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JAMES M. MCNAMARA v. KRISTINE MCNAMARA—DISSENT
EVELEIGH, J., dissenting. I respectfully dissent. I
disagree with the majority’s conclusion that the defen-
dant, Kristine McNamara, failed to brief adequately how
she was harmed by the trial court’s denial of her request
for a continuance.1 Under the circumstances here, and
after considering the relevant factors, I would conclude
that the defendant sufficiently addressed the issue of
harm in her brief and that the denial of the defendant’s
request for a continuance constituted an abuse of dis-
cretion. Therefore, I would reverse the judgment of the
trial court and remand the case for a new hearing on
the second amended motion for a modification of the
parties’ parenting plan filed by the plaintiff, James M.
McNamara.
The majority opinion sets forth in detail the factual
and procedural history of this case. Accordingly, a full
recitation of those facts is not needed here. I, however,
briefly set forth some of the factual and procedural
history of the case that is relevant to my analysis. The
parties’ marriage was dissolved on September 27, 2013,
and a parenting plan dated September 26, 2013, was
incorporated into that judgment. On January 4, 2016,
the parties agreed to an amendment to and modification
of the parenting plan. Subsequently, on February 5,
2018, the plaintiff filed a motion for modification. With
respect to that motion, the parties entered into a stipula-
tion on April 23, 2018, whereby they agreed to mediation
of the parenting issues raised in the motion. Thereafter,
on November 6, 2018, the plaintiff requested orders
regarding his February 5, 2018 motion for modification,
and the court entered orders in accordance with that
request.
On January 11, 2019, the plaintiff filed another post-
judgment motion for modification, in which he sought
modification of the parties’ parenting plan with respect
to the following issues: (1) the defendant’s constant
harassing and distracting, nonemergency communica-
tions directed to the plaintiff, which he claimed were
not respectful as required by the January 4, 2016 amend-
ment to the parenting plan, (2) a Christmas and New
Year holiday schedule for the minor children, as the
previous parenting plan and modifications did not set
forth specific parenting time concerning the Christmas
and New Year’s holidays, and (3) the defendant’s refusal
to provide consent for the plaintiff to pursue various
medical and/or educational needs of the minor children,
which was contrary to the well-being of the children and
necessitated the plaintiff having final decision-making
authority concerning the children’s medical and educa-
tional needs.
On January 11, 2019, the plaintiff also filed a motion
for contempt related to the defendant’s failure to exe-
cute documentation for the transfer of her interest in
the plaintiff’s business. The trial court file also contains
an amended motion for modification dated February 5,
2019, in which the plaintiff sought a modification on
the basis of the same three grounds alleged in his Janu-
ary 11, 2019 motion for modification but included new
allegations concerning actions taken by the plaintiff
after the filing of the January 11, 2019 motion through
February 2, 2019. The court, Pavia, J., ordered a hearing
to be held on March 11, 2019, with respect to the plain-
tiff’s amended motion for modification, as well as for
a number of other motions filed by the plaintiff, includ-
ing an amended motion for contempt, a motion dated
February 5, 2019, for this matter to be transferred to
the family relations office for a custody study, and a
motion to appoint a guardian ad litem for the minor
children. It is not clear from the record why a hearing
on the plaintiff’s various motions did not take place on
March 11, 2019.
On May 16, 2019, the plaintiff filed a second amended
motion for modification, in which he sought a modifica-
tion of the parenting plan for the same reasons as
alleged in his January 11 and February 5, 2019 motions
for modification, and he sought therapy for the parties’
minor children, whose behavior had become volatile
and physical. On May 16, 2019, the plaintiff also filed
a motion to appoint a guardian ad litem for the defen-
dant and a motion seeking to have the defendant
undergo a psychological examination. On July 31, 2019,
notice was issued to the defendant of a motion to with-
draw filed by her counsel, Attorney William Chabb,
which set a hearing date on the motion to withdraw
for August 5, 2019, on which date the court, Hon. Heidi
G. Winslow, judge trial referee, granted the motion. The
defendant had made an oral request for a continuance
at the hearing on August 5, 2019, which was denied by
Judge Winslow at the hearing. The next day, August 6,
2019, the defendant filed a written motion for a continu-
ance, which was denied by the court, Eschuk, J., the
same day.2 A hearing was held on the plaintiff’s pending
May 16, 2019 second amended motion for modification
on August 8 and 9, 2019, at which the defendant appeared
in a self-represented capacity. The court rendered judg-
ment granting the plaintiff’s second amended motion
for modification on August 12, 2019, and this appeal
followed.
