DocketNumber: No. FA 96-0154265 S
Citation Numbers: 1998 Conn. Super. Ct. 5082, 22 Conn. L. Rptr. 175
Judges: KEVIN TIERNEY, J.
Filed Date: 4/27/1998
Status: Non-Precedential
Modified Date: 4/17/2021
FACTS
On January 1, 1997 the plaintiff wife commenced this action seeking a dissolution of marriage, custody and financial orders. The defendant husband was served with the writ, summons and complaint in Connecticut. He filed an appearance by counsel of record. Thereafter, while the action was pending, the plaintiff and the minor children moved from Connecticut to New Hampshire Various motions were filed by the parties. Numerous pendente lite orders were issued by the trial court. Some of the motions required an evidentiary hearing. Orders entered on numerous pendente lite motions The matter has not gone to judgment.
In addition to this Connecticut matter, the plaintiff has commenced a number of injunctive and domestic violence proceedings in New Hampshire; in effect preventing the defendant from going to New Hampshire to visit the children. Visitation has been an ongoing controversy between the parties.
After pendente lite orders concerning visitation were entered by this court on September 1, 1997, the plaintiff withdrew her Connecticut dissolution action. No dissolution action is pending in New Hampshire. On October 1, 1997 the defendant filed a Motion to Establish Visitation. The plaintiff then filed this Motion to Dismiss addressed to the defendant's visitation motion. Both parties filed a Memorandum of Law and appeared at oral arguments with their respective clients on October 14, 1997 on the Motion to Dismiss.
DISCUSSION OF LAW
A family matter is a civil action and is controlled by civil statutory and Practice Book procedures. Smith .v Smith,
If the plaintiff, in any action returned to court and entered in the docket, does not, on or before the opening of the court on the second day thereof, appear by himself or attorney to CT Page 5084 prosecute such action, he shall be nonsuited, in which case the defendant, if he appears, shall recover cost from the plaintiff. The plaintiff may withdraw any action so returned to and entered in the docket of any court, before the commencement of a hearing on the merits thereof After the commencement of a hearing on an issue of fact in any such action, the plaintiff may withdraw such action, or any other party thereto may withdraw any cross complaint or counter claim filed therein by him, only by leave of court for cause shown.
The trial of the dissolution action has not commenced. The plaintiff's withdrawal was not granted by leave of court for cause shown as required by C.G.S. §
An appeal from a decision of a trial court is only permitted by statute C.G.S. §§
In concluding that temporary custody orders are appealable, the Supreme Court noted that "temporary custody orders are immediately appealable because an immediate appeal is the only reasonable method of ensuring that the important rights surrounding the parent-child relationship are adequately protected." Madigan v. Madigan, supra,
The plaintiff has filed a Motion to Dismiss which impacts jurisdiction. "When a question of jurisdiction is brought to the court's attention, that issue must be resolved before the court can move on to other matters" Isaac v. Mount Sinai Hospital,
C.G.S. §
The plaintiff argues that where a case has been withdrawn, the court, unless it has restored the case to the docket, cannot proceed with it further, unless and until the case has been restored to the docket either by stipulation or upon the granting of a motion to restore it upon a proper showing. Lusas v. St.Patrick's Roman Catholic Church Corp,
CONCLUSION
Although not exactly on point, the Supreme Court has discussed this issue in case of Smith v. Smith,
A number of cases have discussed whether various pretrial procedures are a "hearing on an issue of fact in any such action" and/or a "hearing on the merits thereof". The unilateral filing of a stock appraisal was held not to be a hearing on an issue of fact in any such action since there was no court order requiring the appraisal. Spears v. Kerars Realty Company. Inc., supra,
The Supreme Court reversed and found that the plaintiffs properly withdrew their action, without seeking court appraisal. The Supreme Court held that the "the appraisal of the petitioner's shares is ancillary to the winding up action". Id, 702. In dicta, the court held that a court order on the defendant's appraisal application would be a hearing on the merits and thus prevent unilateral withdrawal. The Supreme Court also noted "[u]nder the peculiar facts of the present case, we are not convinced that the plaintiffs' right to withdraw their action was ever terminated." Id., 704
In another corporate windup case, the Superior Court held that the filing of the appraisal report by the defendant shareholders after a court hearing held to order the appraisals, satisfied the "commencement of a hearing" standard. The withdrawal by the plaintiff of the windup petition was valid under C.G.S. §
An evidentiary hearing on a Motion to Dismiss on the issue of in personam jurisdiction is not sufficient to prevent a unilateral withdrawal of action under C.G.S. §
A Prejudgment Remedy hearing pursuant to C.G.S.
