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BARBARA A. FLEISCHER v.
WILLIAM B. FLEISCHER
(AC 40987)
Prescott, Bright and Eveleigh, Js.
Syllabus
The defendant, whose marriage to the plaintiff previously had been dis-
solved, appealed to this court from the judgment of the trial court
dismissing his motions to modify alimony and for contempt. Although
the motions were scheduled to be argued in June, 2015, no activity on
the motions occurred until December, 2016, when the court scheduled
a status conference, after which a full hearing was scheduled for the
motions in April, 2017, when the plaintiff argued that the motions should
be dismissed due to the defendant’s failure to prosecute the motions
with reasonable diligence. Subsequently, the plaintiff filed a motion to
dismiss, which the trial court granted for the defendant’s failure to
prosecute the motions with reasonable diligence. Held that the trial
court improperly dismissed the defendant’s motions for modification of
alimony and for contempt: even though a trial court has wide discretion
in determining whether to dismiss an action for failure to prosecute it
with due diligence, there are limits to that discretion, and the sanction
imposed must be proportional to the violation or misconduct, which
did not occur here, as the sanction of dismissal was imposed for a
onetime, one and one-half year delay that occurred after the defendant’s
counsel had been diagnosed with a serious illness, there was no evidence
showing that during that period of delay, the defendant was ever ordered
to prosecute the motions more expeditiously, the first time that the
defendant was confronted with potential dismissal was at the hearing
on the merits of the motion to dismiss, the court made no findings in
its memorandum of decision that it considered and found inadequate
lesser sanctions before dismissing the motions for failure to prosecute
them with due diligence, and the delay in prosecuting the motions was
due to the illness of the defendant’s attorney, which tended not to justify
the severe sanction of dismissal; moreover, the defendant provided a
compelling reason for the delay, both parties were fully prepared to
move forward with a trial on the merits of the defendant’s motions, and
the defendant never received, let alone ignored, orders from the court
regarding the motions, and the court’s decision to dismiss the defen-
dant’s motions created an appearance that it was a punishment for the
defendant’s refusal to waive a claim that any reduction in alimony should
be retroactive to the date that the motion for modification of alimony
was filed.
Argued April 8—officially released September 10, 2019
Procedural History
Action for the dissolution of a marriage and for other
relief, brought to the Superior Court in the judicial dis-
trict 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).
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 modi-
fication 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, accord-
ingly, 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 judg-
ment 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 confer-
ence was held on the parties’ outstanding motions.
On February 25, 2015, the defendant’s counsel, Attor-
ney 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
In December, 2016, the court scheduled a status con-
ference 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 prose-
cuting the case, but there were several delays due to
issues regarding scheduling and discovery. Addition-
ally, 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 defen-
dant’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 dis-
missal 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 Attor-
ney Timothy McGuire and Attorney Palmer. After argu-
ment by both parties, the court informed the parties
that it was reserving its decision on the motion to dis-
miss. On September 15, 2017, the court issued a written
memorandum of decision,6 in which it granted the plain-
tiff’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 action8
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 grada-
tions of diligence, and in its sound discretion, the court
must determine whether the party’s diligence falls
within the ‘reasonable’ section of the diligence spec-
trum. . . .
‘‘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 dis-
miss for failure to prosecute [with reasonable diligence]
if the case has been on the docket for an unduly pro-
tracted period or the court is satisfied from the record
or otherwise that there is no real intent to prosecute
. . . .’’ (Citations omitted; footnote added; internal quo-
tation 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-mak-
ing. . . . It means a legal discretion, to be exercised
in conformity with the spirit of the law and in a manner
to subserve 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 prosecute an action with rea-
sonable diligence.’’ (Internal quotation marks omitted.)
Brochu v. Aesys Technologies, 159 Conn. App. 584, 593,
123 A.3d 1236 (2015).
‘‘The design of the rules of practice is both to facilitate
business and to advance justice; they will be interpreted
liberally in any case [in which] it shall be manifest
that a strict adherence to them will work surprise or
injustice. . . . Rules are a means to justice, and not an
end in themselves.’’ (Internal quotation marks omitted.)
