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CHARLES ILL v. ELLEN MANZO-ILL

(AC 37070)

DiPentima, C. J., and Keller and Bishop, Js.

Argued April 14—officially released July 12, 2016

(Appeal from Superior Court, judicial district of

Stamford-Norwalk, Shay, J. [dissolution judgment];

Heller, J. [motion to dismiss].)

James H. Lee, for the appellant (defendant).

Paul T. Tusch, with whom was Danielle J. B.

Edwards, for the appellee (plaintiff).
Opinion

KELLER, J. The defendant, Ellen Manzo-Ill, appeals

from the judgment of the trial court dismissing her

postdissolution motion to modify her alimony award.

On appeal, the defendant claims that the trial court

erred in concluding that (1) Practice Book § 25-34 (e)1

authorized it to dismiss her motion for modification,

and (2) she failed to show good cause for her failure

to reclaim her motion within three months of the date

it was filed and failed to prosecute the motion with

reasonable diligence. We affirm the judgment of the

trial court.

The following facts and procedural history are relevant to this appeal. On August 19, 2008, following a five

day trial, the court, Shay, J., dissolved the marriage of

the plaintiff, Charles Ill, and the defendant. As set forth

in the memorandum of decision rendering the judgment

of dissolution, the court found that the defendant was

fifty-two years old and ‘‘employed throughout the marriage, first by IBM and then by AT&T, up through 1998

when the family moved to Paris, France, after which

[time] she became a full time homemaker and has not

worked outside of the home since. Her sole reported

net income of approximately $1300 per month is derived

from interest and dividends. For much of the marriage,

her annual earnings, well into six figures, matched or

exceeded those of the [plaintiff]. . . . The [plaintiff] is

fifty-four years old . . . . He has a BS in mechanical

engineering, as well as an MBA . . . . He has been

employed throughout the marriage reaching the top

rungs of the corporate ladder.’’ The court further noted

that the plaintiff’s last employment prior to the dissolution was at Avaya as a senior vice president of global

sales. The court found: ‘‘His annual compensation there

was $750,000 including incentive pay. At some point,

the company was acquired by venture capitalists and

went private. He left in May of this year, and he is

currently looking for work.’’

In that portion of the judgment addressing alimony,

the dissolution court ordered each of the parties to pay

nominal alimony of $1 per year to one another until the

death of either party or the remarriage of the other

party, whichever shall sooner occur, and stated: ‘‘It is

the intention of the court that any future alimony order

be based solely upon the earned income from employment, and not upon investment or other passive

income.’’ (Emphasis omitted.) The court also indicated:

‘‘[I]n making its award of nominal periodic alimony

. . . the court . . . finds . . . that each party has a

demonstrable and substantial earning capacity and an

ability to support himself or herself without the financial assistance of the other; that the wife’s medical

condition is treatable with medication and does not

adversely limit her ability to maintain gainful employment in any significant manner; and that the court has
particularly considered the length of the marriage, the

ages of the parties, their education and past employment history, the ages of the children and the diminished caretaker role for each parent, and the award of

property . . . including income-producing assets, as

well as the division of the [plaintiff’s] pension and other

retirement assets of the parties.’’

Neither party was satisfied with the terms of the

dissolution judgment. After the judgment of dissolution

was rendered, on October 3, 2008, in response to the

plaintiff’s motion for reargument and reconsideration,

the court filed a corrected memorandum of decision,

but it did not alter the terms of the alimony order.

Subsequently, on October 23, 2008, the plaintiff filed

an appeal that was withdrawn on June 8, 2010. On

September 19, 2008, the defendant filed a motion to

open the judgment, which the court denied on April

20, 2010. Later, on May 24, 2010, the court denied the

defendant’s motion to reargue her motion to open the

judgment, noting that the motion to open had been

reclaimed more than three months after the date of

its filing in derogation of Practice Book § 25-34 (e).

Although the defendant filed a motion for extension of

time to file an appeal from this denial on June 14, 2010,

she withdrew her motion for extension of time on June

24, 2010 and did not appeal from the court’s denial of

the motion to open.

