Mensah v. Mensah

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ISABELLA MENSAH v. CHARLES MENSAH
(AC 37412)
DiPentima, C. J., and Beach and Schaller, Js.
Argued March 2—officially released July 26, 2016
(Appeal from Superior Court, judicial district of
Hartford, Ficeto, J. [motion for continuance; orders].)
Isabella Mensah, self-represented, the appellant
(plaintiff).
Thomas S. Rome, for the appellee (defendant).
Opinion
BEACH, J. In this postjudgment marital dissolution
matter, the plaintiff, Isabella Mensah, appeals from the
judgment of the trial court. She claims that the court
abused its discretion by (1) denying her motion for a
continuance, and (2) making improper financial orders.
We affirm the judgment of the court.
On October 27, 2014, the court issued its memoran-
dum of decision, in which it recounted the relevant
procedural history of the case and made the following
factual findings. ‘‘This matter comes before the court
by way of a remand from the Appellate Court. [See
Mensah v. Mensah, 145 Conn. App. 644, 75 A.3d 92(2013) (Mensah I).] The dissolution was tried before
the court on December 12, 15, and 16, 2011. [See Mensah
v. Mensah, judicial district of Hartford, Docket No. FA-
10-4051277-S (February 23, 2012).] A decision dissolving
the marriage and entering the financial orders was
issued on February 23, 2012. The decision was appealed
and judgment was reversed as to the financial orders
only.
‘‘The matter was scheduled for five days of trial com-
mencing September 15, 2014. The trial did not com-
mence until September 17. Counsel for the plaintiff
[Attorney Josephine Smalls Miller (Miller)] and the
plaintiff did not appear. The reasons for the plaintiff’s
failure to appear and the court’s ensuing actions are
articulated in the court file.
‘‘The uncontroverted evidence is as follows. The par-
ties were married for over twenty years. The parties’
three children have reached the age of majority; two
children are under the age of twenty-three. The defen-
dant is an independent contractor for a trucking com-
pany. The plaintiff is a long-term employee of the United
States Postal Service. . . .
‘‘The plaintiff’s pension with the U.S. Postal Service
had an accrued benefit of $1656 per month payable at
age sixty as of December 31, 2011. The January 1, 2012
value of the accrued benefit was $229,744. The marital
portion of the pension was calculated at $223,269. The
plaintiff is also holder of a Thrift Savings Plan. . . .
‘‘The parties are owners of the marital home located
at 101 Rockville Road, Broad Brook . . . . The plaintiff
has had exclusive possession of the home since April,
2011. . . . The plaintiff has not made mortgage pay-
ments on the home since she took possession. . . .
The home is now ‘under water.’ [The defendant] testi-
fied that he and the plaintiff paid $120,000 toward the
purchase price of the home. . . . The court notes . . .
that based on the evidence produced by the defendant,
the equity in the home at the time of dissolution was
approximately $86,000.’’
After making its findings, the court issued the follow-
ing orders relevant to this appeal: (1) no party was
awarded alimony; (2) the marital home was awarded
to the plaintiff; she was ordered to hold the defendant
harmless on the mortgage, arrearages, interest, penal-
ties, and associated expenses; and she was ordered to
pay the defendant $43,000, representing one half of the
equity in the home; and (3) the defendant was awarded
a pro rata share of the plaintiff’s pension benefits. This
appeal followed.
I
The plaintiff claims that the court abused its discre-
tion in failing to continue the trial of this matter because
Miller ‘‘had a significant health issue’’ that prevented
her from attending trial. We are not persuaded.
We first set forth our standard of review and the
relevant legal principles that guide our analysis. ‘‘The
determination of whether to grant a request for a contin-
uance is within the discretion of the trial court, and
will not be disturbed on appeal absent an abuse of
discretion. . . . A reviewing court is bound by the prin-
ciple that [e]very reasonable presumption in favor of
the proper exercise of the trial court’s discretion will
be made. . . . To prove an abuse of discretion, an
appellant must show that the trial court’s denial of a
request for a continuance was arbitrary. . . . There are
no mechanical 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. . . .
In the event that the trial court acted unreasonably in
denying a continuance, the reviewing court must also
engage in harmless error analysis. . . .
