Baker v. Whitnum-Baker ( 2015 )

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JAMES BAKER v. LISA WHITNUM-BAKER*
Superior Court, Judicial District of Stamford-Norwalk
File No. FA-12-023288-S
Memorandum filed May 23, 2014
Proceedings
Memorandum of decision on defendant’s motions to
open default judgment. Motions denied.
George A. Reilly, Ross M. Kaufman and Jacquelyn
Conlon, for the plaintiff.
Lisa Whitnum-Baker, self-represented, the
defendant.
Opinion
HELLER, J. The marriage of the plaintiff, James
Baker, and the defendant, Lisa Whitnum-Baker, was
dissolved on September 10, 2013 (Munro, J.). On Janu-
ary 8, 2014, after her appeal from the judgment of disso-
lution and three other consolidated appeals had been
dismissed, but while the defendant’s motion to open
judgment and petition for a new trial (#240.01) and
four other consolidated appeals were still pending, the
defendant filed a motion styled, ‘‘motion to open default
judgment,’’ with a supporting affidavit (#249.00). On
January 10, 2014, the defendant filed another motion
to open (#250.00) that was substantially identical to the
previous motion, but without a supporting affidavit. The
defendant seeks in both motions to have the court’s
decisions on her pendente lite motion to dismiss
(#181.00) and her pendente lite motion for contempt
and request for religious based conciliation (#190.00)
opened because she claims they were improperly
entered on default.
The court heard oral argument from the defendant,
who represented herself, on February 24, 2014. The
court has also taken judicial notice of the record in the
dissolution trial; the contents of the court file; relevant
prior proceedings in this case; memoranda of decision
and orders of the court in related matters; and the
appellate history of this litigation.
Having carefully considered the relevant and credible
evidence offered and the court records judicially
noticed, the court denies the defendant’s motions to
open default judgment for the reasons set forth below.
I
The plaintiff and the defendant were married on
March 21, 2012. The plaintiff was approximately eighty-
six years old and the defendant was approximately fifty-
two years old at the time of the marriage. They resided
together for approximately seven to ten days following
the marriage. Seventy-seven days after the parties were
married, the plaintiff commenced an action, returnable
June 26, 2012, to dissolve his marriage to the defendant.
The defendant filed an answer and cross complaint
on October 23, 2012 (#122.00), and an amended cross
complaint on February 20, 2013 (#130.00). The plaintiff
answered the amended cross complaint on September
9, 2013 (#216.00).
The dissolution trial was scheduled for September 9
and 10, 2013, before the Hon. Lynda Munro. The defen-
dant filed three emergency motions for a continuance
(#184.00; #185.00; #186.00). The court (Munro, J.)
denied the motions on September 5, 2013.
The dissolution trial commenced on September 9,
2013. The defendant represented herself,1 and she
actively participated in the proceedings before the
lunch recess. The court denied the defendant’s motion
to disqualify counsel for the plaintiff (#192.00; #193.00)
after hearing testimony from the plaintiff’s son and
inquiring of the plaintiff directly. The court advised
the defendant that her remaining motions would be
considered when she proceeded on her cross com-
plaint.
The plaintiff testified as part of his direct case, and
the defendant had an opportunity to cross-examine him.
Counsel for the plaintiff also called the defendant as a
witness. Following her testimony, the defendant
responded with a narrative on her own behalf. After
the plaintiff rested, the defendant called her former
attorney to testify in support of her motions for a contin-
uance and her cross complaint.
The defendant advised the court at the beginning of
the proceedings on September 9, 2013, that she had to
appear in the criminal court the following day. Judge
Munro instructed the defendant to contact the clerk’s
office during the morning recess to request a continu-
ance. When the court inquired of the defendant as to
whether she had done so, the defendant responded,
‘‘No,’’ and said, ‘‘I have bigger fish to fry than that.’’