On April 6, 2010, shortly before the court denied the

defendant’s motion to open the judgment, she filed the

motion for modification of alimony that is the subject

of the present appeal. The defendant sought a modification on the basis of a substantial change in the parties’

circumstances. Specifically, her motion alleged in relevant part as follows: ‘‘Since the date of the [decision

dissolving the parties’ marriage], the circumstances

concerning this case have changed substantially in that

the plaintiff is currently employed and earning an

income, while the defendant is not currently employed,

and that a substantial amount of time has elapsed since

the judgment was entered and that as a result of the

plaintiff’s appeal of the judgment, the defendant has

been denied access to the funds necessary to support

herself.’’ The funds to which the defendant claimed she

had been denied access would have been derived from

the property distribution ordered by the court in the

judgment of dissolution.

After filing her motion for modification, the defendant initiated discovery, which she pursued throughout

2010 by serving the plaintiff with requests for production, to which the plaintiff objected; noticing a deposition of the plaintiff, for which he sought a protective

order because he was unavailable on the date scheduled

for the deposition; and issuing numerous subpoenas to

various entities associated with the plaintiff’s earnings

and investments, all of which the plaintiff moved to
quash.2

On December 20, 2010, the court, Wenzel, J., overruled all of the plaintiff’s objections to the defendant’s

requests for production. As a result, the plaintiff’s

motions to quash were marked off as moot by the court

on that same date. Six months later, on July 20, 2011,

the defendant filed a motion for contempt claiming

that the plaintiff had failed to comply fully with her

discovery requests. The July 20, 2011 motion for contempt was marked off on August 1, 2011. On October 26,

2011, the plaintiff filed a motion for order of compliance

with discovery pursuant to Practice Book § 13-14. No

action has ever been taken on that motion.

On February 22, 2012, almost two years after the

defendant had filed her motion for modification, the

plaintiff moved to dismiss it on the grounds that the

defendant had not prosecuted her motion with reasonable diligence and had failed to reclaim it within three

months from its filing date pursuant to Practice Book

§ 25-34 (e). The plaintiff claimed that, in an attempt to

circumvent the prohibition against reclaiming a motion

after a period of three months from its filing date, the

defendant had contacted the family caseflow coordinator unilaterally and had requested that her motion for

modification be placed on the calendar. Further, the

plaintiff argued that he had provided his last supplemental document production in response to the defendant’s

discovery requests in August, 2011, that the defendant

had taken no action in court on her motion since that

date, and that she also had failed to comply with his

requests for production.

The defendant responded by filing another motion

for contempt against the plaintiff on February 24, 2012,

in which she claimed that the plaintiff still had failed

to comply with discovery. The motion for contempt

was marked off on March 19, 2012. The defendant renoticed the deposition of the plaintiff for April 3, 2012,

but it did not take place. On April 16, 2012, the defendant

filed an objection to the plaintiff’s motion to dismiss,

arguing that an exception to Practice Book § 25-34 (e)

existed because her motion for modification twice had

been scheduled for a hearing on a date certain.3

On May 21, 2012, the court, Schofield, J., sustained

the defendant’s objection to the plaintiff’s motion to

dismiss the defendant’s motion for modification.4 Subsequent to Judge Schofield’s ruling, the defendant

renewed and expanded her discovery efforts. Between

April 18, 2012, and November 14, 2012, she filed motions

for commissions to take out-of-state depositions of various business entities connected to the plaintiff, but

none of the depositions occurred either because the

defendant did not pursue them as scheduled or the

defendant failed to respond to and seek resolution of

motions to quash and for protective orders sought by

the plaintiff.5 For nearly a year, between November 14,
2012, and November 21, 2013, the defendant did not

make further filings. On November 21, 2013, without

filing a motion for a commission, she issued a subpoena

to IBM for a deposition, which the plaintiff moved to

quash. The plaintiff also sought a protective order.

Despite initiating efforts to take numerous depositions

throughout the pendency of her motion to modify, the

defendant admits she never took a single deposition.

At no time after Judge Wenzel’s decision overruling

the plaintiff’s objection to the defendant’s requests for

production on May 20, 2010, did the defendant obtain

a ruling by the court that moved forward the discovery

impasse she alleged to exist or that found that the

plaintiff was noncompliant with the rules of discovery.

On December 26, 2013, the plaintiff filed a second

motion to dismiss the defendant’s motion for modification, which is the subject of this appeal. The plaintiff’s

motion to dismiss sought dismissal pursuant to Practice

Book §§ 14-3,6 25-34 (e), and 25-48. In his motion, the

plaintiff alleged that the defendant’s delay in pursuing

her motion for modification had not been reasonable

and that to permit the defendant to continue to intermittently resurrect and then abandon her discovery efforts,

or to pursue her motion after ignoring it for a significant

period of time, worked a prejudice on the plaintiff by

virtue of: (a) his being subjected to a new round of

discovery after previously providing extensive documentation several years earlier; (b) his having to incur

legal fees to defend himself against a motion and discovery attempts previously abandoned by the defendant;

and (c) his having to stand ready for trial for several

years while the defendant continued to decide whether

to proceed with her motion. The defendant responded

by issuing another subpoena, dated January 3, 2014, to

the Dowling Group, the plaintiff’s accounting firm, to

which the plaintiffresponded by filing a motion to quash

and a motion for a protective order.