Millbrook Owners Assn., Inc. v. Hamilton Standard,
257 Conn. 1, 16, 776 A.2d 1115 (2001).
Importantly, ‘‘[c]ourts must remain mindful . . .
that [i]t is the policy of the law to bring about a trial
on the merits of a dispute whenever possible . . . and
that [o]ur practice does not favor the termination of
proceedings without a determination of the merits of
the controversy [if] that can be brought about with due
regard to necessary rules of procedure. . . . Disciplin-
ary dismissals pursuant to Practice Book § 14-3, thus,
are not favored . . . .’’ (Citation omitted; emphasis
added; internal quotation marks omitted.) Bank of New
York Mellon v. Horsey, 182 Conn. App. 417, 429, 190 A.3d
105, cert. denied, 330 Conn. 928, 194 A.3d 1195 (2018).
Accordingly, ‘‘although dismissal of an action is not
an abuse of discretion [if] a party shows a deliberate,
contumacious or unwarranted disregard for the court’s
authority . . . the court should be reluctant to employ
the sanction of dismissal except as a last resort . . .
and [if] it would be the only reasonable remedy available
to vindicate the legitimate interests of the other party
and the court.’’ (Citations omitted; internal quotation
marks omitted.) Millbrook Owners Assn., Inc. v. Hamil-
ton Standard, supra, 257 Conn. 16–17.
Finally, even though a trial court has wide discretion
in determining whether to dismiss an action for failure
to prosecute it with due diligence, there are limits to
this discretion. Importantly, sanctions imposed by the
court must be proportional to the violation or miscon-
duct. See id., 18; see also Ridgaway v. Mount Vernon
Fire Ins. Co., 328 Conn. 60, 176 A.3d 1167 (2018) (hold-
ing that Millbrook proportionality test, which applied
to sanctions involving violations of discovery order,
applies to all sanctions). In Ridgaway, our Supreme
Court reasoned, ‘‘[i]ndeed, we cannot imagine a circum-
stance under which it would not be an abuse of discre-
tion to impose a sanction that is disproportionate to the
misconduct.’’ (Emphasis added.) Ridgaway v. Mount
Vernon Fire Ins. Co., supra, 72.
Our Supreme Court has identified the following fac-
tors as relevant to determining the proportionality of
a sanction: the nature and frequency of the misconduct,
notice of the possibility of a sanction,9 the availability
of lesser sanctions, and the client’s participation in or
knowledge of the misconduct. Id., 73. Our Supreme
Court also noted that these principles reflect that, in
assessing proportionality, a trial court must consider
the totality of the circumstances, including, most
importantly, the nature of the conduct itself. Id., 76. We
recognize that the Millbrook factors were established
in the context of noncompliance with discovery orders,
whereas the present case pertains to a failure to prose-
cute with due diligence pursuant to Practice Book § 14-
3. Accordingly, we have adapted the factors to fit the
circumstances of the present case.
With respect to the first factor, the nature and fre-
quency of the misconduct, it is logical that particularly
egregious or frequent misconduct, such as repeated
refusals to comply with a court order, warrants more
severe sanctions. See id., 73. The court in Ridgaway,
however, also acknowledged that although our courts
have not considered whether a single act of misconduct
could warrant imposing a judgment of nonsuit or similar
sanction, courts in other jurisdictions have concluded
that a single act could warrant nonsuit or dismissal
if the act is sufficiently egregious, particularly if the
improper conduct involves the perpetration of a decep-
tion on the court. Id., 73–74.
The conduct for which the court imposed the sanc-
tion of dismissal in the present case was a onetime,
one and one-half year delay that occurred after the
defendant’s counsel had been diagnosed with a serious
illness. The defendant’s counsel eventually transferred
the case to another attorney, who appeared in court
ready to prosecute the motions. There is no evidence
in the record, nor does the plaintiff claim, that during
the period of delay the defendant ever was ordered
specifically by the court to prosecute more expedi-
tiously the motions, let alone that the defendant disre-
garded such an order. Further, there is no suggestion
by the plaintiff or the court that the delay in this matter
involved the perpetration of a deception on the court.