‘‘Among the factors that may enter into the court’s
exercise of discretion in considering a request for a
continuance are the timeliness of the request for contin-
uance; the likely length of the delay; the age and com-
plexity 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 legiti-
macy of the reasons proffered in support of the request;
[and] the [movant’s] personal responsibility for the tim-
ing of the request . . . . We are especially hesitant to
find an abuse of discretion where the court has denied
a motion for continuance made on the day of the
trial. . . .
‘‘Lastly, we emphasize that an appellate court should
limit its assessment of the reasonableness of the trial
court’s exercise of its discretion to a consideration of
those factors, on the record, that were presented to the
trial court, or of which that court was aware, at the
time of its ruling on the motion for a continuance.’’
(Internal quotation marks omitted.) State v. Godbolt,
161 Conn. App. 367, 374–75, 127 A.3d 1139 (2015), cert.
denied, 320 Conn. 931, 134 A.3d 621 (2016).
Additional facts demonstrate that the court did not
abuse its discretion by denying the plaintiff’s motion
for a continuance. The trial was scheduled to begin on
September 15, 2014, but on that day the court received
a motion for a continuance from Miller in which she
stated that she had been ‘‘compelled to seek medical
treatment and consequently is unable to be in atten-
dance at trial at the present time.’’ In response, the
court continued the trial until September 17, 2014, and
entered an order that Miller ‘‘shall appear and show
cause as to why the court should not enter the following
sanctions, including but not limited to: sanctions, fines,
attorney’s fees, preclusion of evidence, and referral to
the grievance committee. . . . [Miller] shall provide
proof of medical treatment on said date.’’
On September 17, 2014, the court received a letter
from Miller that read: ‘‘I am in receipt of the order dated
September 15, 2014. I will not be able to be present on
the continued trial scheduled for today due to a medical
condition that requires attention. On September 14, I
visited a walk-in clinic and discovered a condition that
caused me to seek further medical attention on Septem-
ber 15. . . . Efforts to resolve this medical issue are
continuing. . . . I respectfully decline to place my
health at further risk and renew my motion to resched-
ule the trial of this matter.’’ Miller attached two docu-
ments to her letter—one indicated that Miller visited a
clinic on September 14, 2014, and the other indicated
that she had been seen again on September 15, 2014.
No further information regarding her visits, health, or
ability to come to court was provided.
At the hearing on September 17, 2014, the court found
that the information Miller had provided was not a
sufficient basis upon which to grant the continuance.
Notably, the court found: (1) the September 15, 2014
motion was not timely because it had not been received
by the court until ten o’clock on the morning the trial
was set to begin; (2) the case already had been substan-
tially delayed and that another continuance would set
the date back ‘‘at least another six to seven months, if
not longer’’; (3) the case was a 2010 dissolution action,
and the court ‘‘has gone . . . to extraordinary mea-
sures . . . in an attempt to . . . resolve the financial
issues that these parties have, including at least four
status conferences, a continuance of a trial, and the
appointment of a special master for discovery . . . in
an attempt to resolve the ongoing discovery issues’’;
(4) Miller did not provide ‘‘enough information to say
whatever her medical condition may or may not be’’;
(5) the court had already granted a continuance in Feb-
ruary, 2014; (6) Miller had filed a motion for a continu-
ance the week prior, on September 9, 2014, and it had
been denied; and (7) Miller had not complied with the
standing orders of the court by not providing the pro-
posed orders, witness lists, ‘‘or any other information
that’s required under the court’s standing order.’’
The plaintiff has not met her burden of showing that
the court acted unreasonably or arbitrarily in denying
her motion for a continuance. The court concluded that
Miller’s explanation for needing the continuance did not
constitute good cause because it contained no specific
information about Miller’s condition or whether she
actually had been incapable of attending trial because
of health concerns. The court’s findings are supported
by the record and provide a well reasoned basis for the
court’s denial of the plaintiff’s motion for a continuance.
