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DANIEL MCGOVERN v. PAULA MCGOVERN
(AC 45028)
(AC 45029)
Bright, C. J., and Alvord and Prescott, Js.
Syllabus
The plaintiff appealed to this court from the judgment of the trial court
dissolving his marriage to the defendant after the plaintiff and his counsel
failed to appear for trial. The plaintiff’s counsel had filed several motions
on the day of the trial prior to the time trial was to start. After trial
began, counsel filed a motion for a continuance in which she stated
that she had suddenly become ill and could not proceed. The court
denied the motion that day, stating that it had waited for counsel and
her client for a reasonable amount of time before starting the proceeding
and had not been informed of the motion for a continuance until well
into the proceeding. The court dismissed the plaintiff’s complaint and
rendered judgment on the defendant’s cross complaint. The court there-
after denied the plaintiff’s motion to reconsider its ruling on the request
for a continuance and denied his motion to open the judgment. Held:
1. The trial court did not abuse its discretion in denying the plaintiff’s motion
for a continuance: the record revealed a pattern of violation by the
plaintiff of deadlines set by the court, including his failure to file a
financial affidavit and to comply with trial management orders, the
financial affidavit he ultimately filed was wholly inadequate, and he only
belatedly and partially complied with the trial management orders after
the defendant filed a motion for sanctions; moreover, the court reason-
ably could have considered the impact of the delay on the defendant,
as the start date of the trial had been set six months previously and the
dissolution action had been pending for more than one year, and,
although sudden illness of a party’s counsel could form a legitimate
reason for a continuance, the plaintiff’s motion was not filed until after
the start of trial, and no reason was offered in the motion for the failure
of the plaintiff himself to appear.
2. The plaintiff’s claim that the trial court abused its discretion in denying
his motion to open the judgment was unavailing; the court acted reason-
ably in rejecting the plaintiff’s reasons for opening the judgment, namely,
his counsel’s sudden illness and a claim of immeasurable harm resulting
from the dissolution of the marriage, and the plaintiff did not file either
a notice pursuant to the applicable rule of practice (§ 64-1 (b)) seeking
the required oral or written decision from the court for its denial of the
motion to open or a motion asking the court to articulate the factual
and legal basis for its ruling.
Argued January 18—officially released February 14, 2023
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of New Haven, where the defendant filed a cross
complaint; thereafter, the matter was tried to the court,
Price-Boreland, J.; subsequently, the court dismissed
the complaint; thereafter, the court, Price-Boreland, J.,
rendered judgment on the cross complaint and dis-
solved the marriage and granted certain other relief;
subsequently, the court denied the plaintiff’s motion to
open and vacate the judgment, and the plaintiff filed
separate appeals with this court; thereafter, the appeals
were consolidated. Affirmed.
Jessica C. Wilson, for the appellant (plaintiff).
John F. Morris, for the appellee (defendant).
Opinion
ALVORD, J. The plaintiff, Daniel McGovern, appeals
from the judgment of the trial court dissolving his mar-
riage to the defendant, Paula McGovern, and denying
his motion to open the judgment of dissolution. On
appeal, the plaintiff claims that the court abused its
discretion in (1) denying his motion for a continuance
and (2) denying his motion to open the judgment of
dissolution.1 We affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of the plaintiff’s appeal. The par-
ties are the parents of a child born in February, 2005.
The parties were married in October, 2005. A prior
action for dissolution of the marriage was commenced
by Paula in a self-represented capacity in August, 2018
(2018 dissolution proceeding). See McGovern v. McGov-
ern, Superior Court, judicial district of New Haven,
Docket No. FA-XX-XXXXXXX-S. The court rendered a judg-
ment of dissolution in the 2018 dissolution proceeding
in January, 2019, but subsequently granted Daniel’s
motion to open the judgment in June, 2019, filed by his
counsel. In August, 2019, Paula, who remained self-
represented, withdrew the 2018 dissolution action.
In May, 2020, the plaintiff commenced the present
dissolution action. The defendant filed an answer and
cross complaint, which was amended on October 9,
2020, and August 24, 2021. A remote trial was scheduled
to be held on August 27, 2021, at 2 p.m.2 Earlier that
day, the trial was rescheduled to 3 p.m. to accommodate
the court’s schedule. All parties were notified of the
time change.
