BARBARA A. FLEISCHER
WILLIAM B. FLEISCHER
April 8, 2019
for the dissolution of a marriage and for other relief,
brought to the Superior Court in the judicial district of
Danbury, where the court, Ford. J., rendered
judgment dissolving the marriage and granting certain other
relief; thereafter, the court, Axelrod, J.,
dismissed the defendant's motions for modification of
alimony and for contempt, and the defendant appealed to this
court. Reversed; further proceedings.
A. Carducci, with whom was Daniel J. Krisch, for the
Christopher P. Norris, for the appellee (plaintiff).
Prescott, Bright and Eveleigh, Js.
defendant, William B. Fleischer, appeals from the judgment of
the trial court dismissing, pursuant to Practice Book §
14-3, his motions for modification of alimony and for
contempt on the ground that he had failed to prosecute the
motions with reasonable diligence. On appeal, the defendant
claims that the trial court improperly dismissed his motions
because there was no clear pattern of delay and the evidence
showed his intent to prosecute the motions. We agree that the
motions should not have been dismissed and, accordingly,
reverse the judgment of the trial court.
record reveals the following undisputed facts and procedural
history. The plaintiff and the defendant married on June 28,
1958. The parties' marriage was dissolved in a judgment
dated May 31, 1984. The judgment incorporated the
parties' separation agreement and provided, inter alia,
that the defendant pay alimony to the plaintiff until her
remarriage or death.
December 10, 2012, the defendant filed a motion for
modification of alimony and a motion for contempt. In his
motion for modification of alimony, the defendant argued that
the plaintiff was earning substantially more income than she
had been at the time of the dissolution judgment twenty-eight
years prior, and, by contrast, the defendant was now earning
substantially less. In his motion for contempt, the defendant
argued that the plaintiff had not provided him with her W-2
forms, as required by section 3.2 of the separation
agreement.See footnote 2 of this opinion.
November 4, 2014, the defendant moved in limine to preclude
the plaintiff from having admitted certain evidence
pertaining to his motions. On December 3, 2014, the defendant
served the plaintiff with a request for admissions. On
December 19, 2014, a status conference was held on the
parties' outstanding motions.
February 25, 2015, the defendant's counsel, Attorney
Allen G. Palmer, was diagnosed with Parkinson's disease.
Attorney Palmer's diagnosis was disclosed in an affidavit
attached to the defendant's opposition to the
plaintiff's motion to dismiss; see footnote 12 of this
opinion; and the plaintiff ‘‘does not challenge
the medical diagnosis of [Attorney Palmer]'' on
parties subsequently entered into a stipulation, dated June
1, 2015, regarding the defendant's motion in limine and
amended appendix to the motion in limine. The stipulation
stated that the plaintiff was to file any objection by June
8, 2015, and counsel were to return to court on June 22,
2015, to argue the motions and objections. The plaintiff does
not appear ever to have filed an objection to the motion in
limine. In any event, no activity on the defendant's
motion for modification of alimony and motion for contempt
occurred between June, 2015, and December, 2016.
December, 2016, the court scheduled a status conference on
the motions for January 19, 2017. At the January 19 status
conference, the court scheduled the matter for a full hearing
on April 20, 2017.
April 20, 2017 hearing, both parties informed the court that
they were prepared to move forward with a trial on the
defendant's motions. The plaintiff, however, argued that
both of the defendant's motions should be dismissed
pursuant to Practice Book §§ 25-34
and 14-3 because they were not heard within three months of
their filing date and the defendant had failed to prosecute
the motions with reasonable diligence. The plaintiff also
requested that, if a hearing on the motions were to proceed,
the defendant waive his request to have the modification of
alimony apply retroactively back to December 10, 2012, the
date on which the motion was filed. The defendant's
counsel responded that the defendant had been dutifully
prosecuting the case, but there were several delays due to
issues regarding scheduling and discovery. Additionally, he
stated that his medical condition accounted for a portion of
the defendant's argument, the court asked if the
defendant was willing to waive any claim that modification of
alimony be retroactive. The defendant responded no. After the
defendant declined to waive retroactivity, the court
summarily dismissed both of the defendant's motions
pursuant to Practice Book § 25-34 (f). The
plaintiff's counsel asked the court to delay the
dismissal for a five minute recess to allow the
defendant's counsel to discuss with the defendant waiving
retroactivity so that the motions could go forward that day.