Our case law supports the court’s decision. See State
v. Beckenbach, 198 Conn. 43, 48, 501 A.2d 752 (1985)
(denying continuance when, as in present case, ‘‘[n]o
specific or even approximate date was given to the
court as to when [the attorney] might have been able to
conduct the defendant’s trial. The trial court, therefore,
could reasonably have viewed the motion as seeking a
continuance of unspecified duration.’’); Peatie v. Wal-
Mart Stores, Inc., 112 Conn. App. 8, 11–13, 961 A.2d
1016 (2009) (upholding denial of motion for continu-
ance when trial court already had granted continuance
for four months and plaintiff did not make motion until
morning of hearing); Bove v. Bove, 93 Conn. App. 76, 84,
888 A.2d 123 (noting Connecticut courts are ‘‘especially
hesitant to find an abuse of discretion where the court
has denied a motion for continuance made on the day
of trial’’ [internal quotation marks omitted]), cert.
denied, 277 Conn. 919, 895 A.2d 788 (2006); McDuffee
v. McDuffee, 39 Conn. App. 412, 417, 664 A.2d 1164(1995) (holding court did not abuse discretion by deny-
ing mother’s request for continuance in custody hearing
because she was defendant in criminal case, her avail-
ability was ‘‘a matter of speculation . . . [and] court
cannot be charged with failing to anticipate accurately
the date’’ mother would be available for hearing [inter-
nal quotation marks omitted]).
Our Supreme Court faced a similar issue in Thode v.
Thode, 190 Conn. 694, 462 A.2d 4 (1983), and it con-
cluded that the trial court did not abuse its discretion
by denying a motion for a continuance. There, the defen-
dant’s attorney did not report to court for trial following
the denial of a previous request by the attorney for a
continuance. The court denied the defendant’s motion
for a continuance, and, although the defendant wanted
to be represented by the absentee attorney, the defen-
dant was represented by an associate of his attorney’s
firm. Id., 696. The Supreme Court concluded that the
denial of the defendant’s motion was not an abuse of
discretion, but it noted that it was ‘‘not insensitive to
the apparent harshness of any decision by a court that
may be perceived as punishing the client for the trans-
gressions of his or her attorney.’’ Id., 698. In the circum-
stances of this case, we share this sentiment of our
Supreme Court even though we conclude that the trial
court’s action was ‘‘a permissible exercise of the court’s
discretion to deny a continuance.’’ Id., 699.
The trial court in the present matter carefully consid-
ered a number of factors in reaching its decision to
deny the plaintiff’s motion. The plaintiff has not met her
burden of showing that the court acted unreasonably
or arbitrarily in doing so. Accordingly, we reject the
plaintiff’s claim that the court abused its discretion.
II
The plaintiff raises several additional claims in her
brief, which stem functionally from the court’s denial
of her motion for a continuance. She claims that the
court abused its discretion by (1) failing to examine
the defendant in sufficient detail regarding his income,
(2) not awarding the plaintiff alimony, (3) failing to
recalculate the defendant’s child support obligation, (4)
not allocating the real property owned by the defendant
in Ghana, (5) awarding all liabilities regarding the mari-
tal residence against the plaintiff, and (6) awarding the
defendant one half of the plaintiff’s pension benefits.
We do not agree.
We first set forth our standard of review. ‘‘Our stan-
dard of review for financial orders in a dissolution
action is clear. The trial court has broad discretion in
fashioning its financial orders, and [j]udicial review of
a trial court’s exercise of [this] broad discretion . . .
is limited to the questions of whether the . . . court
correctly applied the law and could reasonably have
concluded as it did. . . . In making those determina-
tions, we allow every reasonable presumption . . . in
favor of the correctness of [the trial court’s] action.
. . . That standard of review reflects the sound policy
that the trial court has the unique opportunity to view
the parties and their testimony, and is therefore in the
best position to assess all of the circumstances sur-
rounding a dissolution action, including such factors as
the demeanor and the attitude of the parties.’’ (Citation
omitted; internal quotation marks omitted.) Casey v.
Casey, 82 Conn. App. 378, 383, 844 A.2d 250 (2004).
As to the factual findings made by the court underly-
ing its financial orders, these ‘‘findings of a trial court
must stand . . . unless they are clearly erroneous or
involve an abuse of discretion. . . . A finding of fact
is clearly erroneous when there is no evidence in the
record to support it . . . or when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction
that a mistake has been committed. . . . Because it is
the trial court’s function to weigh the evidence and
determine credibility, we give great deference to its
findings. . . . In reviewing factual findings, [w]e do not
examine the record to determine whether the [court]
could have reached a conclusion other than the one
reached. . . . Instead, we make every reasonable pre-
sumption . . . in favor of the trial court’s ruling.’’ (Cita-
tion omitted; internal quotation marks omitted.)