The court sustained a demurrer filed by the defendant against the plaintiff's action. The plaintiff failed to plead over. The court held a hearing on November 1, 1963 and a judgment was rendered on the defendant's motion. The plaintiff, on November 2, 1963, filed a withdrawal of action. It was held that the withdrawal was not effective under C.G.S. §
This split of trial court opinions on the issue is noted inHinkston v. Hinkston, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket Number 230458 (June 27, 1980, Barall, J.), 6 C.L.T. 18 (July 21, 1980). The plaintiff husband in Hinkston brought a lawsuit returnable April 17, 1979 in Connecticut for dissolution of marriage. The defendant wife moved for support and alimony pendente lite. On July 13, 1979 the court ordered custody and support pendente lite to the defendant wife. The defendant never cross complained. At some time, thereafter, the plaintiff, without notice to the defendant or permission from the court, withdrew the action In 1980 the defendant cited the plaintiff or contempt for failure to make support payments.
Two issues were raised: 1) Could the plaintiff withdraw the dissolution unilaterally without permission of the court after the issuance of pendente lite orders, and 2) Could the defendant proceed with a contempt citation after such withdrawal for failure to comply with the pendente lite orders? The trial court clearly answered the question that the plaintiff can be held in CT Page 5089 contempt for the unpaid pendente lite orders outstanding at the time of withdrawal despite the fact the court felt that the plaintiff had the unilateral right to withdraw the dissolution action. Judge Barall noted the split of authority in two previous trial court decisions. Judge Pickett in Maietto v. Maietto,
Connecticut Law Tribune, 16, March 24, 1980, held that the plaintiff could not unilaterally withdraw after the entry of pendente lite orders. Judge Inglis in Salonia v. Salonia
The mere filing of a pendente lite motion for counsel fees to defend was not "the commencement of a hearing". Lytwinick v.Lytwinick,
A hearing on a pendente lite motion has been recently held not to be a "hearing on an issue of facts," thereby preventing the plaintiff from withdrawing his dissolution action. Paparellov. Paparello, Superior Court, judicial district of Hartford/New Britain of New Britain, Docket No. 0478476 S (January 6, 1998, Gaffney, J.), 4 Conn. Ops. 134 (February 1, 1998),
In Marsillo v. Marsillo, the defendant on July 6, 1994 petitioned for a decree dissolving the marriage after an earlier January 1994 decree of legal separation. The plaintiff filed a battery of motions and the defendant then withdrew the petition. A court hearing had been held on July 14, 1994 before another judge, which the trial court held was not a hearing on the merits of the petition. The defendant's unilateral withdrawal was held effective. Marsillo v. Marsillo, Superior Court, judicial district of Fairfield at Bridgeport, Docket Nos. 0301875 S and 0316602 S (November 7, 1994, Bassick, J.),
The language of C.G.S. §
In Hawkins v. Hawkins, a July, 1993 dissolution action resulted in a September, 1993 pendente lite alimony orders in favor of the defendant wife. At trial on March 24, 1995, the plaintiff filed a unilateral withdrawl of the dissolution action after the trial court denied the plaintiff's motion for recusal. Immediately thereafter the defendant filed a manuscripted cross-complaint. The trial court held that the withdrawal was ineffective since the September, 1997 hearing entering the pendente lite orders was a hearing on an issue of fact and a hearing on the merits. Hawkins v. Hawkins, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 0306157S (April 12, 1995, Petroni, J.),
The plaintiff could not withdraw the dissolution action without court permission after temporary alimony orders had been previously entered. Kinderman v. Kinderman, Superior Court, judicial district of Stamford/Norwalk, Docket NO. 0085319 (October 9, 1987, Cioffi, J.). CT Page 5091
Is a pendente lite hearing in a marital action a "hearing on an issue of fact" as contemplated by C.G.S. §
Arguments in favor:
CT Page 50921. Pendente lite orders of custody, visitation, alimony, child support and attorney fees are final appealable judgments.
