had filed her motion for modification, the plaintiff moved to dismiss it on the grounds that the defendant had not prosecuted her motion with reasonable diligence and had failed to reclaim it within three months from its filing date pursuant to Practice Book § 25-34 (e). The plaintiff claimed that, in an attempt to circumvent the prohibition against reclaiming a motion after a period of three months from its filing date, the defendant had contacted the family caseflow coordinator unilaterally and had requested that her motion for modification be placed on the calendar. Further, the plaintiff argued that he had provided his last supplemental document production in response to the defendant's discovery requests in August, 2011, that the defendant had taken no action in court on her motion since that date, and that she also had failed to comply with his requests for production.

         The defendant responded by filing another motion for contempt against the plaintiff on February 24, 2012, in which she claimed that the plaintiff still had failed to comply with discovery. The motion for contempt was marked off on March 19, 2012. The defendant renoticed the deposition of the plaintiff for April 3, 2012, but it did not take place. On April 16, 2012, the defendant filed an objection to the plaintiff's motion to dismiss, arguing that an exception to Practice Book § 25-34 (e) existed because her motion for modification twice had been scheduled for a hearing on a date certain.[3]

         On May 21, 2012, the court, Schofield, J., sustained the defendant's objection to the plaintiff's motion to dismiss the defendant's motion for modification.[4] Subsequent to Judge Schofield's ruling, the defendant renewed and expanded her discovery efforts. Between April 18, 2012, and November 14, 2012, she filed motions for commissions to take out-of-state depositions of various business entities connected to the plaintiff, but none of the depositions occurred either because the defendant did not pursue them as scheduled or the defendant failed to respond to and seek resolution of motions to quash and for protective orders sought by the plaintiff.[5] For nearly a year, between November 14, 2012, and November 21, 2013, the defendant did not make further filings. On November 21, 2013, without filing a motion for a commission, she issued a subpoena to IBM for a deposition, which the plaintiff moved to quash. The plaintiff also sought a protective order. Despite initiating efforts to take numerous depositions throughout the pendency of her motion to modify, the defendant admits she never took a single deposition. At no time after Judge Wenzel's decision overruling the plaintiff's objection to the defendant's requests for production on May 20, 2010, did the defendant obtain a ruling by the court that moved forward the discovery impasse she alleged to exist or that found that the plaintiff was noncompliant with the rules of discovery.

         On December 26, 2013, the plaintiff filed a second motion to dismiss the defendant's motion for modification, which is the subject of this appeal. The plaintiff's motion to dismiss sought dismissal pursuant to Practice Book §§ 14-3, [6] 25-34 (e), and 25-48. In his motion, the plaintiff alleged that the defendant's delay in pursuing her motion for modification had not been reasonable and that to permit the defendant to continue to intermittently resurrect and then abandon her discovery efforts, or to pursue her motion after ignoring it for a significant period of time, worked a prejudice on the plaintiff by virtue of: (a) his being subjected to a new round of discovery after previously providing extensive documentation several years earlier; (b) his having to incur legal fees to defend himself against a motion and discovery attempts previously abandoned by the defendant; and (c) his having to stand ready for trial for several years while the defendant continued to decide whether to proceed with her motion. The defendant responded by issuing another subpoena, dated January 3, 2014, to the Dowling Group, the plaintiff's accounting firm, to which the plaintiff responded by filing a motion to quash and a motion for a protective order.

         The defendant filed an objection to the plaintiff's motion to dismiss on February 19, 2014. In her objection, she claimed that she had obtained documents pursuant to subpoenas from multiple entities but still needed time to serve additional subpoenas upon several other entities, and that she had not obtained the plaintiff's tax records.[7] She also complained that, with respect to her discovery efforts, the plaintiff had engaged in obstructionist behavior. The court heard ...


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