With respect to the next factor—notice of the possi-
bility of a sanction—our Supreme Court noted that in
instances in which our appellate courts have upheld
the sanction of a nonsuit, a significant factor has been
that the trial court put the plaintiff on notice that non-
compliance would result in a nonsuit. Id., 74. We
acknowledge that Practice Book § 14-3 generally puts
a party on notice of the possibility of dismissal for
failure to prosecute an action with due diligence. Never-
theless, we find it relevant that, unlike in the cases
described in Ridgaway, in which the court made vari-
ous orders in which the party was explicitly informed
that failure to follow would result in nonsuit, here,
the first time that the defendant was confronted with
potential dismissal was at the hearing on the merits of
the motion. Notably, this was a hearing in which both
parties were prepared to move forward. There was
nothing further the defendant needed to do to comply
with § 14-3, as he was already willing and able to prose-
cute the motions that day.
Next, in evaluating the third factor, i.e., the availabil-
ity of lesser sanctions, the court in Ridgaway noted
that, ‘‘[our Supreme Court] has refused to uphold a
sanction of nonsuit when there were available alterna-
tives to dismissal that would have allowed a case to be
heard on the merits while ensuring future compliance
with court orders.’’ Id., 75. As to this factor, in addition
to citing Connecticut case law, the court in Ridgaway
took note of other jurisdictions that similarly have
reversed a sanction of nonsuit or dismissal when it had
not been established that a lesser sanction would be
inadequate to vindicate the interests of the other party
and the trial court. Notably, the Ridgaway court cited
to McKoy v. McKoy, 214 N.C. App. 551, 554, 714 S.E.2d
832 (2011), in which the court vacated the trial court’s
order dismissing a counterclaim for failure to prosecute
because the trial court made no findings that lesser
sanctions were considered and found inadequate. Rid-
gaway v. Mount Vernon Fire Ins. Co., supra, 328 Conn.
75. The court in McKoy noted that ‘‘involuntary dis-
missal of a claim is one of the harshest sanctions at
a trial court’s disposal, effectively extinguish[ing] the
[party]’s cause of action and deny[ing] [the party] his [or
her] day in court.’’ (Internal quotation marks omitted.)
McKoy v. McKoy, supra, 553. Similarly, here, the court
made no findings in its memorandum of decision that
it considered and found inadequate lesser sanctions
before dismissing the motions for failure to prosecute.
As to the last factor, i.e., the client’s participation in
or knowledge of the misconduct, the court in Ridgaway
stated that, ‘‘[w]hether the misconduct was solely attrib-
utable to counsel and not to the party also has been a
factor in assessing whether a less severe sanction than
a nonsuit or dismissal should have been ordered.’’ Rid-
gaway v. Mount Vernon Fire Ins. Co., supra, 328 Conn.
75. In evaluating this factor, our Supreme Court cited
to cases in which the degree of personal involvement
of the client in the misconduct, was evaluated in
determining proportionality. Id., 75–76; see Herrick v.
Monkey Farm Cafe, LLC, 163 Conn. App. 45, 49–50, 53,
134 A.3d 643 (2016) (trial court abused its discretion
in rendering judgment of nonsuit when attorney failed
to timely pay attorney’s fees of opposing parties); EMM
Enterprises Two, LLC v. Fromberg, Perlow and Kornik,
P.A., 202 So. 3d 932, 934 (Fla. App. 2016) (before dis-
missal for fraud on court, factors to be considered
include personal involvement of plaintiff); Eaton Corp.
v. Frisby, 133 So. 3d 735, 759 (Miss. 2013) (dismissal
was proper exercise of court’s discretion when plaintiff
knew, through its corporate officers, that counsel had
engaged in improper ex parte communication with
judge). Here, the delay in prosecuting the motions was
due to the illness of the defendant’s attorney, which
fell well outside the control and personal involvement
of the client, and thus tends not to justify the severe
sanction of dismissal.
Finally, because a trial court must consider the total-
ity of the circumstances, we evaluate the Ridgaway
factors in light of the prejudice to the plaintiff in the
present case. Ridgaway v. Mount Vernon Fire Ins. Co.,
supra, 328 Conn. 76. The plaintiff argued that the defen-
dant’s delay prejudiced her by the potential retroactivity
of the motion for modification of alimony.10 Specifically,
she argued that if the modification of alimony were to
apply retroactively, she would have exposure to pay
back the difference in alimony for the four and a half
years that had passed since the motion was originally
filed. Therefore, she would be at risk to pay back a
large sum of money.