Next, I set forth the law and standard of review appli-
cable to the defendant’s claim that it was an abuse of
discretion for the trial court to deny her motion for a
continuance to obtain counsel after the court had
granted her counsel’s motion to withdraw just three
days prior to a scheduled hearing on a pending motion
for modification filed by the plaintiff. As the majority
correctly notes, ‘‘[t]he determination of whether to
grant a request for a continuance is within the discretion
of the trial court, and will not be disturbed on appeal
absent an abuse of discretion. . . . To prove an abuse
of discretion, an appellant must show that the trial
court’s denial of a request for a continuance was arbi-
trary. . . . There are no mechanical tests for deciding
when a denial of a continuance is . . . arbitrary . . . .
The answer must be found in the circumstances present
in every case, particularly in the reasons presented to
the trial judge at the time the request is denied.’’ (Inter-
nal quotation marks omitted.) State v. Rivera, 268 Conn.
351, 378, 844 A.2d 191 (2004). ‘‘An abuse of discretion
exists when a court could have chosen different alterna-
tives but has decided the matter so arbitrarily as to
vitiate logic, or has decided it based on improper or
irrelevant factors.’’ In re Shaquanna M., 61 Conn. App.
592, 603, 767 A.2d 155 (2001).
In State v. Rivera, supra, 268 Conn. 379, our Supreme
Court articulated the ‘‘factors that appropriately may
enter into an appellate court’s review of a trial court’s
exercise of its discretion in denying a motion for a
continuance. Although resistant to precise cataloguing,
such factors revolve around the circumstances before
the trial court at the time it rendered its decision, includ-
ing: the timeliness of the request for continuance; the
likely length of the delay; the age and complexity of
the case; the granting of other continuances in the past;
the impact of delay on the litigants, witnesses, opposing
counsel and the court; the perceived legitimacy of the
reasons proffered in support of the request; [and] the
defendant’s personal responsibility for the timing of the
request . . . .’’ (Internal quotation marks omitted.)
‘‘In the event that the trial court acted unreasonably
in denying a continuance, the reviewing court must also
engage in harmless error analysis.’’ (Internal quotation
marks omitted.) State v. Williams, 108 Conn. App. 556,
560, 948 A.2d 1085 (2008). Where, as here, the claim
involved is nonconstitutional in nature, ‘‘to establish
reversible error . . . the defendant must prove both
an abuse of discretion and harm . . . .’’ (Internal quota-
tion marks omitted.) Id., 561.
The majority does not reach the merits of the defen-
dant’s claim on appeal that the trial court abused its
discretion in denying her request for a continuance on
the basis of its determination that the defendant failed
to brief the issue of harm adequately. I respectfully
disagree. Although the defendant has not designated a
separate section of her brief to address harm, I believe
she did address the harm that resulted from the court’s
decision when she discussed in her brief what she stood
to lose if the court granted the defendant’s motion,
namely, ‘‘the ability to make important medical and
educational decisions for her special needs children
. . . .’’ The defendant also addressed the issue of harm
resulting from her self-representation when she stated
in her brief: ‘‘The defendant, a nonlawyer who was
unfamiliar with the rules of evidence, did not enter one
exhibit into evidence. . . . Nor did she call one witness
other than herself to testify during her case-in-chief.’’
Accordingly, I would conclude that the defendant is
entitled to a review of the merits of her claim in this
appeal.
After thoroughly reviewing the record and carefully
considering the factors set forth in Rivera, I believe
that they weigh in favor of granting the continuance
and, thus, that the court’s failure to grant the defen-
dant’s request for a continuance constituted an abuse
of discretion under the circumstances of this case.
With respect to the first factor—the timeliness of the
request for a continuance—the record demonstrates
that the defendant made her oral request for a continu-
ance immediately after the court granted Attorney
Chabb’s motion to withdraw and the defendant realized
that she would not be represented by counsel at the
upcoming hearing on the plaintiff’s motion for modifica-
tion, which was set to take place three days later. The
request, therefore, was timely. As for the second factor
concerning the length of the delay, the defendant stated
to the court at the August 5, 2019 hearing that she
needed one month to find counsel, which was a rela-
tively short period of time and was not unreasonable.
