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*********************************************** 
BARBARA A. FLEISCHER v.

WILLIAM B. FLEISCHER

(AC 40987)

Prescott, Bright and Eveleigh, Js.

Syllabus

The defendant, whose marriage to the plaintiff previously had been dissolved, appealed to this court from the judgment of the trial court

dismissing his motions to modify alimony and for contempt. Although

the motions were scheduled to be argued in June, 2015, no activity on

the motions occurred until December, 2016, when the court scheduled

a status conference, after which a full hearing was scheduled for the

motions in April, 2017, when the plaintiff argued that the motions should

be dismissed due to the defendant’s failure to prosecute the motions

with reasonable diligence. Subsequently, the plaintiff filed a motion to

dismiss, which the trial court granted for the defendant’s failure to

prosecute the motions with reasonable diligence. Held that the trial

court improperly dismissed the defendant’s motions for modification of

alimony and for contempt: even though a trial court has wide discretion

in determining whether to dismiss an action for failure to prosecute it

with due diligence, there are limits to that discretion, and the sanction

imposed must be proportional to the violation or misconduct, which

did not occur here, as the sanction of dismissal was imposed for a

onetime, one and one-half year delay that occurred after the defendant’s

counsel had been diagnosed with a serious illness, there was no evidence

showing that during that period of delay, the defendant was ever ordered

to prosecute the motions more expeditiously, the first time that the

defendant was confronted with potential dismissal was at the hearing

on the merits of the motion to dismiss, the court made no findings in

its memorandum of decision that it considered and found inadequate

lesser sanctions before dismissing the motions for failure to prosecute

them with due diligence, and the delay in prosecuting the motions was

due to the illness of the defendant’s attorney, which tended not to justify

the severe sanction of dismissal; moreover, the defendant provided a

compelling reason for the delay, both parties were fully prepared to

move forward with a trial on the merits of the defendant’s motions, and

the defendant never received, let alone ignored, orders from the court

regarding the motions, and the court’s decision to dismiss the defendant’s motions created an appearance that it was a punishment for the

defendant’s refusal to waive a claim that any reduction in alimony should

be retroactive to the date that the motion for modification of alimony

was filed.

Argued April 8—officially released September 10, 2019

Procedural History

Action for the dissolution of a marriage and for other

relief, brought to the Superior Court in the judicial district of Danbury, where the court, Ford. J., rendered

judgment dissolving the marriage and granting certain

other relief; thereafter, the court, Axelrod, J., dismissed

the defendant’s motions for modification of alimony

and for contempt, and the defendant appealed to this

court. Reversed; further proceedings.

Logan A. Carducci, with whom was Daniel J. Krisch,

for the appellant (defendant).

Christopher P. Norris, for the appellee (plaintiff).
Opinion

PRESCOTT, J. The defendant, William B. Fleischer,

appeals from the judgment of the trial court dismissing,

pursuant to Practice Book § 14-3, his motions for modification of alimony and for contempt on the ground that

he had failed to prosecute the motions with reasonable

diligence.1 On appeal, the defendant claims that the trial

court improperly dismissed his motions because there

was no clear pattern of delay and the evidence showed

his intent to prosecute the motions. We agree that the

motions should not have been dismissed and, accordingly, reverse the judgment of the trial court.

The record reveals the following undisputed facts

and procedural history. The plaintiff and the defendant

married on June 28, 1958. The parties’ marriage was

dissolved in a judgment dated May 31, 1984. The judgment incorporated the parties’ separation agreement

and provided, inter alia, that the defendant pay alimony

to the plaintiff until her remarriage or death.2

On December 10, 2012, the defendant filed a motion

for modification of alimony and a motion for contempt.

In his motion for modification of alimony, the defendant

argued that the plaintiff was earning substantially more

income than she had been at the time of the dissolution

judgment twenty-eight years prior, and, by contrast, the

defendant was now earning substantially less. In his

motion for contempt, the defendant argued that the

plaintiff had not provided him with her W-2 forms, as

required by section 3.2 of the separation agreement.3

See footnote 2 of this opinion.

