BARBARA A. FLEISCHER
WILLIAM B. FLEISCHER
April 8, 2019
from Superior Court in the judicial district of Danbury,
A. Carducci, with whom was Daniel J. Krisch, for the
Christopher P. Norris, for the appellee (plaintiff).
Judges: Prescott, Bright and Eveleigh, Js. PRESCOTT, J. In
this opinion the other judges concurred.
Conn.App. 541] PRESCOTT, J.
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 [192 Conn.App. 542] and
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.
Conn.App. 543] On 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 appeal.
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 [192 Conn.App. 544]
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 (f) 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 [192 Conn.App. 545] retroactivity
so that the motions could go forward that day. Despite the
assertion of the defendant's counsel that he ...