The defendant filed an objection to the plaintiff’s

motion to dismiss on February 19, 2014. In her objection, she claimed that she had obtained documents pursuant to subpoenas from multiple entities but still

needed time to serve additional subpoenas upon several

other entities, and that she had not obtained the plaintiff’s tax records.7 She also complained that, with

respect to her discovery efforts, the plaintiff had

engaged in obstructionist behavior. The court heard

oral argument on the motion to dismiss on February 24,

2014. On May 14, 2014, the court granted the plaintiff’s

motion to dismiss.

In its memorandum of decision, the court set forth the

protracted procedural history leading to the plaintiff’s

motion to dismiss the defendant’s motion for modification of alimony. In its analysis, the court stated in relevant part: ‘‘Upon a review of the court file, it appears

that much of the defendant’s third party discovery was
initiated well before February, 2013. While the defendant’s counsel may have had follow-up discussions in

2013 to secure compliance with the subpoenas that

were served, and likely spent time in 2013 reviewing

the material that was produced, these activities do not

show sufficient good cause to excuse the delay in prosecuting the defendant’s motion . . . . There is also

nothing in the court file to indicate that the plaintiff

was engaging in ‘obstructionism and bad faith delay

tactics’ during this time that would excuse the defendant’s delay in prosecuting her motion. Between May

24, 2012, and February 6, 2014, the defendant filed only

two motions, both of which were for commissions to

take out-of-state depositions . . . and the parties were

before the court just three times, again, in connection

with motions for commissions . . . . The defendant

has failed to show good cause for her delay in prosecuting a four year old motion for modification . . . .

Under Practice Book § 25-34 (e), the defendant’s motion

for modification is stale, it has not been diligently prosecuted, and it will not be considered by the court.’’ The

court granted the plaintiff’s motion to dismiss.

Thereafter, the court denied the defendant’s motion

for reargument and reconsideration. This appeal

followed.

I

We first address the defendant’s claim that the court

erroneously concluded that Practice Book § 25-34 (e)

authorized it to dismiss her motion for modification of

alimony. Because the propriety of the court’s imposition

of the sanction of dismissal necessarily depends on the

propriety of its legal construction of the rule, ourreview

is plenary. See Wexler v. DeMaio, 280 Conn. 168, 181–82,

905 A.2d 1196 (2006). ‘‘[T]he interpretive construction

of the rules of practice is to be governed by the same

principles as those regulating statutory interpretation.’’

(Internal quotation marks omitted.) In re Shanaira C.,

297 Conn. 737, 758, 1 A.3d 5 (2010). ‘‘When construing

a statute, [o]ur fundamental objective is to ascertain

and give effect to the apparent intent of the legislature.

. . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language

as applied to the facts of [the] case, including the question of whether the language actually does apply. . . .

In seeking to determine that meaning, General Statutes

§ 1-2z directs us first to consider the text of the statute

itself and its relationship to other statutes. If, after

examining such text and considering such relationship,

the meaning of such text is plain and unambiguous and

does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not

be considered. . . . When a statute is not plain and

unambiguous, we also look for interpretive guidance

to the legislative history and circumstances surrounding

its enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation

and common law principles governing the same general

subject matter . . . .’’ (Internal quotation marks omitted.) Id., 757–58.

We begin with an examination of the language of

Practice Book § 25-34 (e), which provides in relevant

part: ‘‘Unless for good cause shown, no motion may be

reclaimed after a period of three months from the date

of filing.’’ The rule neither expressly provides for the

sanction of dismissal nor expressly forbids the imposition of such sanction. The rule, however, plainly authorizes a sanction in that, absent a showing of good cause,

‘‘no motion may be reclaimed’’ after three months of

its filing. Practice Book § 25-34 (e). Reclaiming a motion

is the only way to have it presented to the court for a

hearing, for in the absence of a party’s reclaiming the

motion, it would not be placed on the calendar. Thus,

the unmistakable effect of precluding a party from

reclaiming a motion is to preclude a party from

obtaining a hearing on such motion. The consequence

of failing to secure a hearing on a motion is tantamount

to losing the right to have it considered at all. Insofar

as there is no practical difference between precluding

a party from obtaining a hearing on a motion and a

dismissal of such motion, we are not persuaded that

the rule does not permit a court to clear its docket by

dismissing a motion that, by operation of the rule, it is

unable to entertain.