The court commenced the remote trial at 3:05 p.m.
and noted that neither the plaintiff nor his attorney was
present. The court noted that the defendant had filed
a cross complaint and offered her counsel the opportu-
nity to be heard. The defendant’s counsel requested that
the court dismiss the plaintiff’s complaint and render
judgment on the defendant’s cross complaint in accor-
dance with the defendant’s proposed orders. The court
took a recess. After it returned on the record, the court
reviewed the procedural history of the case with the
defendant’s counsel, following which it dismissed, with
prejudice, the plaintiff’s complaint and considered the
defendant’s cross complaint to be the matter before the
court. The court then took another recess. When it
returned on the record, the court considered the defen-
dant’s proposed orders.
The court examined relevant documents in the file:
both parties’ financial affidavits3 and the child support
guidelines worksheet that had been filed by the plain-
tiff’s counsel in May, 2021. With respect to the parties’
then sixteen year old child, the child support guidelines
worksheet prepared by the plaintiff indicated that his
presumptive child support payment would be $16 per
week. The defendant confirmed with the court that she
was not seeking child support.
The defendant was sworn in and provided testimony.
With respect to the real estate asset listed on the defen-
dant’s financial affidavit, the defendant testified that
she had purchased the home in Hamden four years
prior to the marriage with her own money and that
she had paid the mortgage herself since the date of
purchase. The defendant testified that she had paid all
expenses related to the parties’ child and their home,
both prior to the parties’ separation in 2014, when the
plaintiff left the home and family, and after the separa-
tion. The defendant testified that the plaintiff was not
a partner in sharing the financial responsibilities of the
marriage. The defendant requested that the court award
her the home. With respect to the defendant’s pension,
the defendant testified that she has been employed as
a teacher by the city of New Haven for thirty-five years
and has made contributions from her wages to her
pension plan for the entirety of her employment, which
included years both prior to the marriage, during the
nine years the plaintiff was living with the family, and
after the parties’ separation in 2014.
The court then adopted most of the defendant’s pro-
posed orders and incorporated them into the judgment
of dissolution. Specifically, the court granted the defen-
dant sole custody of the parties’ child and ordered that
the plaintiff ‘‘may have visitation with the child solely
at the [defendant’s] discretion.’’ The court did not award
alimony or child support to either party.4 The court
ordered that each party retain his or her own assets
and liabilities as identified on each party’s respective
financial affidavit.5 This order included the defendant’s
retaining her retirement plan assets and the home in
Hamden where she and the child were living.
Several filings were made on the day of the trial but
prior to the scheduled 3 p.m. start of the trial. First,
the defendant filed a motion for sanctions, arguing that
the plaintiff had failed to comply with the court’s stand-
ing orders by not submitting, among other documents,
a current financial affidavit and written proposed orders
for trial.6 The court did not rule on this motion.7 The
plaintiff’s counsel then filed amended, proposed orders8
and a motion captioned ‘‘motion for order to reassign
trial date to status conference.’’ In the motion, the plain-
tiff’s counsel stated that the matter had been assigned
to be heard from 3 p.m. to 5 p.m. and that she expected
the case to take between two and four days of trial.
The plaintiff’s counsel also represented in the motion
that, despite her good faith efforts to proceed with
trial and prepare her client, ‘‘the plaintiff’s status at
a rehabilitation center with limited access to outside
contact has been a barrier to full preparation.’’ Addition-
ally, the plaintiff’s counsel represented in the motion
that depositions had not yet been conducted due to
the defendant’s unavailability and limited access to the
plaintiff. Thus, the plaintiff’s counsel requested in the
motion that the trial date be used as a status conference
wherein only the attorneys’ presence would be required.
The court did not rule on this ‘‘motion for order.’’