Moreover, as to the age and complexity of the case,
the plaintiff’s second amended motion for modification
had been pending for two and one-half months at the
time that the defendant’s attorney sought to withdraw
and the court denied the defendant’s request for a con-
tinuance. That was not a lengthy period of time, and
there is nothing in the record to suggest that any kind
of emergency existed such that an immediate decision
on the plaintiff’s motion for modification was neces-
sary. Although the plaintiff’s May 16, 2019 motion did
raise, in substance, the same claims as those raised in
his January 11, 2019 motion for modification as well as
his February 5, 2019 amended motion for modification,
a hearing had been scheduled on that amended motion
for modification for March 11, 2019. However, that hear-
ing did not occur, and, thus, the plaintiff filed his second
amended motion for modification shortly thereafter in
May, 2019. Nothing in the record suggests that the fail-
ure of that hearing to take place in March, 2019, was
attributable to the defendant. The trial court even recog-
nized this matter as pending for two and one-half
months since May, 2019, not since January, 2019. More-
over, I would not weigh the delay in having the issues
resolved, even if construed as being seven months,
against the defendant, especially when, since the filing
of the plaintiff’s January 11, 2019 motion for modifica-
tion, the plaintiff had filed numerous other motions that
had to be addressed by the court, including a motion
for contempt, an amended motion for modification, an
amended motion for contempt, a motion for this matter
to be transferred to the family relations office for a
custody study, a motion to appoint a guardian ad litem
for the minor children, a second amended motion for
modification, a motion to appoint a guardian ad litem
for the defendant, and a motion seeking to have the
defendant undergo a psychological examination.
The fourth factor clearly weighs in favor of the defen-
dant, as she had not previously requested a continuance
prior to the hearing on August 5, 2019, when she orally
requested one. After considering the fifth factor—the
impact of delay on the litigants, witnesses, opposing
counsel and the court—I would also conclude that this
favors the defendant. At the August 5, 2019 hearing, the
plaintiff never objected to the defendant’s request for
a continuance, nor did he make any claim that he would
have been prejudiced if the court granted the defen-
dant’s request for a one month continuance. See, e.g.,
Robelle-Pyke v. Robelle-Pyke, 81 Conn. App. 817, 824,
841 A.2d 1213 (2004) (trial court abused its discretion
in denying request for continuance when there was
nothing in record to reflect that prejudice would have
occurred if continuance had been granted). Moreover,
the plaintiff even recognizes in his appellate brief that
there is nothing in the record to indicate the impact of
a delay on the court or the plaintiff.
Furthermore, with respect to the sixth factor, the
plaintiff had a legitimate reason for making her request
for a continuance—she wanted time to find an attorney
so that she would not be self-represented at the upcom-
ing hearing on the plaintiff’s second amended motion
for a modification of the parties’ parenting plan. It is
clear from the transcript of the proceeding on August
5, 2019, that the plaintiff expressed to the court multiple
times that she did not want to proceed as a self-repre-
sented party. Given the importance of the matters
involved in the upcoming hearing—the decision-making
authority concerning the health care and educational
needs of the parties’ minor children—I cannot think of
a more legitimate reason for seeking a continuance.
The final factor set forth in Rivera concerns the
defendant’s personal responsibility for the timing of the
request. First, although the court stated at the hearing
on August 5, 2019, its belief that the defendant was not
objecting to Attorney Chabb’s withdrawal, the defen-
dant countered by making it clear to the court that she
did not want to represent herself. She also asked the
court ‘‘if there’s some way that [they could] work it
out,’’ and stated that she was ‘‘still willing to sit down
and prepare effectively.’’ Clearly, the defendant did not
consent to Attorney Chabb’s withdrawal. She explained
to the court that she was not able to meet with Attorney
Chabb the previous week because it was a last minute
request and she was with her children that day, and
that her primary concern with Attorney Chabb was his
lack of preparation. Attorney Chabb even acknowl-
edged that he had not contacted the defendant for
weeks and that he usually waits to prepare until right
before a hearing.
