Survey of 1992 Developments in Connecticut Law
| Jurisdiction | Connecticut,United States |
| Publication year | 2021 |
| Citation | Vol. 69 Pg. 109 |
| Pages | 109 |
69 CBJ 109. Survey of 1992 Developments in Connecticut Law
In 1992, the Connecticut Supreme and Appellate Courts reversed many Superior Court dissolution of marriage and modification judgments. While trial court decisions were upheld more often than not, (fn1) reversals occurred on many issues including withdrawal of counsel's appearance, (fn2) duration of alimony, (fn3) assets subject to division, (fn4) child support, attorney's fees, (fn5) modification of child support, (fn6) and construction of a judgment. (fn8) Once again, Connecticut's child support guidelines, which were intended to encourage the amicable resolution of child support disputes, (fn9) generated a disproportionate number of appeals, reversals, and reported trial court decisions. (fn10)
The Supreme Court demonstrated a new interest in family law appeals. It granted certification in five cases, (fn11) the greatest number of such decisions in recent memory.
The Appellate Court was less deferential to trial courts then it had been in 1991 and, instead, reverted to the activism it
demonstrated in the late 1980s.
Both of Connecticut's appellate courts are now actively shaping Connecticut's family law. Their opinions warrant careful attention by Connecticut's matrimonial lawyers.
A. Dissolution of Marriage
1. Jurisdiction
In a controversial decision, Cato v. Cato,(fn12) the Appellate Court construed Sections 52-57a (fn13) and 46b-46(b) (fn14) of the General Statutes to permit in-hand service of a dissolution complaint outside of Connecticut on a nonresident even where no order of notice had been obtained. Paradoxically, the Court concluded that Section 52-57a allows for such service if all the requirements of Section 46b-46(b) have been satisfied. However, one of the requirements of Section 46b-46(b) is actual notice under Section 46b-46(a) (fn15) which provides for an order of notice, which had not been obtained in Cato.
Uncharacteristically, in Cato, judge Geen wrote a scathing dissent." Complaining that "[t]oo little attention is paid to civil procedure," judge Geen concluded that notice, except pursuant to an order of notice, should be ineffective to invoke personal jurisdiction under Section 46b-46. (fn18)
2. Procedure and Evidence
In Cahn v. Cahn, (fn19) the Appellate Court held that it was proper for the trial court to refuse to admit depositions into evidence where a motion for protective order had been filed but had not yet been heard. The Cahn Court also held that a party may file a motion for protective order to prevent the deposition of a non-party despite Practice Book Section 221 which provides for protective orders "[u]pon motion by a party from whom discovery is sought ....
Claims of error grounded in inconsistent trial court statements were unsuccessful in several appeals.(fn20) In Maguire, (fn21) the trial court, in response to an articulation motion, found that stock owned by the husband was worth over $4,000,000. At trial, however, the evidence supported the conclusion that the stock was worth $466,368 or $2,083,628. In response to another request for articulation, the trial court acknowledged that its prior finding was a mistake and corrected it by concluding that the stock was worth $2,083,628. The Supreme Court concluded that the trial court's action was appropriate as it merely corrected an inconsistency between the court's stated intent to divide the parties' assets equally and the court's valuation. (fn22) The Maguire Court indicated that had the trial court's correction been one of substance, it would have been beyond the court's jurisdiction. It concluded, however, that the court's mistake was a "clerical" error which could be corrected at any time.
In Martone(fn23) the Appellate Court refused to find error where the trial court had initially characterized a portion of its award as "damages" but later, in an articulation, indicated the award was alimony. "The characterization which is later in time should control ...." (fn24)
In Clement, (fn25) no error was found where the trial court stated, during trial, that it intended to fashion its orders to provide
for an adult seriously ill child. The Court refused to infer that the trial court's memorandum, which did not mention the child, was consistent with the court's trial comment.
Maguire, Clement, and Martone mean that counsel whose client has received a favorable trial decision need not be overly concerned if the decision appears to be factually incorrect or where the court has made inappropriate comments. (fn26) Instead, counsel should consider asking the trial court to "articulate" and correct any blatant factual errors. So long as the original error was clerical or related to the nature of the court's orders, the correction should withstand appeal.