Dismissal, however, was not the only remedy avail-
able to ameliorate the plaintiff’s retroactivity concern.
Rather, the court could have addressed the issue as
part of its adjudication of the merits of the motion for
modification. For example, the trial court could have
granted the defendant’s motion to modify alimony pro-
spectively, but denied the retroactive application of the
order. See Hane v. Hane, 158 Conn. App. 167, 176,
118 A.3d 685 (2015) (there is no ‘‘bright line test for
determining retroactivity’’ of modification to alimony or
child support; instead, trial court is to consider factors
applicable given facts and circumstances of case, and
may consider length of time period to adjudicate motion
for modification). Moreover, if the court concluded that
retroactive modification of alimony was appropriate, it
could have crafted a repayment plan that could have
allowed the plaintiff to pay back the defendant over
time. Therefore, for the reasons stated previously, it was
improper for the trial court to dismiss the defendant’s
motions without a hearing on the merits.
In addition to dismissal being a disproportionate
sanction, the present case is distinguishable from cases
in which dismissal under Practice Book § 14-3 was
found to be proper. A brief discussion of some of these
cases illustrates this point. For example, in Ill v. Manzo-
Ill, 166 Conn. App. 809, 142 A.3d 1176 (2016), the defen-
dant appealed from the judgment of the trial court dis-
missing, pursuant to Practice Book §§ 25-34 (e) and 14-
3, her postdissolution motion to modify her alimony
award. Id., 817–19. The defendant filed her motion for
modification of alimony on April 6, 2010. Id., 813. On
February 22, 2012, almost two years after the defendant
had filed her motion for modification, the plaintiff
moved to dismiss the defendant’s motion on the
grounds that (1) the defendant had not prosecuted her
motion with reasonable diligence pursuant to § 14-3 and
(2) had failed to reclaim it within three months from
its filing date pursuant to § 25-34 (e).11 Id., 815. The
defendant filed an objection to the plaintiff’s motion to
dismiss, which the court sustained. Id., 815–16. After
the court’s ruling, the defendant took some steps to
pursue discovery. Id., 816. Despite initiating efforts to
take numerous depositions throughout the pendency
of her motion, however, the defendant admitted that
she never took a single deposition. Id., 817.
After the passage of another year and ten months,
on December 26, 2013, the plaintiff in Ill filed a second
motion to dismiss the defendant’s motion for modifica-
tion pursuant to Practice Book §§ 14-3, 25-34 (e), and
25-48. Id., 817. On February 19, 2014, the defendant filed
an objection to the plaintiff’s motion to dismiss. Id.,
818. The court subsequently heard oral argument on
the motion to dismiss, which it granted on May 14,
2014. Id.
In affirming the judgment of dismissal pursuant to
Practice Book § 14-3, this court concluded that the
defendant’s inactivity for extended time periods and
her repeated failure to complete noticed depositions
supported the dismissal. Id., 827–30. This court empha-
sized that, even after the trial court denied the plaintiff’s
first motion to dismiss and informed the defendant of
her duty to ensure the progress of her motion to modify,
she ‘‘did not accelerate or streamline her scattered and
imprecise discovery efforts . . . ignored the court’s
direction to obtain a hearing date and never sought a
scheduling order . . . .’’ Id. 830. Further, although the
defendant argued that her delay was justified due to
the plaintiff’s appeal of the original alimony order and
failure to provide discovery in good faith, this court
disagreed stating that it was not evident how the plain-
tiff’s appeal, which was withdrawn in 2010, ‘‘would have
affected her ability to proceed efficiently for the next
three and one-half years’’ and rejected the defendant’s
claim that the plaintiff had engaged in bad faith delay
tactics regarding discovery. Id., 827.
In Brochu v. Aesys Technologies, supra, 159 Conn.