The plaintiff’s counsel also filed, after the scheduled
3 p.m. start of the trial, a motion for continuance, in
which it was represented that she ‘‘ha[d] become sud-
denly ill (dehydrated to a severe extent) and [could
not] proceed today.’’9 By order dated the same day, the
court denied the motion for continuance, stating: ‘‘The
matter was initially scheduled for 2 p.m. today, August
27, 2021; however, it was moved to 3 p.m. due to the
court’s conflict with an ongoing hearing. The court was
ready at 3 p.m.; however, [the court] waited for [the
plaintiff’s counsel] and her client for a reasonable
amount of time before starting the proceedings. The
court was informed of [the plaintiff’s] motion [for con-
tinuance] well into the proceeding.’’10
On September 16, 2021, the plaintiff filed a motion
seeking reargument and reconsideration of the court’s
ruling on his motion for continuance, the ruling on his
motion to seal, and the judgment of dissolution and
attendant orders. On September 17, 2021, the court
denied the plaintiff’s motion for reargument and recon-
sideration. Also on September 17, 2021, the plaintiff
filed a motion to open the dissolution judgment.
Therein, he argued that ‘‘[c]ounsel for the plaintiff was
not able to proceed on [August 27, 2021] and notified
the court, through a colleague11 as soon as she was able
. . . . This case involves the custody of a minor child
as well as the finances of a sixteen (16) year marriage;
a grave injustice and immeasurable harm would result
if the plaintiff were not allowed his right to be heard.’’
(Footnote added.) On September 20, 2021, the court
denied the plaintiff’s motion to open the judgment. This
appeal followed.12
I
The plaintiff’s first claim on appeal essentially chal-
lenges the court’s denial of his motion for continuance.
Specifically, he argues that, ‘‘despite alternatives and
ability to conduct a trial on the merits, the postpone-
ment of which would have prejudiced no one, the trial
court instead chose to proceed without plaintiff’s coun-
sel in an exercise of judicial conduct that can only be
seen as so arbitrary ‘as to vitiate logic.’ ’’ The defendant
responds that the court acted well within its discretion
in declining to continue the matter. We agree with the
defendant.
‘‘The matter of continuance is traditionally within the
discretion of the trial judge, and it is not every denial
of a request for more time that violates due process
even if the party fails to offer evidence or is compelled
to defend without counsel. . . . There are no mechani-
cal tests for deciding when a denial of a continuance
is so arbitrary as to violate due process. 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. . . . [I]f the
reasons given for the continuance do not support any
interference with [a] specific constitutional right, the
[reviewing] court’s analysis will revolve around whether
the trial court abused its discretion. . . .
‘‘Decisions to grant or to deny continuances are very
often matters involving judicial economy, docket man-
agement or courtroom proceedings and, therefore, are
particularly within the province of a trial court. . . .
Whether to grant or to deny such motions clearly
involves discretion, and a reviewing court should not
disturb those decisions, unless there has been an abuse
of that discretion, absent a showing that a specific con-
stitutional right would be infringed. . . .
‘‘Our Supreme Court has articulated a number of
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 resis-
tant to precise cataloguing, such factors revolve around
the circumstances before the trial court at the time it
rendered its decision, including: 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 [movant’s] personal
responsibility for the timing of the request . . . .’’
(Internal quotation marks omitted.) McNamara v.
McNamara, 207 Conn. App. 849, 866–67, 263 A.3d
899 (2021).
In the present case, the trial had been scheduled
approximately six months earlier for the date of August
27, 2021. The plaintiff’s counsel did not file the motion
for continuance of the trial until after the remote pro-
ceeding had begun.13 At the time of trial, the dissolution
action had been pending for more than one year, as it
had been filed in June, 2020. The record reveals a pat-
tern of the plaintiff’s violation of deadlines set by the
court throughout the dissolution proceedings. First, the
plaintiff twice failed to comply with orders directing
him to file a financial affidavit, only filing it after the
defendant filed a motion for contempt. The financial
affidavit he ultimately filed was wholly inadequate, lack-
ing in reliable financial information. Second, the plain-
tiff failed to comply with the court’s trial management
orders, which required him to file written proposed
orders and witness and exhibit lists, among other docu-
ments. Again, the plaintiff only belatedly and partially
complied with the court’s orders after the defendant
filed a motion for sanctions.
Furthermore, as noted previously, the parties had
been involved in dissolution proceedings for approxi-
mately three years, beginning with the 2018 dissolution
action that went to judgment before being opened based
on the plaintiff’s motion and withdrawn by the defen-
dant. The court reasonably could have considered the
impact of the delay on the defendant, who had been a
party to dissolution proceedings for approximately
three years. With respect to the legitimacy of the reason
for the request for continuance, although sudden illness
of a party’s counsel could form a legitimate reason
for a continuance, the motion for continuance in the
present case was not filed until after the start of the
proceeding, and no reason was offered in that motion
for the failure of the plaintiff himself to appear.
