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Fleischer v. Fleischer

Court of Appeals of Connecticut

September 10, 2019

BARBARA A. FLEISCHER
v.
WILLIAM B. FLEISCHER

          Argued April 8, 2019

         Procedural History

         Action 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.

          Logan A. Carducci, with whom was Daniel J. Krisch, for the appellant (defendant).

          Christopher P. Norris, for the appellee (plaintiff).

          Prescott, Bright and Eveleigh, Js.

          OPINION

          PRESCOTT, J.

         The 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.[1] 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.

         The 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.[2]

         On 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.[3]See footnote 2 of this opinion.

         On November 4, 2014, the defendant moved in limine to preclude the plaintiff from having admitted certain evidence pertaining to his motions.[4] 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.

         On 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.

         The 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.

         In 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.

         At the 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)[5] 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 delay.

         After 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.

         Following 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.

         On May 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 Palmer.

         On 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, [6] 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.[7] This appeal followed.

         We 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[8] 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. . . .

         ‘‘We 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. . . .

         ‘‘A 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).

         ‘‘The 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).

         The 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 ...


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