On November 4, 2014, the defendant moved in limine

to preclude the plaintiff from having admitted certain

evidence pertaining to his motions.4 On December 3,

2014, the defendant served the plaintiff with a request

for admissions. On December 19, 2014, a status conference was held on the parties’ outstanding motions.

On February 25, 2015, the defendant’s counsel, Attorney Allen G. Palmer, was diagnosed with Parkinson’s

disease. Attorney Palmer’s diagnosis was disclosed in

an affidavit attached to the defendant’s opposition to

the plaintiff’s motion to dismiss; see footnote 12 of

this opinion; and the plaintiff ‘‘does not challenge the

medical diagnosis of [Attorney Palmer]’’ on appeal.

The parties subsequently entered into a stipulation,

dated June 1, 2015, regarding the defendant’s motion

in limine and amended appendix to the motion in limine.

The stipulation stated that the plaintiff was to file any

objection by June 8, 2015, and counsel were to return

to court on June 22, 2015, to argue the motions and

objections. The plaintiff does not appear ever to have

filed an objection to the motion in limine. In any event,

no activity on the defendant’s motion for modification

of alimony and motion for contempt occurred between

June, 2015, and December, 2016.
In December, 2016, the court scheduled a status conference on the motions for January 19, 2017. At the

January 19 status conference, the court scheduled the

matter for a full hearing on April 20, 2017.

At the April 20, 2017 hearing, both parties informed

the court that they were prepared to move forward

with a trial on the defendant’s motions. The plaintiff,

however, argued that both of the defendant’s motions

should be dismissed pursuant to Practice Book §§ 25-

34 (f)5 and 14-3 because they were not heard within

three months of their filing date and the defendant

had failed to prosecute the motions with reasonable

diligence. The plaintiff also requested that, if a hearing

on the motions were to proceed, the defendant waive

his request to have the modification of alimony apply

retroactively back to December 10, 2012, the date on

which the motion was filed. The defendant’s counsel

responded that the defendant had been dutifully prosecuting the case, but there were several delays due to

issues regarding scheduling and discovery. Additionally, he stated that his medical condition accounted for

a portion of the delay.

After the defendant’s argument, the court asked if

the defendant was willing to waive any claim that

modification of alimony be retroactive. The defendant

responded no. After the defendant declined to waive

retroactivity, the court summarily dismissed both of the

defendant’s motions pursuant to Practice Book § 25-34

(f). The plaintiff’s counsel asked the court to delay the

dismissal for a five minute recess to allow the defendant’s counsel to discuss with the defendant waiving

retroactivity so that the motions could go forward that

day. Despite the assertion of the defendant’s counsel

that he did not need to discuss waiving retroactivity

with his client, the court took a recess, again stating

that if retroactivity were not waived, it would dismiss

the motions.

Following a short recess, the defendant stated again

that he would not waive retroactivity. The defendant

also asserted that dismissal was improper because the

plaintiff had not filed a written motion to dismiss,

arguing that the plaintiff’s oral motion denied him the

opportunity to prepare a proper response. The court

then vacated its dismissal of the motions and provided

the parties with an opportunity to brief the issues and

request additional oral argument.

On May 12, 2017, the plaintiff filed a motion, along

with a supporting memorandum of law, seeking dismissal of the defendant’s motion for modification of

alimony and motion for contempt. In response, the

defendant filed an objection to the motion to dismiss

and an affidavit from Attorney Palmer.

On August 1, 2017, the parties appeared before the

court for a hearing on the plaintiff’s motion to dismiss.
At the hearing, the defendant was represented by Attorney Timothy McGuire and Attorney Palmer. After argument by both parties, the court informed the parties

that it was reserving its decision on the motion to dismiss. On September 15, 2017, the court issued a written

memorandum of decision,6

in which it granted the plaintiff’s motion to dismiss under Practice Book § 14-3 and

denied the plaintiff’s motion to dismiss under Practice

Book § 25-34.7 This appeal followed.