On the basis of the foregoing, we conclude that the
court’s denial of the plaintiff’s motion for a continuance,
made after the start of the proceeding, was not an abuse
of its discretion. See, e.g., Watrous v. Watrous, 108
Conn. App. 813, 828, 949 A.2d 557 (2008) (‘‘We are espe-
cially hesitant to find an abuse of discretion when the
motion is made on the day of trial. . . . Every reason-
able presumption in favor of the proper exercise of the
trial court’s discretion will be made.’’ (Internal quota-
tion marks omitted.)).
II
The plaintiff’s next claim on appeal is that the court
abused its discretion in denying his motion to open the
judgment. We disagree.
‘‘The principles that govern motions to open or set
aside a civil judgment are well established. Within four
months of the date of the original judgment, Practice
Book [§ 17-4] vests discretion in the trial court to deter-
mine whether there is a good and compelling reason
for its modification or vacation. . . . The exercise of
equitable authority is vested in the discretion of the
trial court and is subject only to limited review on
appeal.’’ (Internal quotation marks omitted.) Farren v.
Farren, 142 Conn. App. 145, 152, 64 A.3d 352, cert.
denied, 309 Conn. 903, 68 A.3d 658 (2013). ‘‘We do not
undertake a plenary review of the merits of a decision
of the trial court to grant or to deny a motion to open
a judgment. . . . In an appeal from a denial of a motion
to open a judgment, our review is limited to the issue
of whether the trial court has acted unreasonably and
in clear abuse of its discretion. . . . In determining
whether the trial court abused its discretion, this court
must make every reasonable presumption in favor of
its action. . . . The manner in which [this] discretion
is exercised will not be disturbed so long as the court
could reasonably conclude as it did.’’ (Internal quota-
tion marks omitted.) Zilkha v. Zilkha, 167 Conn. App.
480, 494, 144 A.3d 447 (2016).
In the present case, the court summarily denied the
plaintiff’s motion to open the judgment. Although the
denial of a motion to open is a judgment for which an
oral or written decision is required; see Practice Book
§ 64-1 (a) (6); Valenzisi v. Connecticut Education
Assn., 150 Conn. App. 47, 51, 90 A.3d 324 (2014); the
plaintiff did not file a notice pursuant to Practice Book
§ 64-1 (b) with the appellate clerk’s office, nor did he
file a motion asking the court to articulate the factual
and legal basis for its ruling. Given our duty to make
every reasonable presumption in favor of the correct-
ness of the court’s decision; see, e.g., Gordon v. Gordon,
148 Conn. App. 59, 67–68, 84 A.3d 923 (2014); our review
of the record before us leads us to conclude that the
court acted reasonably and did not abuse its discretion
in rejecting the plaintiff’s reasons offered in support of
his motion to open the judgment, namely, counsel’s
sudden illness and a claimed ‘‘immeasurable harm’’ aris-
ing out of the court’s dissolution of the parties’ sixteen
year marriage.14 See Brehm v. Brehm, 65 Conn. App.
698, 706, 783 A.2d 1068 (2001) (court did not abuse
its discretion in denying motion to open dissolution
judgment rendered without defendant present where
defendant was aware of conflict with trial date in
advance and did not request continuance until day of
trial).
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although the plaintiff’s first claim, as phrased in the plaintiff’s statement
of issues, could be construed as challenging the court’s custodial and prop-
erty division orders, the argument contained in the plaintiff’s brief focuses
on the court’s decision to proceed with the dissolution trial in the absence
of the plaintiff and its denial of his motion for continuance. The plaintiff
does not provide any argument or analysis in support of any claim that the
court misapplied the law or abused its discretion in distributing the parties’
marital assets. ‘‘[When] a claim is asserted in the statement of issues but
thereafter receives only cursory attention in the brief without substantive
discussion or citation of authorities, it is deemed to be abandoned.’’ (Internal
quotation marks omitted.) C. B. v. S. B., 211 Conn. App. 628, 630, 273 A.3d
271 (2022). Accordingly, any claim that the court improperly distributed the
parties’ marital assets is deemed abandoned.