Furthermore, it is a logical consequence of the operation of Practice Book § 25-34 (e) for a court to grant a

motion to dismiss a motion to which the rule applies

because a motion that is not reclaimed or withdrawn

might remain pending indefinitely if never acted upon.8

The defendant argues that, procedurally, § 25-34 (e) is

best addressed as a part of a final hearing on the merits,

as opposed to being used to dismiss or deny a motion

before any such hearing commences. This position

defies common sense, and would eviscerate the provisions of § 25-34 (e). It would require the court unnecessarily to conduct a full hearing on the motion in order

to determine whether to dismiss it or render a decision

on its merits.

If a court, for docket management purposes, chooses

to confer absolute finality to the issue of whether a

party has lost the right to have the motion considered

by ordering its dismissal, such an action does not, for

all practical purposes, alter the intended consequence

of the rule. A dismissal appropriately lays any issue as

to the motion’s viability, finally, to rest.9 Otherwise, the

result is an unworkable situation in which a court could

be faced with repeated attempts by the movant to

reclaim the motion, subject to repeated objections from

the nonmovant that the rule prohibits the court from

considering it. This situation would place the nonmovant in the untenable position of having to be perpetually
poised to defend the stale motion.

To the extent that there is any ambiguity as to

whether Practice Book § 25-34 (e) authorizes a dismissal, we are guided by the relationship of that rule

to other rules of practice and common-law principles

governing the efficient disposition of litigation. We note

that the court, faced with a case that had been languishing on its docket for years, also had other, similar,

means to control the pace of litigation before it.

In the present case, the plaintiff based his motion to

dismiss not only on Practice Book § 25-34 (e), but on

the failure ‘‘to prosecute an action with reasonable diligence’’ ground of Practice Book § 14-3.10 Although the

defendant urges us to conclude that the court dismissed

the motion solely on the basis of its reliance on § 25-

34 (e), the court’s memorandum of decision reflects

that it relied on § 14-3, which is incorporated into the

Practice Book chapter governing family matters by

Practice Book § 25-48, as well. In addition to finding

that the defendant failed to establish good cause for

the delay in the pursuit of her motion to modify under

§ 25-34 (e), the court also found that the motion ‘‘has

not been diligently prosecuted,’’ thereby making a finding that was unmistakably related to the plaintiff’s reliance on § 14-3.11 Section 14-3, when applicable,

specifically authorizes the court to ‘‘render a judgment

dismissing the action . . . .’’ The omission of a specific

citation to § 14-3 in the court’s decision does not diminish or invalidate the court’s specific finding, which is

required under that rule, that the defendant had failed

to diligently prosecute her motion. Such an interpretation of the court’s opinion would elevate form over

substance. It is clear that the court relied on the precepts of § 14-3, even though it did not expressly cite

that rule.

With respect to the court’s authority under Practice

Book § 14-3, we observe that the plaintiff’s second

motion to dismiss was filed on December 26, 2013 and

was argued on February 24, 2014. Thus, the two week

notice requirement of § 14-3 was satisfied in the present

case. The parties do not dispute that the defendant’s

motion for modification of alimony, postjudgment, is

an ‘‘action.’’ The definition of an ‘‘action’’ was discussed

in In re Investigation of the Grand Juror, 188 Conn.

601, 452 A.2d 935 (1982). ‘‘In a general sense, the word

action means the lawful demand of one’s right in a court

of justice; and in this sense it may be said to include

any proceeding in such a court for the purpose of

obtaining such redress as the law provides. . . . It

includes not only the usual civil action instituted by

process but also proceedings initiated by petition . . .

stipulation . . . or motion.’’ (Citations omitted; internal quotation marks omitted.) Id., 606.

Finally, we note that ‘‘[t]he power of a court to manage its dockets and cases by the imposition of sanctions
to prevent undue delays in the disposition of pending

cases is of ancient origin, having its roots in judgments

. . . entered at common law . . . and dismissals

. . . . That power may be expressly recognized by rule

or statute, but it exists independently of either and

arises because of the control that must necessarily be

vested in courts in order for them to be able to manage

their own affairs so as to achieve an orderly and expeditious disposition of cases. . . . Simply stated, [t]he

inherent powers of . . . courts are those which are

necessary to the exercise of all others.’’ (Internal quotation marks omitted.) Feuerman v. Feuerman, 39 Conn.

