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Fleischer v. Fleischer

Appellate Court of Connecticut

September 10, 2019

BARBARA A. FLEISCHER
v.
WILLIAM B. FLEISCHER

         Argued April 8, 2019

Page 1029

         

          Appeal from Superior Court in the judicial district of Danbury, Ford. J.

         COUNSEL:

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

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

          Judges: Prescott, Bright and Eveleigh, Js. PRESCOTT, J. In this opinion the other judges concurred.

          OPINION

Page 1030

          [192 Conn.App. 541] 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 [192 Conn.App. 542] and provided,

Page 1031

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.

         [192 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.[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.

Page 1032

          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 [192 Conn.App. 544] 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 [192 Conn.App. 545] retroactivity so that the motions could go forward that day. Despite the assertion of the defendant's counsel that he ...


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