Despite the assertion of the defendant's counsel that he
did not need to discuss waiving retroactivity with his
client, the court took a recess, again stating that if
retroactivity were not waived, it would dismiss the motions.
a short recess, the defendant stated again that he would not
waive retroactivity. The defendant also asserted that
dismissal was improper because the plaintiff had not filed a
written motion to dismiss, arguing that the plaintiff's
oral motion denied him the opportunity to prepare a proper
response. The court then vacated its dismissal of the motions
and provided the parties with an opportunity to brief the
issues and request additional oral argument.
12, 2017, the plaintiff filed a motion, along with a
supporting memorandum of law, seeking dismissal of the
defendant's motion for modification of alimony and motion
for contempt. In response, the defendant filed an objection
to the motion to dismiss and an affidavit from Attorney
August 1, 2017, the parties appeared before the court for a
hearing on the plaintiff's motion to dismiss. At the
hearing, the defendant was represented by Attorney Timothy
McGuire and Attorney Palmer. After argument by both parties,
the court informed the parties that it was reserving its
decision on the motion to dismiss. On September 15, 2017, the
court issued a written memorandum of decision,  in which it
granted the plaintiff's motion to dismiss under Practice
Book § 14-3 and denied the plaintiff's motion to
dismiss under Practice Book § 25-34. This appeal
begin our analysis of the defendant's claim that his
motions should not have been dismissed with the relevant law
and our standard of review. ‘‘Practice Book
§ 14-3 (a) permits a trial court to dismiss an
action with costs if a party fails to prosecute
the action with reasonable diligence. The ultimate
determination regarding a motion to dismiss for lack of
diligence is within the sound discretion of the court. . . .
Under [§ 14-3], the trial court is confronted with
endless gradations of diligence, and in its sound discretion,
the court must determine whether the party's diligence
falls within the ‘reasonable' section of the
diligence spectrum. . . .
review the trial court's decision for abuse of
discretion. . . . In determining whether a trial court abused
its discretion, the unquestioned rule is that great weight is
due to the action of the trial court and every reasonable
presumption should be given in favor of its correctness. . .
. In determining whether there has been an abuse of
discretion, the ultimate issue is whether the court could
reasonably conclude as it did. . . .
trial court properly exercises its discretion to dismiss for
failure to prosecute [with reasonable diligence] if the case
has been on the docket for an unduly protracted period or the
court is satisfied from the record or otherwise that there is
no real intent to prosecute . . . .'' (Citations
omitted; footnote added; internal quotation marks omitted.)
Bobbin v. Sail the Sounds, LLC, 153 Conn.App. 716,
726-27, 107 A.3d 414 (2014), cert. denied, 315 Conn. 918, 107
A.3d 961 (2015).
court's discretion, however, is not unfettered; it is a
legal discretion subject to review. . . . [D]iscretion
imports something more than leeway in decision-making. . . .
It means a legal discretion, to be exercised in conformity
with the spirit of the law and in a manner to sub serve and
not to impede or defeat the ends of substantial
justice.'' (Internal quotation marks omitted.)
Speer v. Dept. of Agriculture, 183 Conn.App. 298,
303, 192 A.3d 489 (2018).
purpose of Practice Book § 14-3 is to
‘‘ensure the proper movement of cases and to
prevent a backlog of the docket'' so as to avoid
permitting cases to ‘‘drift aimlessly through the
system.'' (Internal quotation marks omitted.)
Fuller v. Commissioner of Correction, 75 Conn.App.
814, 818-19, 817 A.2d 1274, cert. denied, 263 Conn. 926, 823
A.2d 1217 (2003). The court has, consistent with these
principles, established that ‘‘lengthy periods of
inactivity by the plaintiff constitute sufficient grounds for
a trial court to determine that the plaintiff has failed to