App. 586–87, this court found that an unjustified delay
of more than four years in substituting a representative
of the decedent’s estate as the party plaintiff supported
the trial court’s dismissal of the action for failure to
prosecute with due diligence pursuant to Practice Book
§ 14-3. In affirming the dismissal, this court emphasized
that the plaintiff never provided the court with a com-
pelling reason for her failure to substitute herself in,
despite having years in which to have done so, and
failed to provide a reason on appeal. Id., 592. This court
in Fuller v. Commissioner of Correction, supra, 75
Conn. App. 815, affirmed the dismissal, pursuant to § 14-
3, of the petitioner’s petitions for a writ of habeas corpus
and a new trial because the petitioner had engaged in
various delay tactics, requested an indefinite postpone-
ment of her trial, was unable to proceed with trial when
asked by the court to call her first witness, and, after
the court postponed the trial to the following day, was
again unable to proceed. Id., 815–19. Finally, in Bobbin
v. Sail the Sounds LLC, supra, 153 Conn. App. 728–29,
this court affirmed the trial court’s dismissal, pursuant
to § 14-3, of the plaintiff’s application to compel arbitra-
tion where the plaintiff engaged in minimal activity on
the case for almost four years.
The present case is readily distinguishable from Ill,
Brochu, Fuller, and Bobbin. Here, the case had not
‘‘drift[ed] aimlessly through the system.’’ See Brochu v.
Aesys Technologies, supra, 159 Conn. App. 593. The
defendant provided a compelling reason for the delay,
both parties were fully prepared to move forward with
a trial on the merits of the motions, and the defendant
never received, let alone ignored, orders from the court
regarding the motions. Here, a single, one and one-half
year period of inactivity from June, 2015, to December,
2016, occurred. Directly before this period of inactivity,
the defendant’s counsel had been diagnosed with Par-
kinson’s disease, and was attempting to organize his
practice accordingly. The plaintiff never seriously dis-
puted that the defendant’s counsel suffered from signifi-
cant health issues, or that he had taken efforts to inform
the courts in which he was practicing that there could
be delays in prosecuting his cases.12
Finally, we are concerned that the court’s decision to
dismiss the defendant’s motions creates an appearance
that it was punishment for the defendant’s refusal to
waive a claim that any reduction in alimony should be
retroactive to the date that the motion for modification
of alimony was filed.
This court has recognized, in the context of settle-
ment discussions, that ‘‘[w]hen . . . a judge engages
in [discussions] looking to the settlement of a case . . .
in which he will be called upon to decide the issues of
liability and damages . . . [i]t is . . . impossible to
avoid questions as to whether the judge can disregard
. . . matters disclosed in the conference . . . and
whether a preliminary judgment, formed at the confer-
ence and predicated on unsubstantiated claims of proof,
may have some subtle influence on a final judgment
after a full hearing. . . . It is inevitable that the basis
is laid for suspicion, no matter how unfounded or
unjustified it may be, and that failure to concur in what
the judge may consider an adequate settlement may
result in the imposition, upon a litigant or his counsel, of
some retributive sanction or the incurrence of judicial
displeasure.’’ (Internal quotation marks omitted.) Car-
valhos Masonry, LLC v. S & L Variety Contractors,
LLC, 180 Conn. App. 237, 240–41, 183 A.3d 697 (2018).
We find the same concerns to exist in the present
case. At the initial hearing on the defendant’s motions,
the court asked if the defendant would waive retroactiv-
ity with respect to the motion for modification and
when he refused, it immediately granted the plaintiff’s
motion to dismiss his motions. The following collo-
quy occurred:
‘‘The Court: The position of counsel for the plaintiff
is that he’s willing to waive the provision of [Practice
Book §] 25-34 subsection F if there’s no retroactivity.
Are you asking for retroactivity in the event I enter a
modified order?
‘‘[The Defendant’s Counsel]: We are, Your Honor,
however I don’t think that . . . is something that could
be waived or granted at the outset of a trial. I think
that’s something for the finder of fact to determine, and
certainly that is a factor for the finder of fact to consider
when determining whether or not to award retroac-
tivity.
‘‘The Court: Parties can always waive retroactivity if
they want to waive it. My question is are you waiving
retroactivity in the event I grant your motion to modify?
‘‘[The Defendant’s Counsel]: No, Your Honor.
‘‘The Court: Pardon me?
‘‘[The Defendant’s Counsel]: No, Your Honor.