Hammel v. Hammel, 158 Conn. App. 827, 832–33, 120
A.3d 1259 (2015).
The court, in rendering its financial orders, ‘‘consid-
ered all the credible evidence presented to it along with
its observation of the demeanor and attitude of the
parties. All the exhibits have been carefully reviewed
and considered, as well as relevant common law . . . .’’
Because neither Miller nor the plaintiff appeared for the
trial, the court considered the evidence in this hearing
‘‘uncontroverted . . . .’’
The plaintiff first asserts that the court ‘‘should have
inquired of [the] defendant why his financial affidavit
and his trial testimony [fail] completely to mention [his
income producing business that involved the purchase
and sale of motor vehicles shipped to Ghana].’’ This
line of inquiry may have been appropriate for cross-
examination of the defendant, but the plaintiff chose
not to attend trial. The court was under no obligation
to cross-examine the defendant on the behalf of the
absentee plaintiff. The plaintiff argues that our decision
in Mensah I required the court to engage in a more
active role in view of the remand from this court. See
Mensah v. Mensah, supra, 145 Conn. App. 654. We have
reviewed carefully this court’s decision in Mensah I
and find no such directive. Rather, this court simply
remanded the case for a new hearing on all financial
issues. The court held the requisite hearing, but the
plaintiff presented no evidence and was not present to
cross-examine the defendant about his finances; there-
fore, the court’s resulting financial orders are derived
only from the evidence that it had before it. The plaintiff
suggests that the court should have relied on evidence
that the plaintiff had alluded to in the previous trial
pertaining to the defendant’s property and business in
Ghana. See Mensah v. Mensah, supra, Superior Court,
Docket No. FA-10-4051277-S. The court was not com-
pelled to act, in effect, as an advocate for the plaintiff;
‘‘[i]t is not the province of this or any court to speculate
as to evidence not before it.’’ Demartino v. Demartino,
79 Conn. App. 488, 497–98, 830 A.2d 394 (2003).
The plaintiff next argues that the court abused its
discretion in failing to award her alimony because the
defendant had been dishonest at the first trial regarding
his income. The court stated in its memorandum of
decision that it had considered the criteria set forth
in General Statutes § 46b-82 as to the assignment of
alimony.1 The plaintiff argues, simply, that her twenty-
one year marriage to the defendant warranted alimony
and that the defendant had been dishonest regarding his
income.2 The length of the parties’ marriage, however, is
but one factor that the court considered under § 46b-82
and is not in itself necessarily dispositive in determining
whether alimony is appropriate. The court considered
the range of factors in § 46b-82, and it was not an abuse
of discretion to decline to award the plaintiff alimony
solely on the basis of the marriage’s duration. Accord-
ingly, the plaintiff’s claim fails.
The plaintiff also contends that the court abused its
discretion by not recalculating the defendant’s child
support obligation. She argues that ‘‘there was no testi-
mony forthcoming from [the] defendant regarding child
support . . . .’’ As we have already stated, it is not the
obligation of the court to elicit testimony or to cross-
examine witnesses on behalf of absentee parties. It was
not, therefore, an abuse of the court’s discretion to rely
on the evidence that had been offered at trial—namely,
testimony that the parties’ youngest child had reached
the age of majority—in determining that child support
did not need to be recalculated.
Similarly, the plaintiff’s next argument—that the
court abused its discretion by making no allocation of
the defendant’s alleged property in Ghana—also fails.
The defendant testified that he held no title to property
in Ghana. Prior to trial, the plaintiff did not comply with
the court’s standing orders to resolve ongoing discovery
issues, and to submit proposed orders, witness lists,
and any other information required by the court. The
court, then, had no evidence before it to suggest that the
defendant’s testimony was not truthful. The plaintiff’s
argument that ‘‘[e]ven [if] no evidence was presented
regarding the valuation of these properties, [the] court
should have acknowledged . . . the parties’ financial
affidavits that these were marital assets and attempted
to divide said properties. . . . A reasonable remedy
could and should have been fashioned that permitted
[the plaintiff] to recover some of the value of these
marital real property assets.’’ It was not an abuse of
discretion for the court to decline to attempt to allocate
properties which, according to testimony, were not
owned by the defendant and about which ‘‘no evidence
was presented . . . .’’