In his appellate brief, the plaintiff also raised an unpreserved constitutional
claim. Specifically, he argued that he was deprived of his ‘‘fundamental
liberty interest in the care and custody of his child without due process’’
when the court awarded the defendant sole custody of the parties’ child,
without having heard from the plaintiff, who did not appear on the date of
trial. The parties’ child was born in February, 2005, and attained the age of
eighteen in February, 2023. During oral argument before this court on Janu-
ary 18, 2023, the plaintiff’s counsel conceded that the plaintiff’s unpreserved
claim with respect to custody of the child is moot.
2
The judicial notice scheduling the trial for August 27, 2021, was issued
on February 3, 2021.
3
The defendant filed an updated financial affidavit on August 19, 2021.
The plaintiff did not file an updated financial affidavit, and the court relied
on his June 7, 2021 financial affidavit. See footnote 6 of this opinion.
4
Pursuant to General Statutes § 46b-56c, the court retained jurisdiction
to enter educational support orders for the parties’ child.
5
We note that the financial affidavit filed by the plaintiff was egregiously
lacking in reliable financial information. Under certain categories, including
utilities and transportation, the plaintiff put ‘‘TBD.’’ Debts were not identified
as sole or joint. Certain assets reflect a value of ‘‘TBD,’’ and the affidavit
does not indicate whether those assets are owned solely or jointly.
6
In April, 2021, the court ordered the plaintiff to file a financial affidavit
by April 26, 2021. The plaintiff did not file a financial affidavit in compliance
with the court’s order. On May 3, 2021, the court again ordered the plaintiff
to file a financial affidavit by May 10, 2021. On May 17, 2021, the defendant
filed a motion for contempt on the basis of the plaintiff’s failure to comply,
repeatedly, with the court’s orders. On June 7, 2021, the plaintiff filed a
financial affidavit.
7
The court issued an order stating that it would address the issue at the
beginning of trial but did not thereafter issue a ruling on the motion.
8
In the plaintiff’s principal appellate brief, the plaintiff’s counsel repre-
sents that the amended proposed orders were filed on August 26, 2021. The
official case detail, however, reflects a filing date of August 27, 2021, the
date of the trial.
9
In the plaintiff’s principal appellate brief, his counsel represents: ‘‘[The]
plaintiff’s counsel, a solo practitioner, reached out to the only other attorney
associated with her firm, an intern, to see if he might be able to appear on
her behalf at 3:00 p.m. Although he was unable to appear, the intern assisted
[the] plaintiff’s counsel with the electronic filing (e-filing) of a Motion for
Continuance . . . which was e-mailed directly to the trial court’s attention
via Case Flow Coordinator . . . and opposing counsel at 3:08 p.m. with
the subject heading URGENT: PLEASE SEE MOTIONS FILED WITH THE
COURT TODAY.’’ The email contained in the plaintiff’s appendix, which
also was filed as an exhibit in connection with the plaintiff’s motion for
reargument and reconsideration, indicates that it was sent by Richard L.
Straube, Esq., of Wilson Family Law, LLC.
10
The plaintiff also filed, on the day of trial, a motion to seal his previously
filed ‘‘motion for order to reassign trial date to status conference’’ on the
ground that it contained ‘‘sensitive information.’’ By order issued the same
day, the court denied the motion to seal.
11
See footnote 9 of this opinion.
12
The plaintiff filed two separate appeals, which were consolidated.
13
To the extent that this court were to construe the plaintiff’s motion for
order ‘‘to reassign [the] trial to [a] status conference,’’ filed earlier on the
date of the trial, as, in substance, a request for a continuance, it would not
change our analysis. The motion for order was filed within six hours of the
start of trial, there was no indication in the record that the court was aware
of the motion for order, and the plaintiff’s counsel did not appear for the
proceeding that she requested to have reassigned to a status conference.
14
As noted previously, although the plaintiff’s motion claimed harm arising
out of the determination of custody of the parties’ minor child, the plaintiff’s
counsel, at oral argument before this court, stated that he was not seeking
relief relative to custody, given the age of the parties’ child. See footnote 1
of this opinion.