App. 775, 777, 667 A.2d 802 (1995). Regardless of the

authority contained in the Practice Book provisions,

the court had the inherent authority to sanction a party

who had failed to pursue a motion with reasonable diligence.

In light of the foregoing authority, we conclude that

the defendant’s claim that the court lacked the authority

to dismiss her motion for modification is without merit.

II

As we perceive it,12 the defendant’s second claim is

that the court erred in concluding that she (1) failed to

show good cause for her failure to reclaim her motion

within three months of the date on which it was filed

and (2) failed to diligently prosecute it. This discussion

requires a two part analysis, because the standard for

reviewing a trial court’s decision on whether a motion

is stale under Practice Book § 25-34 (e) is the clearly

erroneous standard; see Larson v. Larson, 89 Conn.

App. 57, 69, 872 A.2d 912, cert. denied, 274 Conn. 915,

879 A.2d 892 (2015); and the standard for reviewing

whether a trial court’s dismissal of an action under

Practice Book § 14-3 is whether the trial court abused

its discretion. See Krevis v. Bridgeport, 262 Conn. 813,

818–19, 817 A.2d 628 (2003).

A

In Larson v. Larson, supra, 89 Conn. App. 69, this

court indicated, as follows: ‘‘Whether a party has shown

good cause in not pursuing a motion within the three

month limitation is a question of fact for the trial court.

[W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out

in the memorandum of decision are supported by the

evidence or whether, in light of the evidence and the

pleadings in the whole record, those facts are clearly

erroneous. . . . When employing this standard of

review, this court cannot retry the facts . . . .’’ (Citation omitted; internal quotation marks omitted.)‘‘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.’’
(Internal quotation marks omitted.) ATC Partnership

v. Windham, 268 Conn. 463, 479, 845 A.2d 389 (2004).

The defendant argues that, in considering whether

she acted with good cause, the court should have offset

the duration of the defendant’s delay by the interval

when an appellate stay incident to the plaintiff’s appeal

was in effect, and those intervals when each of his two

motions to dismiss were pending. As to the discovery

delays, the defendant argues that she should not be

faulted for hesitating to proceed to a hearing on her

motion without access to full and complete discovery.

Finally, she argues that, at the February 24, 2014 hearing, she advised the court she was ready to proceed to

a hearing on her motion at anytime.

In response to the arguments raised by the defendant,

the plaintiff argues that the court noted lengthy periods

of inaction by the defendant and set forth a chronology

of that inactivity. The court also noted that the defendant had failed to pursue her 2011 motion for contempt

regarding discovery, and had noticed numerous depositions, none of which occurred. More importantly, there

was no record of any activity in the case for the period

from November, 2012, until November, 2013. We agree

with the plaintiff that the court’s finding as to lack of

good cause was not clearly erroneous in light of the

defendant’s inactivity for extended time periods and her

repeated lack of follow-through in a series of noticed

depositions. The plaintiff’s appeal was withdrawn in

2010, only a few months after the defendant’s motion

for modification was filed, so how it would have

affected her ability to proceed efficiently for the next

three and one-half years is not evident. The court also

rejected the defendant’s claim that the plaintiff had

engaged in bad faith delay tactics by raising appropriate

and timely objections to her discovery requests, and

our review of the grounds set forth in the plaintiff’s

motions to quash and for protective orders support,

rather than undermine, the court’s findings that the

plaintiff’s objections were not merely frivolous.

In addition, the defendant admitted that the plaintiff

had provided documentation in response to her discovery requests, but focused on the need for signed tax

returns orrelease authorizations to obtain the plaintiff’s

tax returns herself. We do not consider the inability to

obtain tax returns a valid excuse for such an inordinate

delay when the defendant’s primary stated ground for

a modification was the plaintiff’s increased earnings.

Tax returns are a prime source for information as to

earnings, yet once the court had overruled the plaintiff’s

objections to herrequests for production, the defendant

failed to pursue a motion to compel the production of

the tax returns or releases, failed to follow through with

depositions, noticed in 2010 and 2012, of either the

plaintiff or his accountant,13 and failed to seek a scheduling order.
Most significantly, the plaintiff filed his first motion

to dismiss in 2012, which Judge Schofield denied. This

afforded the defendant a reprieve, giving her additional

time to pursue the motion to modify the alimony award.