The defendant said that she had served subpoenas
on twenty witnesses, who had not appeared for the
trial. She asked that the court issue capiases for the
nonappearing witnesses. Judge Munro told the defen-
dant that if she wanted capiases issued she would have
to produce her process server following the lunch
recess, so that the court could be satisfied that he was
an ‘‘indifferent person,’’ and that the witnesses had been
properly served.
The defendant did not appear in court following the
lunch recess. Judge Munro stated that a call had come
into the clerk’s office reporting that the defendant’s car
had broken down and she would not be returning to
court that day. The court also indicated that the defen-
dant had been advised that she needed to find another
means of transportation to the courthouse. When the
defendant did not appear by 3 p.m., the court adjourned
the proceedings until 11:30 a.m. on September 10, 2013.
The trial resumed on September 10, 2013, at 11:35
a.m. The defendant did not appear. Judge Munro stated
that the Chief Clerk of the Stamford court had arranged
to have the defendant’s court date in Bridgeport contin-
ued so that a competing court appearance had not
delayed the defendant from appearing that morning.
The court determined that the defendant had not availed
herself of the opportunity to appear and present wit-
nesses and evidence on her cross complaint, her two
motions to dismiss, and her motion for contempt and
request for religious based conciliation. After brief clos-
ing remarks from counsel for the plaintiff, the court
denied the defendant’s motion to dismiss (#181.00;
#183.00) and her request for religious based conciliation
(#190.00). The court dismissed the defendant’s motion
for contempt (#190.00). The court denied the defen-
dant’s cross complaint and rendered judgment for the
plaintiff on the cross complaint. With respect to the
plaintiff’s complaint, the court entered findings on the
record, including that the marriage of the parties had
broken down irretrievably, and ordered that the mar-
riage be dissolved. The court did not order any alimony
for the defendant.
Before the court concluded its decision on the record,
Attorney Cayo advised that the defendant had called
and she would be there in thirty minutes. Judge Munro
addressed the remaining issue of sanctions and
recessed until 12:34 p.m. When the proceedings
resumed, the defendant was not present. The court
noted her absence and announced that the court orders
would stand. Court was then adjourned.
On September 27, 2013, the defendant appealed from
the judgment of dissolution (AC 36132);2 the denial of
her motion to dismiss (#183.00) (AC 36131);3 the denial
of her motions for disqualification (#192.00; #193.00)
(AC 36133);4 and the denial of her motion to dismiss
(#181.00) (AC 36134).5 On September 30, 2013, the
defendant appealed from the denial of her motion to
reargue/reconsider (#220.00) (AC 36135);6 the court’s
ruling on her amended cross complaint (#147.00) (AC
36136);7 the court’s order holding her in contempt
(#219.00) (AC 36137);8 and the court’s ruling on her
motion for contempt and request for religious based
conciliation (#190.00) (AC 36138).9 The Appellate Court
acknowledged receipt of the defendant’s eight consoli-
dated appeals—AC 36131 to AC 36138—on November
1, 2013.
On November 19, 2013, the Appellate Court issued
four orders dismissing consolidated appeals AC 36132
(appeal from the dissolution judgment), AC 36134
(appeal from the denial of the motion to dismiss), AC
36135 (appeal from the denial of the motion to reargue),
and AC 36137 (appeal from the order holding the defen-
dant in contempt). Each order stated that the appeal
was dismissed for the defendant’s failure to comply
with an order of the court, dated November 8, 2013, that
ordered the dismissal of the appeal unless the defendant
filed the documents required by Practice Book § 63-4
and, if a transcript was ordered for the appeal, a court
reporter’s written acknowledgment of the transcript
order, with an estimated delivery date, on or before
November 18, 2013.
The defendant filed a motion to open and petition
for a new trial (#240.01) on October 30, 2013, while her
eight consolidated appeals were pending. The eviden-
tiary hearing on the defendant’s motion to open and
petition for a new trial took place on January 21, 2014,
after her appeal from the dissolution judgment and
three of the remaining seven appeals had been dis-
missed. The court permitted the defendant to supple-
ment the record from the January 21, 2014 evidentiary
hearing on March 31, 2014.