2. The court has no power to retroactively modify such pendente lite orders.
3. Eleven out of the thirteen statutory criteria as to permanent alimony (C.G.S. §
46b-82 ) apply to pendente lite alimony (C.G.S. §46b-83 ): "The causes for the annulment, dissolution of the marriage or legal separation" and "the award, if any, which the court may make pursuant to46b-81 " are not pendente lite alimony criteria.4. The essential nature of custody, visitation, alimony and child support is temporal, and no final judgment can affect these orders for the period of time they are in effect.
5. Pendente lite orders can be continued, if so ordered, in the final decree.
6. The child support guidelines are the same for pendente lite child support and final decree orders of child support.
7. The statutory critena for child support is identical for both pendente lite and final orders.
8. The statutory criteria for custody is identical for both pendente lite and final orders.
9. Eleven of the thirteen statutory criteria as to permanent counsel fees applies to pendente lite counsel fees.
10. The party obligated to pay pendente lite alimony is not entitled to reimbursement even if the issues ultimately are of the pendente lite obligated party.
11. The essential nature of the pendente lite orders is the same as the final decree except for property distribution.
12. More substantial court time is spent resolving pendente lite family matters than pretrial motions in civil cases.
Arguments against:
1. Pendente lite orders terminate at the final decree.
2. Facts found in a pendente lite hearing do not bind the trial court in the final decree.
3. Pendente lite orders do not bind the trial court in the final decree.
4. Two statutory criteria in alimony, cause and the final property award, are not statutory criteria in the consideration of pendente lite alimony.
5. The same two statutory criteria, cause and the final property award, are not statutory criteria in the consideration of pendente lite counsel fees.
6. The term "pendente lite" means pendancy of the suit and, by Black's Law definition, are not the merits of the case.
7. The trial court in a final decree can enter orders of alimony and child support without the need to find a substantial change in the circumstances of either party.
8. Pendente lite and final orders may have no relationship to one another.
The issues raised by this case can easily be resolved by each family defendant, immediately upon service, filing an answer and cross-complaint. The answer may, in fact, just admit the allegations of the complaint and the cross-complaint may contain word for word the allegations of the complaint. The civil rules engrafted onto family cases offer unilateral withdrawal protection. The Lusas rule is an anachronism in this day of"no fault" dissolution as it does not, on its face, provide sufficient protection to family rights secured by pendente lite orders.
Balancing the various factors, this court gives greater weight to the appealability of the order and the necessity for CT Page 5093 maintaining family continuity. This court concludes that those pendente lite orders and the hearings thereon satisfy the requirements of C.G.S. §
The Motion to Dismiss is denied.
The effect of the denial of this Motion to Dismiss is to reestablish on the docket the Motion to Establish Visitation. The Motion to Establish Visitation is ordered to be reclaimed by the defendant husband. Since the plaintiff did not obtain court permission to withdraw after "the commencement of a hearing on the merits", the court orders, sua sponte, the plaintiff's action to be reinstated, effective immediately.
So ordered.
KEVIN TIERNEY, J.
State v. Curcio , 191 Conn. 27 ( 1983 )
State v. Audet , 170 Conn. 337 ( 1976 )
Smith v. Smith , 151 Conn. 292 ( 1964 )
Spears v. Kerars Realty Co. , 171 Conn. 699 ( 1976 )
Yontef v. Yontef , 185 Conn. 275 ( 1981 )
Boothe v. Armstrong , 76 Conn. 530 ( 1904 )
Lytwinick v. Lytwinick , 21 Conn. Super. Ct. 497 ( 1959 )
Salonia v. Salonia , 16 Conn. Supp. 86 ( 1949 )
Hiss v. Hiss , 135 Conn. 333 ( 1949 )
Lusas v. St. Patrick's Roman Catholic Church Corp. , 123 Conn. 166 ( 1937 )