We begin our analysis of the defendant’s claim that

his motions should not have been dismissed with the

relevant law and our standard of review. ‘‘Practice Book

§ 14-3 (a) permits a trial court to dismiss an action8

with costs if a party fails to prosecute the action with

reasonable diligence. The ultimate determination

regarding a motion to dismiss for lack of diligence is

within the sound discretion of the court. . . . Under

[§ 14-3], the trial court is confronted with endless gradations of diligence, and in its sound discretion, the court

must determine whether the party’s diligence falls

within the ‘reasonable’ section of the diligence spectrum. . . .

‘‘We review the trial court’s decision for abuse of

discretion. . . . In determining whether a trial court

abused its discretion, the 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. . . . In determining whether there has

been an abuse of discretion, the ultimate issue is

whether the court could reasonably conclude as it

did. . . .

‘‘A trial court properly exercises its discretion to dismiss for failure to prosecute [with reasonable diligence]

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

. . . .’’ (Citations omitted; footnote added; internal quotation marks omitted.) Bobbin v. Sail the Sounds, LLC,

153 Conn. App. 716, 726–27, 107 A.3d 414 (2014), cert.

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

‘‘The court’s discretion, however, is not unfettered; it

is a legal discretion subject to review. . . . [D]iscretion

imports something more than leeway in decision-making. . . . It means a legal discretion, to be exercised

in conformity with the spirit of the law and in a manner

to subserve and not to impede or defeat the ends of

substantial justice.’’ (Internal quotation marks omitted.)

Speer v. Dept. of Agriculture, 183 Conn. App. 298, 303,

192 A.3d 489 (2018).

The purpose of Practice Book § 14-3 is to ‘‘ensure

the proper movement of cases and to prevent a backlog

of the docket’’ so as to avoid permitting cases to ‘‘drift

aimlessly through the system.’’ (Internal quotation

marks omitted.) Fuller v. Commissioner of Correction,
75 Conn. App. 814, 818–19, 817 A.2d 1274, cert. denied,

263 Conn. 926, 823 A.2d 1217 (2003). The court has,

consistent with these principles, established that

‘‘lengthy periods of inactivity by the plaintiff constitute

sufficient grounds for a trial court to determine that

the plaintiff has failed to prosecute an action with reasonable diligence.’’ (Internal quotation marks omitted.)

Brochu v. Aesys Technologies, 159 Conn. App. 584, 593,

123 A.3d 1236 (2015).

‘‘The design of the rules of practice is both to facilitate

business and to advance justice; they will be interpreted

liberally in any case [in which] it shall be manifest

that a strict adherence to them will work surprise or

injustice. . . . Rules are a means to justice, and not an

end in themselves.’’ (Internal quotation marks omitted.)

Millbrook Owners Assn., Inc. v. Hamilton Standard,

257 Conn. 1, 16, 776 A.2d 1115 (2001).

Importantly, ‘‘[c]ourts must remain mindful . . .

that [i]t is the policy of the law to bring about a trial

on the merits of a dispute whenever possible . . . and

that [o]ur practice does not favor the termination of

proceedings without a determination of the merits of

the controversy [if] that can be brought about with due

regard to necessary rules of procedure. . . . Disciplinary dismissals pursuant to Practice Book § 14-3, thus,

are not favored . . . .’’ (Citation omitted; emphasis

added; internal quotation marks omitted.) Bank of New

York Mellon v. Horsey, 182 Conn. App. 417, 429, 190 A.3d

105, cert. denied, 330 Conn. 928, 194 A.3d 1195 (2018).

Accordingly, ‘‘although dismissal of an action is not

an abuse of discretion [if] a party shows a deliberate,

contumacious or unwarranted disregard for the court’s

authority . . . the court should be reluctant to employ

the sanction of dismissal except as a last resort . . .

and [if] it would be the only reasonable remedy available

to vindicate the legitimate interests of the other party

and the court.’’ (Citations omitted; internal quotation

marks omitted.) Millbrook Owners Assn., Inc. v. Hamilton Standard, supra, 257 Conn. 16–17.