Judge Schofield ordered her to obtain a hearing date

and cease using lack of discovery as an excuse. At that

hearing, or immediately thereafter, she did not press

for any findings thatthe plaintiff had been noncompliant

with discovery or any orders directed to the plaintiff to

produce any specified documents prior to the hearing,

which the court indicated was to be scheduled expeditiously. It is unrefuted in the record that the defendant

did not follow the court’s direction to obtain a hearing

date. Not only was no hearing ever scheduled, but the

defendant persisted in ineffectually pursuing more discovery without much involvement from the court until

the plaintiff’s second motion to dismiss was heard in

February, 2014. Although the defendant claims she told

the court during that hearing that she was ready to

proceed, that was not the case. She in fact complained,

in her written objection and at the hearing, of an inability to proceed due to the lack of sufficient disclosure

of the plaintiff’s tax returns. She also indicated that

she wanted to take the plaintiff’s deposition and get

responses to subpoenas that were outstanding.

We conclude that the factual findings of the court

support its conclusion that the defendant failed to show

good cause to avoid a dismissal under Practice Book

§ 25-34 (e).

B

As we have determined previously in this opinion,

the court’s dismissal of the defendant’s motion was

based, in part, on its determination that she had failed

to prosecute it with reasonable diligence under Practice

Book § 14-3. ‘‘We review case management decisions

for abuse of discretion, giving [trial] courts wide latitude. . . . A party adversely affected by a [trial] court’s

case management decision thus bears a formidable burden in seeking reversal. . . . A trial court has the

authority to manage cases before it as is necessary.

. . . Deference is afforded to the trial court in making

case management decisions because it is in a much

better position to determine the effect that a particular

procedure will have on both parties. . . . The case

management authority is an inherent power necessarily

vested in trial courts to manage their own affairs in

order to achieve the expeditious disposition of cases.

. . . The ability of trial judges to manage cases is essential to judicial economy and justice. . . . We will not

disturb a trial court’s decision regarding case management unless after carefully examining the factual circumstances of the case, we determine that there was

an abuse of discretion.’’(Citations omitted; internal quotation marks omitted.) Krevis v. Bridgeport, supra, 262

Conn. 818–19.
Although courts must be mindful of the policy

favoring a trial on the merits of any dispute whenever

possible, a court may still determine, in its sound discretion, that a party’s diligence does not fall ‘‘within the

reasonable section of the diligence spectrum. . . . A

trial court properly exercises its discretion to dismiss

for failure to prosecute if the case has been on the

docket for an unduly protracted period or the court is

satisfied from the record or otherwise that there is no

real intent to prosecute . . . .’’ (Internal quotation

marks omitted.) Brochu v. Aesys Technologies, 159

Conn. App. 584, 594, 123 A.3d 1236 (2015). ‘‘[T]he

unquestioned rule is that great weight is due to the

action of the trial court and every reasonable presumption should be given in favor of its correctness.’’ (Internal quotation marks omitted.) Bobbin v. Sail the

Sounds, LLC, 153 Conn. App. 716, 727, 107 A.3d 414

(2014), cert. denied, 315 Conn. 918, 107 A.3d 961 (2015).

In part II A of this opinion, we set forth facts that

support the court’s finding of a lack of good cause.

We conclude that those facts also support the court’s

finding that the defendant failed to prosecute her

motion with reasonable diligence. The defendant’s

motion had been filed almost four years prior to the

hearing on the motion to dismiss. The court reasonably

construed four years to be an unduly protracted period

for the pendency of a motion to modify alimony. The

defendant’s inaction for extended periods and her failure to take unequivocal, productive steps to obtain the

discovery necessary and germane to the substantial

change she alleged in her motion—an increase in the

plaintiff’s income—established that there was insufficient good cause for her delay in prosecuting her

motion. A motion to increase an alimony order ostensibly should have as a primary purpose a serious need

for immediate, increased financial support. Even when

the defendant was reminded, at the time Judge Schofield denied the plaintiff’s first motion of dismiss, of

her urgent duty to ensure the forward progress of her

motion to modify, the defendant did not accelerate or

streamline her scattered and imprecise discovery

efforts. She ignored the court’s direction to obtain a

hearing date and never sought a scheduling order, either

of which would have provided her with protection from

dismissal under Practice Book § 25-34 (e). We find no

abuse of discretion in the court’s decision to dismiss

the defendant’s motion for modification.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Practice Book § 25-34 (e) states in relevant part: ‘‘Unless for good cause

shown, no motion may be reclaimed after a period of three months from

the date of filing. This subsection shall not apply to those motions where

counsel appeared on the date set by the judicial authority and entered into

a scheduling order for discovery, depositions and a date certain for hearing.’’