The plaintiff’s next two arguments—that the court
abused its discretion by assigning all liabilities regard-
ing the marital residence to the plaintiff and awarding
to the defendant one half of her pension benefits—are
without merit. She argues that the court’s decision did
not result in ‘‘an equitable distribution of assets’’ in light
of evidence that had been presented at the first trial.3
Neither of these claims has any basis in the record of
this case or in our case law.
Finally, the plaintiff argues that the court improperly
awarded attorney fees to the defendant. She asserts
that the award of attorney fees ‘‘[gives] the appearance
. . . that every effort has been made to ensure payment
[of] [defense] counsel, even to the detriment of [the]
[p]laintiff.’’ On the record in this case, we conclude that
this claim is without merit.
For these reasons, we conclude that the court neither
abused its discretion nor made clearly erroneous find-
ings as to any of the issues raised by the plaintiff in
this matter.
The judgment is affirmed.
In this opinion the other judges concurred.
1
‘‘[General Statutes §] 46b-82 governs awards of alimony. That section
requires the trial court to consider the length of the marriage, the causes
for the . . . dissolution of the marriage . . . the age, health, station, occu-
pation, amount and sources of income, vocational skills, employability,
estate and needs of each of the parties and the award, if any, which the
court may make pursuant to [General Statutes §] 46b-81, and, in the case
of a parent to whom the custody of minor children has been awarded, the
desirability of such parent’s securing employment in ordering either party
to pay alimony to the other. In awarding alimony, [t]he court must consider
all of these criteria. . . . It need not, however, make explicit reference to
the statutory criteria that it considered in making its decision or make
express findings as to each statutory factor.’’ (Internal quotation marks
omitted.) Kovalsick v. Kovalsick, 125 Conn. App. 265, 271, 7 A.3d 924 (2010).
2
The plaintiff analogizes her case to the matter of Brown v. Brown, 130
Conn. App. 522, 24 A.3d 1261 (2011). In Brown, the plaintiff husband appealed
from the trial court’s award of alimony to the defendant wife. The plaintiff
argued that the court did not have before it sufficient evidence of his past
or present income and had made no explicit finding of his income at the
time of his divorce. The court had found that the plaintiff enjoyed a lavish
lifestyle and wanted for nothing, and it noted that the plaintiff’s testimony
was ‘‘self-serving.’’ (Internal quotation marks omitted.) Id., 529. On appeal,
this court affirmed the trial court’s alimony award, holding that the ‘‘apparent
plethora of evidence regarding the plaintiff’s lifestyle and personal expenses’’
provided the trial court’s award sufficient evidentiary support. Id.
Brown is not applicable to the present matter. Here, the plaintiff does
not claim that the court lacked sufficient evidence in reaching its alimony
determination, as did the plaintiff in Brown. Instead, she argues that the
defendant was dishonest, and, like the ‘‘ ‘self-serving’ ’’ husband in Brown;
id.; he should have to be made to pay alimony. We reject this argument
entirely. The plaintiff presented no evidence at trial that the defendant was
dishonest, and the court made no finding that the defendant was not credible
in its weighing of the factors in § 46b-82. ‘‘[I]t is axiomatic that the credibility
of witnesses, the finding of facts, and the drawing of inferences are all
within the trier’s province. It is futile to assign error involving the weight
of testimony or the credibility of witnesses.’’ (Internal quotation marks
omitted.) Petro v. Petro, 31 Conn. App. 582, 583, 626 A.2d 791, cert. denied,
227 Conn. 907, 632 A.2d 694 (1993).
The court considered ‘‘all the credible evidence presented to it along with
its observation of the demeanor and attitude of the parties’’ in reaching its
decision. The court was within its discretion to choose whether to rely on
the defendant’s testimony and the evidence that he presented, and the
plaintiff cannot prevail on her claim the court abused that discretion. She
was not present to cross-examine the defendant or introduce impeaching
evidence.
3
Indeed, the court stated at trial on September 17, 2014, that ‘‘you have
to assume that anything that’s [from] the previous trial, the court isn’t going
to have.’’