‘‘The Court: All motions are off for failure to comply
with [§] 25-34 subsection F. They’ll have to all be
refiled.’’
After the court dismissed the defendant’s motions,
the plaintiff requested a recess for the defendant’s coun-
sel to discuss with the defendant waiving retroactivity.
The court stated in response to the request of the plain-
tiff’s counsel, ‘‘I’ll give them that opportunity. Other-
wise, my order of dismissal will remain in effect and if
anyone wants to be heard on any motions, they’ll have
to refile them. . . . I already told you what the order’s
going to be if there’s no waiver; I’m going to enforce
the Practice Book Rule.’’ (Emphasis added.)
In this context, the court’s decision to dismiss the
defendant’s motions gives rise to an appearance that
dismissal was in retaliation for the defendant’s decision
to decline the plaintiff’s request that he waive retroactiv-
ity. The fact that the court ultimately withdrew its ruling
dismissing the motions pursuant to Practice Book § 25-
34 (f) and allowed the parties the opportunity to brief
and argue the motion to dismiss does not negate fully
the appearance that the dismissal was punitive in
nature. A trial court cannot attempt to force a party to
engage in horse trading and then punish them when
they decline to do so.
The judgment is reversed and the case is remanded
for further proceedings in accordance with this opinion.
In this opinion the other judges concurred.
1
Practice Book § 14-3 is made applicable to family matters by Practice
Book § 25-48 and provides in relevant part: ‘‘(a) If a party shall fail to
prosecute an action with reasonable diligence, the judicial authority may,
after hearing, on motion by any party to the action pursuant to Section 11-
1, or on its own motion, render a judgment dismissing the action with
costs. . . .’’
2
The parties’ separation agreement provided in relevant part:
‘‘ARTICLE II – ALIMONY AND SUPPORT
‘‘2.1. The [h]usband shall pay, during his lifetime, to the wife until her
remarriage or death, whichever first occurs, the following allowances as
alimony and support for the [w]ife and children:
‘‘A. On the first day of the first month following the date of this agreement,
and on the first day of each succeeding month until the house located at
121 Cedar Lane, Ridgefield, Connecticut is sold the sum of $4,600.00, and,
after the house is sold, the sum of $2,850.00. The obligations of the [h]usband
under this sub-paragraph A. shall be suspended during any period of more
than 60 consecutive days in which the [w]ife cohabits with a person of the
opposite sex.
‘‘B. The monthly payments to be made by the [h]usband to the [w]ife
pursuant to subparagraph A. above shall be reduced by the sum of ($650.00)
[d]ollars when the minor child (a) marries, (b) dies, (c) attains the age of
eighteen (18) years, or (d) becomes emancipated or lives with the [h]usband.
***
‘‘ARTICLE III – WAIVER OF ALIMONY
***
‘‘3.2 In the event the [w]ife becomes gainfully employed, by any employer
other than Upneumat International, Inc., the [h]usband shall be entitled to
a credit of 25 [percent] of the [w]ife’s salary over and above the first $250.00
per month averaged over a full year’s period, as against the amount of
alimony due by [h]usband to [w]ife. The [w]ife shall annually provide the
[h]usband with copies of any W-2 forms issued to her and her federal income
tax return. The term ‘‘salary’’ used herein shall be deemed to include income
received by the [w]ife from [s]ocial [s]ecurity, [p]ension and [p]rofit [s]haring
[p]lan whether or not she is gainfully employed at the time of such receipt.’’
3
On March 15, 2013, the plaintiff filed a motion for contempt regarding
nonpayment of alimony. No action was taken on the plaintiff’s motion.
4
The plaintiff instituted a separate action in the Superior Court of Califor-
nia seeking to enforce the Connecticut spousal support order and to collect
outstanding spousal support from the defendant. On October 23, 2001, the
parties stipulated, and the California court ordered, that ‘‘[b]eginning on
August 1, 2001, [the defendant] shall pay $1,741.76 per month to [the plaintiff]
as ongoing current spousal support on the [first] day of the month for which
it is due.’’
In his motion in limine, the defendant moved to preclude the plaintiff
from offering into evidence any testimony or documents to vary or contradict
the terms of paragraph 3.2 of the parties’ separation agreement; see footnote
2 of this opinion; or to vary or contradict the terms of the parties’ October
23, 2001 stipulation and order of the Superior Court of California.