2 The plaintiff’s motions to quash that were filed in 2010 alleged that the

defendant was seeking to subpoena the same documents to which the
plaintiff had objected to producing in response to her requests for production, and that his objection had yet to be resolved.

3 The hearing dates, May 30 and May 31, 2012, were eventually cancelled

by the court.

4 The record reflects that Judge Schofield ordered the parties ‘‘to proceed

immediately downstairs and get a date’’ to have the motion heard on the

merits. She advised the parties: ‘‘I do not want to hear any excuses from

either side that you are not prepared to go forward on this date. I do not

want to hear that there’s outstanding discovery at all.’’ At that hearing, the

defendant maintained that the plaintiff had not fully complied with discovery,

but she did not request any specific compliance orders from the court on

that date. Although she requested a scheduling order for discovery at that

time, one was never issued, and given the tenor of the court’s order, that

it did not want ‘‘to hear that there’s outstanding discovery at all,’’ it appears

the court perhaps would not have countenanced further delay had a hearing

actually been scheduled. Notwithstanding the court’s specific directive, a

new hearing date was not obtained, a fact which the defendant admitted

in her motion to reargue before Judge Heller.

5

In eight motions to quash filed between August 9, 2012, and December

26, 2013, the plaintiff claimed that the defendant either was failing to attach

a Schedule A denoting what documents were being requested pursuant to

her deposition subpoenas, or she was trying to take out-of-state depositions

without first seeking the appointment of a commission from the court. In

fact, the defendant admitted to serving subpoenas for documents on outof-state entities prior to the proposed date of the depositions, obtaining the

documents, which the plaintiff claimed were never shared with him, and

then cancelling the actual depositions, a procedure the plaintiff claimed

was in violation of General Statutes §§ 52-148a and 52-148c, and Practice

Book § 13-28. In one instance, the plaintiff claimed that the defendant was

seeking to depose an entity with which he had never been associated.

6 Practice Book § 14-3, made applicable to family matters by Practice

Book § 25-48, states in pertinent part: ‘‘(a) If a party shall fail to prosecute

an action with reasonable diligence, the judicial authority may, after hearing,

on motion by any party to the action . . . or on its own motion, render a

judgment dismissing the action with costs. At least two weeks’ notice shall

be required except in cases appearing on an assignment list forfinal adjudication. Judgment files shall not be drawn except where an appeal is taken or

where any party so requests.’’

7 At the hearing on the motion to dismiss, the plaintiff argued that because

the dissolution judgment limited an alimony increase to an increase in a

party’s wages, it was difficult to discern why the defendant’s discovery

efforts were related to information concerning the plaintiff’s assets, as well

as information concerning employment income and tax returns that predated

the judgment of dissolution. The defendant countered that some of her

discovery was in regard to a motion for compliance with property distribution orders contained in the dissolution judgment. The court correctly noted

that there was no motion pending before it concerning compliance pertaining

to property distribution. On appeal, the defendant has not raised any claim

with respect to this issue and has not identified the motion for compliance

to which she had referred during the hearing before Judge Heller.

8 As previously noted, the defendant may have sought to avoid the rule’s

effect at one point by unilaterally requesting that the caseflow coordinator

schedule her motion for a hearing rather than filing a notice of reclaim.

9

In accordance with Practice Book § 25-34 (e), trial courts have imposed

a variety of sanctions in response to a party’s failure to reclaim a motion

within three months after it has been filed. The plaintiff draws our attention

to a number of decisions in which trial courts have dismissed motions that

were determined to be stale. See, e.g., Montgomery v. Shipman, Superior

Court, judicial district of Tolland, Docket No. FA-98-0067662-S (September

5, 2008) (appeal from family support magistrate dismissed when not

reclaimed for over one year after filing without good cause shown for delay

in pursuing appeal); Miller v. Miller, Superior Court, judicial district of

Hartford, Docket No. FA-87-0327052 (April 2, 2002) (motion to modify alimony dismissed after court concludes that Practice Book § 25-34 [c] does