The timing of the defendant’s request for a continu-
ance was prompted by the trial court’s decision to grant
Attorney Chabb’s motion to withdraw, even though the
court was aware that a hearing was scheduled for three
days later. The court recognized the ‘‘really short
notice’’ it was giving the defendant, and yet, despite the
defendant’s statements that she was still willing to work
with Attorney Chabb, the court granted the motion to
withdraw. This is not a situation in which the defendant
had sufficient time before the upcoming scheduled
hearing to obtain new counsel; see, e.g., Foster v. Foster,
84 Conn. App. 311, 321, 853 A.2d 588 (2004) (denial of
continuance was not improper when plaintiff had ample
time to obtain counsel before scheduled hearing date);
she had only three days.
Finally, I also think it is important to consider the
concept of fairness in this matter. The defendant simply
wanted an attorney to represent her at the upcoming
hearing on the plaintiff’s motion for modification, the
court acknowledged the very short notice it was giving
the defendant to find another attorney before the com-
mencement of that hearing, and, as noted previously,
the plaintiff never objected to the defendant’s request
for a continuance. I acknowledge that appellate courts
‘‘afford great deference to a court’s ruling on a motion
for a continuance’’; State v. Williams, supra, 108 Conn.
App. 565; and I recognize the importance of docket
management. Under the circumstances of this case,
however, I believe that the court’s denial was unreason-
able and arbitrary. See, e.g., id. Accordingly, I would
conclude that it was an abuse of discretion for the court
to deny the defendant’s request for a continuance to
seek new counsel, especially when the court’s decision
to allow her attorney to withdraw, with a hearing pend-
ing in three days, was the very reason that she needed
the continuance. The court here had an1 alternative,
as it could have denied Attorney Chabb’s motion to
withdraw. Doing so would have obviated the need for
the continuance, especially given that this was not a
case in which a grievance had been filed or money was
owed, and the defendant was still willing to work with
Attorney Chabb. Once the court granted the motion to
withdraw, however, it should have afforded the defen-
dant a reasonable continuance to give her the opportu-
nity to obtain new counsel.
Moreover, I would conclude that the defendant was
harmed by the court’s decision denying her request for
a continuance. Even though the court commended the
defendant on her performance in representing herself
during the proceedings on the plaintiff’s motion for
modification, her self-representation was not without
its consequences. During the hearing on the plaintiff’s
second amended motion for modification on August 8
and 9, 2019, the defendant never introduced any exhib-
its, called any witnesses other than herself, or raised
any objections. The failure of the court to allow the
defendant a reasonable continuance to obtain counsel
prevented the defendant from mounting a meaningful
challenge to the plaintiff’s motion for modification. See
generally State v. Jackson, 334 Conn. 793, 816, 821, 224
A.3d 886 (2020) (trial court abused its discretion in
failing to afford defendant reasonable continuance to
obtain his own expert to counter late disclosure of
expert by state, which deprived defendant of meaning-
ful opportunity to challenge state’s expert); see also
Ramos v. Ramos, 80 Conn. App. 276, 284–85, 835 A.2d
62 (2003) (trial court abused its discretion in denying
motion for continuance to address late disclosure of
plaintiff’s health condition, and court’s decision was
harmful when defendant was denied opportunity to
investigate impact of plaintiff’s health condition on
determination of plaintiff’s damages), cert. denied, 267
Conn. 913, 840 A.2d 1175 (2004). Moreover, given that
the trial judge questioned the defendant extensively
during the hearing, an attorney surely would have raised
an objection on her behalf. The harm to the defendant
is further demonstrated by the fact that the court
granted the plaintiff’s motion for modification, which
resulted in the plaintiff being awarded final decision-
making authority concerning educational and heath
care issues of the minor children. The court’s ruling on
the request for a continuance denied the defendant
the opportunity to mount an effective defense to the
plaintiff’s motion, on which the court ruled in the plain-
tiff’s favor. ‘‘A reasonable continuance almost undoubt-
edly would have rectified the prejudice.’’ State v. Jack-
son, supra, 815.
Accordingly, I respectfully dissent.
1
Because I am dissenting from the majority’s failure to consider whether
the trial court abused its discretion in denying the defendant’s request for
a continuance and because, in my view, the trial court’s decision was an
abuse of discretion and the judgment of the trial court should be reversed
on that ground, I make no comment on the other claims addressed by
the majority.
2
Judge Eschuk denied the defendant’s written motion for a continuance
without stating the reasons for her decision. This dissent concerns Judge
Winslow’s decision denying the plaintiff’s oral request for a continuance at
the August 5, 2019 hearing.