On February 11, 2014, the Appellate Court, after a
hearing, dismissed the defendant’s four remaining con-
solidated appeals—AC 36131, AC 36133, AC 36136, and
AC 36138. These appeals were dismissed for lack of a
final judgment because the defendant’s appeal from
the judgment of dissolution, AC 36132, was previously
dismissed on November 19, 2013, and the four
remaining consolidated appeals were not taken from
appealable final judgments.
The defendant moved for reargument in the Appellate
Court on February 20, 2014. She asked that her appeal
of the dissolution judgment, AC 36132, as well as the
four consolidated appeals that were dismissed on Feb-
ruary 11, 2014, be reinstated. On March 6, 2014, the
Appellate Court denied the defendant’s motion to rear-
gue (#258.00).
On March 19, 2014, the defendant filed a motion to
open judgment in the Appellate Court, seeking to open
the November 19, 2013 order dismissing AC 36132, her
appeal from the judgment of dissolution (#260.00). The
Appellate Court denied the defendant’s motion to open
judgment on April 16, 2014 because the motion was
untimely and the defendant had failed to file her Prac-
tice Book § 63-4 documents specifically for AC 36132
(#261.00).
The court (Heller, J.) denied the defendant’s motion
to open and petition for a new trial (#240.01) on May
21, 2014 (#265.00).
II
The defendant seeks to have the court’s rulings on
her motion to dismiss and her motion for contempt and
request for religious based conciliation opened under
Practice Book §§ 17-33 and 17-43. The provisions of
Practice Book § 17-43 are applicable to family matters
pursuant to Practice Book § 25-38.10 Practice Book § 17-
43 (a) provides in pertinent part that ‘‘[a]ny judgment
rendered or decree passed upon a default or nonsuit
may be set aside within four months succeeding the
date on which notice was sent, and the case reinstated
on the docket on such terms in respect to costs as the
judicial authority deems reasonable, upon the written
motion of any party or person prejudiced thereby, show-
ing reasonable cause, or that a good cause of action or
defense in whole or in part existed at the time of the
rendition of such judgment or the passage of such
decree, and that the plaintiff or the defendant was pre-
vented by mistake, accident or other reasonable cause
from prosecuting or appearing to make the same. . . .’’
Practice Book § 17-43 (a).11
Practice Book § 17-43 provides for opening ‘‘[a]ny
judgment rendered or decree passed upon a default or
nonsuit’’—it is not a means by which a party can assert
a postjudgment challenge to a court’s ruling on a pen-
dente lite motion in a dissolution proceeding. Once a
final judgment of dissolution has been entered, a pen-
dente lite order ceases to exist. Sweeney v. Sweeney,
271 Conn. 193, 202, 856 A.2d 997 (2004). ‘‘Pendente lite
orders necessarily cease to exist once a final judgment
in the dispute has been rendered because their purpose
is extinguished at that time.’’ Connolly v. Connolly, 191
Conn. 468, 480, 464 A.2d 837 (1983). The court’s denial
of the defendant’s motion to dismiss and her motion
for contempt and request for religious based concilia-
tion was superseded by the final judgment of dissolution
of the parties’ marriage.
In addition, even if Practice Book § 17-43 applied to
rulings on pendente lite motions, it would be inapplica-
ble here because the court did not decide the defen-
dant’s motions upon her default. Although the
defendant claims to have been sent on a ‘‘wild goose
chase,’’12 the record is clear that she was present when
the trial of this dissolution action began, and she
actively participated in the proceedings while she was
in the courtroom. The defendant represented herself,
she questioned the plaintiff’s son on her motion to dis-
qualify, she cross-examined the plaintiff, she testified
during the plaintiff’s direct case, and she offered a narra-
tive on her own behalf. She called her former attorney
to testify on her direct case, in support of her motions
for a continuance and her cross complaint. The defen-
dant did not return to court on the afternoon of Septem-
ber 9, 2013, despite being instructed to do so. In
addition, the defendant was not prevented by ‘‘mistake,
accident or other reasonable cause’’ from appearing on
September 10, 2013. Her failure to appear on September
10, 2013, was due in large measure to her refusal to
call the criminal court and request a continuance as
the court (Munro, J.) had directed.