5
Practice Book § 25-34 (f) provides: ‘‘Failure to appear and present argu-
ment on the date set by the judicial authority shall constitute a waiver of
the right to argue unless the judicial authority orders otherwise. Unless for
good cause shown, no motion may be reclaimed after a period of three
months from the date of filing. This subsection shall not apply to those
motions where counsel appeared on the date set by the judicial authority
and entered into a scheduling order for discovery, depositions and a date
certain for hearing.’’
6
The trial court’s memorandum of decision contains minimal analysis of
the parties’ claims. Further, the memorandum mostly is comprised of quoted
material from the parties’ memoranda of law, as well as the borrowing of
headings from various pleadings.
7
Specifically, the court held that Practice Book § 25-34 (f) did not apply
because counsel appeared on the date set for hearing and the plaintiff failed
to file her motion to dismiss under § 25-34 (f) prior to the hearing date.
Section 25-34 (f) expressly states that it is inapplicable to those motions in
which counsel appeared on the date set by the judicial authority and entered
into a scheduling order for discovery, depositions and a date certain for
hearing. See footnote 5 of this opinion.
8
‘‘[T]he word action means the lawful demand of one’s right in a court
of justice . . . . It includes not only the usual civil action instituted by
process but also proceedings initiated by . . . motion.’’ (Internal quotation
marks omitted.) Ill v. Manzo-Ill, 166 Conn. App. 809, 824, 142 A.3d 1176
(2016).
9
Although our Supreme Court in Ridgaway addressed whether a judgment
of nonsuit was a proportionate sanction, whereas in the present case we
consider whether dismissal of the defendant’s motions was an appropriate
sanction, for our purposes, we find that these sanctions are equivalent in
that both fully dispose of the action at issue, and, therefore, we analyze the
same factors in the present case. See Ridgaway v. Mount Vernon Fire Ins.
Co., supra, 328 Conn. 60.
10
At the hearing on the defendant’s motions on April 20, 2017, the plaintiff’s
counsel stated, ‘‘I am glad to go forward today if the sanction for the
nonprosecution of the motion or the order is that; that there will be no
retroactivity and we’re going forward. I am prepared, Your Honor.’’
Further, at the August 1, 2017 hearing on the plaintiff’s motion to dismiss
the defendant’s motions, the plaintiff’s counsel again argued that he could
not have his client subjected to the retroactivity risk on the motion for
modification of alimony. The plaintiff’s counsel stated, ‘‘if retroactiv[ity] is
gone, which was my initial plan, then my client’s not prejudiced.’’ (Empha-
sis added.)
11
When Practice Book § 25-34 was amended in 2016, effective January 1,
2017, subsection (e) was redesignated as subsection (f).
12
The plaintiff objected to affidavit of the defendant’s counsel, in which
counsel described his illness and the steps he took after his diagnosis in
order to inform the courts of how his illness would delay the progress of
his cases. Although the plaintiff’s counsel objected as to the effect that the
illness of the defendant’s counsel had on his ability to work, he did not
seriously object to the fact that the defendant’s counsel was in fact diagnosed
with Parkinson’s disease, or argue that counsel was not truthful in his
representation to the court that he had spoken with the various courts in
which he was working regarding his illness.
The trial court ultimately indicated that it was not persuaded that the
affidavit properly was before the court under Practice Book § 25-13 because,
unlike in the present case, that section applies only if the grounds for the
motion to dismiss concern defects in jurisdiction, venue and process. Despite
that conclusion, the trial court in its memorandum of decision recognized
the illness of the defendant’s counsel and made reference to information
from his affidavit. Namely, the court referenced that the defendant’s counsel
met with judges whom he had cases before in order to apprise them of
his illness.
We also note that, even when not under oath, ‘‘[a]ttorneys are officers of
the court, and when they address the judge solemnly upon a matter before the
court, their declarations are virtually made under oath.’’ (Internal quotation
marks omitted.) State v. Webb, 238 Conn. 389, 420, 680 A.2d 147 (1996);
Rules of Professional Conduct 3.3.