not permit party to reclaim motion after period of three months and no

good cause shown); Hill v. Hill, Superior Court, judicial district of Fairfield,

Docket No. FA-91-0374254-S, (January 8, 2001), (vast majority of motions

filed by plaintiff dismissed as stale and in violation of § 25-34 [e] when

plaintiff’s noncompliance with case management order established lack of

good cause shown), aff’d, 75 Conn. App. 902, 818 A.2d 901, cert. denied,
264 Conn. 911, 826 A.2d 1155 (2003); Lang v. Rufleth, Superior Court, judicial

district of Hartford, Docket No. FA-95-0710971 (July 26, 2000) (unreclaimed

motions filed two years earlier,requesting division of marital property pursuant to agreement to permit court to reserve jurisdiction six months after

dissolution for such division, dismissed absent showing of good cause).

The plaintiff has drawn our attention to the decisions of other trial courts

that have denied the motions that were determined to be stale. See, e.g.,

Nuzzi v. Nuzzi, Superior Court, judicial district of Stamford-Norwalk,

Docket No. FA-06-4008282 (January 2, 2014), (nearly five year old motion

to modify alimony denied under Practice Book § 25-34 [e] when no good

cause shown for delay), rev’d on other grounds, 164 Conn. App. 751,

A.3d (2016); Vallas v. Vallas, Superior Court, judicial district of StamfordNorwalk, Docket No. FA-90-0112609-S (May 20, 1998) (family support magistrate’s denial of motion not reclaimed for period of four years without good

cause affirmed). As the plaintiff points out, several trial courts have declined

to act on stale pendente lite motions,thereby denying retroactivity to support

orders entered at the time of dissolution of the marriage. See, e.g., O’Donnell

v. Johnson, Superior Court, judicial district of New London, Docket No.

FA-12-4119469 (April 6, 2015) (claim for retroactive support order at time

of final custody determination denied because court determined that, under

§ 25-34 [e], motion for pendente lite child support that was not reclaimed

after three months under rule cannot be treated as still pending by operation

of law); Sudol v. Sudol, Superior Court, judicial district of Stamford-Norwalk,

Docket No. FA-12-4023333-S, (September 8, 2014) (in absence of evidence

that child’s needs unmet or that plaintiff had suffered financial detriment,

court, pursuant to § 25-34 [e], declined to enter retroactive child support

order pursuant to plaintiff’s pendente lite motion filed two years before date

of dissolution but never reclaimed). Also, the plaintiff draws our attention to

the decision of one trial court that, afterfinding good cause shown, overruled

an objection to the docketing of a pendent lite motion reclaimed more than

three months after its date of filing. See Mendoza v. Scott, Superior Court,

judicial district of New London, Docket No. FA-06-4006691-S (July 11, 2007).

We suggest that a dismissal is a more appropriate sanction than a denial

or the sustaining of an objection to redocketing the motion because a

dismissal reflects a determination, made in accordance with Practice Book

§ 25-34 (e), that the motion procedurally cannot proceed further. In addition,

a dismissal is a more common sanction when a party has failed to prosecute

an action diligently. A denial could be construed as a decision on the merits

of the motion, and we recognize that when a motion is dismissed as stale,

the movant may file and serve the opposing party with a new motion,

possibly alleging grounds similar to the grounds previously alleged in the

dismissed motion. The movant, however, in the case of a motion seeking

to modify alimony, will have lost the benefit of requesting retroactivity of

any modified order beyond the filing date of the new motion. See General

Statutes § 46b-86 (a), which states in pertinent part: ‘‘No order for periodic

payment of permanent alimony . . . may be subject to retroactive modification, except that the court may order modification with respect to any period

during which there is a pending motion for modification of an alimony . . .

order from the date of service of notice of such pending motion upon the

opposing party pursuant to section 52-50. . . .’’

10 See footnote 6 of this opinion.

11 We observe that, before this court, the plaintiff has raised the court’s

reliance on Practice Book § 14-3 as an alternate ground upon which this

court may affirm the judgment of the trial court pursuant to Practice Book

§ 63-4.

12 Although the defendant has phrased the present claim in very general

terms, by asserting that ‘‘[t]he trial court improperly dismissed [her] motion,’’

our review of the substance of her analysis of the claim reveals the issues

related to the claim that we will address.

13 Only after the plaintiff filed his second motion to dismiss did the defendant renew her attempts to depose the defendant’s accountant and move

to compel the production of the plaintiff’s tax returns or release authorizations for them. Due to the pendency of his motion to dismiss, the plaintiff objected.