The court’s rulings on the defendant’s motion to dis-
miss and motion for contempt and request for religious
based conciliation were the subject of separate appeals
by the defendant to the Appellate Court13 and they
were—or certainly could have been—addressed in the
defendant’s September 29, 2013 appeal of the judgment
of dissolution. If the defendant had properly perfected
her appeal, she would have been afforded appellate
review of the court’s denial of her motion to dismiss
and motion for contempt and request for religious based
conciliation. Her failure to comply with the rules and
orders of the Appellate Court does not give rise to a
finding of ‘‘mistake, accident or other reasonable cause’’
that would warrant opening the dissolution judgment
under Practice Book § 17-43 to revisit these pendente
lite rulings.14
ACCORDINGLY, for the reasons set forth above, the
court denies the defendant’s motions to open default
judgment (#249.00; #250.00).
* Affirmed. Baker v. Whitnum-Baker, 161 Conn. App. 227, A.3d
(2015).
1
The defendant said that she did not want or need her attorney, Andre
Cayo, Esq., to represent her. Judge Munro asked Attorney Cayo to remain
in the courtroom and act as standby counsel. The defendant later asked that
Attorney Cayo leave, and the court granted his motion to withdraw (#180.01).
2
The appeal was entered in the Superior Court file as #226.00 and #237.00.
It was docketed in the Appellate Court as AC 36132.
3
This appeal was entered in the Superior Court file as #225.00 and #236.00.
It was docketed in the Appellate Court as AC 36131.
4
This appeal was entered in the Superior Court file as #227.00. The appeal
of the court’s ruling on #192.00 was also entered in the court file as #235.00.
The appeal was docketed in the Appellate Court as AC 36133.
5
This appeal was entered in the Superior Court file as #229.00 and #234.00.
The appeal was docketed in the Appellate Court as AC 36134.
6
This appeal was entered in the Superior Court file as #230.00. The appeal
was docketed in the Appellate Court as AC 36135.
7
This appeal was entered in the Superior Court file as #231.00. The appeal
was docketed in the Appellate Court as AC 36136.
8
This appeal was entered in the Superior Court file as #232.00. The appeal
was docketed in the Appellate Court as AC 36137.
9
This appeal was entered in the Superior Court file as #228.00 and #233.00.
The appeal was docketed in the Appellate Court as AC 36138.
10
Practice Book § 17-33 is not applicable to family matters, as defined.
11
Practice Book § 17-43 mirrors the language of General Statutes § 52-
212, which provides for opening a judgment rendered upon a nonsuit or
default. The court (Heller, J.) denied the defendant’s motion to open the
judgment of dissolution on May 21, 2014 (#265.00).
12
Affidavit of the defendant dated January 8, 2014 (#249.00).
13
The defendant appealed the denial of her motion to dismiss (docketed
at AC 36134) on September 27, 2013. She appealed from the denial of her
motion for contempt and request for religious based conciliation (docketed
at AC 36138) on September 30, 2013.
14
The defendant’s status as a self-represented litigant has no bearing on
the court’s analysis. ‘‘Although we allow pro se litigants some latitude, the
right of self-representation provides no attendant license not to comply with
relevant rules of procedural and substantive law.’’ (Internal quotation marks
omitted.) Murphy v. Zoning Board of Appeals, 86 Conn. App. 147, 157 n.7,
860 A.2d 764 (2004), cert. denied, 273 Conn. 910, 870 A.2d 1080 (2005).