In Ippolito v. Ippolito, (fn27) the Appellate Court concluded that the completion date of trial was the date on which the reply brief was filed. The trial court had stated that it would grant both sides the opportunity to file reply briefs, upon request and notice to the other side. That the reply brief was filed without request and notice was of no moment. (fn28)
The trial court correctly admitted hospital records, as business records, even though they contained the records of an out-of-state hospital which had been obtained by the Connecticut Department of Mental Retardation." The Court approved the admission into evidence of those documents because they were contained in the business records of the ultimate health provider and were related to the diagnosis or treatment provided by the ultimate health provider. (fn30)
In Clement, (fn31) the Appellate court reaffirmed its position that the trial court may, but need not, consider the federal tax implication of its financial orders.
The Appellate Court, in Greenburg v. Greenburg, noted that a motion for construction does not exist. (fn32) The court treated the
motion as a motion for articulation. (fn33)
In a nonfamily civil case, judge Landau, in a concurring opinion, stated that "there is no procedure that allows a motion to reargue." (fn34) As concurring opinions sometimes portend future rulings, practitioners who continue to employ such a procedure do so at their peril.
3. Withdrawal of Appearance
In Matza v. Matza, (fn35) the Appellate Court held that due process requires that the trial court hold an evidentiary hearing on a motion to withdraw appearance so that the litigant whose counsel is seeking permission to withdraw has the opportunity to contest the factual basis of the motion. The Court also held that where there is a substantial likelihood that the hearing on a motion to withdraw will involve disclosure of communications protected by the attorney-client privilege, the trial court may exclude the adverse party from the hearing. A party's "significant interest in avoiding undue delay ... does not ripen unless and until the motion to withdraw is granted and the issue of a continuance is raised." (fn36)
4. The Causes for the Dissolution of the Marriage.
In Henin v. Henin, (fn37) the Appellate Court revisited the propriety of the trial court's considering a spouse's mental illness as a cause of the dissolution. It declined to find error in the court's finding that the wife's failure to seek medical treatment for her schizophrenia and her consequent behavior caused the breakdown of the marriage (fn38)" The Appellate Court limited Roach (fn39) to preclude such a finding only where it is based upon the demeanor of a party while testifying. (fn40) It construed McPhee (fn41) to permit a finding that an involuntary health problem was the
precipitating cause of the marital breakdown. (fn42)
5. Alimony
a. Time-limited alimony
In three cases, Henin, (fn43) Ippolito, (fn44) and Wolfburg, (fn45) the Appellate Court strained, with mixed results, to define the circumstances in which a trial court may award time-limited alimony.
In Henin, an award of thirteen years of alimony, nonmodifiable as to duration, was upheld despite a twenty-two year marriage. In Wolfburg, an award of seven years of alimony was upheld despite a twenty-three year marriage. In Ippolito, however, an award of ten years of alimony, nonmodifiable as to duration, was set aside where the parties had been married for twenty-two years.
The Appellate Court's decisions in Henin, Wolfburg, and Ippolito appear to turn on whether there was an appropriate reason for the trial court to award time-limited alimony. In Henin, the trial court had also ordered the husband to pay the wife, at the time alimony would terminate, a lump sum of $100,000 plus interest at 7 percent. Thus, there was a "valid purpose for time limited alimony ... to provide interim support until a future event, such as a bond maturation, trust disbursement, or mortgage maturation, takes place. (fn46)
In Henin, it was the payee who complained about the time limitation on the alimony award. In Wolfburg, however, it was the payor who complained that alimony had even been awarded. In Wolfburg, the trial court provided that alimony would terminate at a time coincident with the parties' son's attainment of the age of 18. The Appellate Court held that the award was within the trial court's discretion because "the economic impact on a custodial parent and the caretaking responsibility of such a parent can be reflected in conforming the duration of alimony
payments to the period of the child's minority ... if a record supports a finding that the parties had agreed, during the viable days of the marriage, that one of them should shape the time spent in a...
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