Finally, even though a trial court has wide discretion

in determining whether to dismiss an action for failure

to prosecute it with due diligence, there are limits to

this discretion. Importantly, sanctions imposed by the

court must be proportional to the violation or misconduct. See id., 18; see also Ridgaway v. Mount Vernon

Fire Ins. Co., 328 Conn. 60, 176 A.3d 1167 (2018) (holding that Millbrook proportionality test, which applied

to sanctions involving violations of discovery order,

applies to all sanctions). In Ridgaway, our Supreme

Court reasoned, ‘‘[i]ndeed, we cannot imagine a circumstance under which it would not be an abuse of discretion to impose a sanction that is disproportionate to the

misconduct.’’ (Emphasis added.) Ridgaway v. Mount

Vernon Fire Ins. Co., supra, 72.
Our Supreme Court has identified the following factors as relevant to determining the proportionality of

a sanction: the nature and frequency of the misconduct,

notice of the possibility of a sanction,9

the availability

of lesser sanctions, and the client’s participation in or

knowledge of the misconduct. Id., 73. Our Supreme

Court also noted that these principles reflect that, in

assessing proportionality, a trial court must consider

the totality of the circumstances, including, most

importantly, the nature of the conduct itself. Id., 76. We

recognize that the Millbrook factors were established

in the context of noncompliance with discovery orders,

whereas the present case pertains to a failure to prosecute with due diligence pursuant to Practice Book § 14-

3. Accordingly, we have adapted the factors to fit the

circumstances of the present case.

With respect to the first factor, the nature and frequency of the misconduct, it is logical that particularly

egregious or frequent misconduct, such as repeated

refusals to comply with a court order, warrants more

severe sanctions. See id., 73. The court in Ridgaway,

however, also acknowledged that although our courts

have not considered whether a single act of misconduct

could warrant imposing a judgment of nonsuit or similar

sanction, courts in other jurisdictions have concluded

that a single act could warrant nonsuit or dismissal

if the act is sufficiently egregious, particularly if the

improper conduct involves the perpetration of a deception on the court. Id., 73–74.

The conduct for which the court imposed the sanction of dismissal in the present case was a onetime,

one and one-half year delay that occurred after the

defendant’s counsel had been diagnosed with a serious

illness. The defendant’s counsel eventually transferred

the case to another attorney, who appeared in court

ready to prosecute the motions. There is no evidence

in the record, nor does the plaintiff claim, that during

the period of delay the defendant ever was ordered

specifically by the court to prosecute more expeditiously the motions, let alone that the defendant disregarded such an order. Further, there is no suggestion

by the plaintiff or the court that the delay in this matter

involved the perpetration of a deception on the court.

With respect to the next factor—notice of the possibility of a sanction—our Supreme Court noted that in

instances in which our appellate courts have upheld

the sanction of a nonsuit, a significant factor has been

that the trial court put the plaintiff on notice that noncompliance would result in a nonsuit. Id., 74. We

acknowledge that Practice Book § 14-3 generally puts

a party on notice of the possibility of dismissal for

failure to prosecute an action with due diligence. Nevertheless, we find it relevant that, unlike in the cases

described in Ridgaway, in which the court made various orders in which the party was explicitly informed
that failure to follow would result in nonsuit, here,

the first time that the defendant was confronted with

potential dismissal was at the hearing on the merits of

the motion. Notably, this was a hearing in which both

parties were prepared to move forward. There was

nothing further the defendant needed to do to comply

with § 14-3, as he was already willing and able to prosecute the motions that day.

Next, in evaluating the third factor, i.e., the availability of lesser sanctions, the court in Ridgaway noted

that, ‘‘[our Supreme Court] has refused to uphold a

sanction of nonsuit when there were available alternatives to dismissal that would have allowed a case to be

heard on the merits while ensuring future compliance

with court orders.’’ Id., 75. As to this factor, in addition

to citing Connecticut case law, the court in Ridgaway

took note of other jurisdictions that similarly have

reversed a sanction of nonsuit or dismissal when it had

not been established that a lesser sanction would be

inadequate to vindicate the interests of the other party

and the trial court. Notably, the Ridgaway court cited

to McKoy v. McKoy, 214 N.C. App. 551, 554, 714 S.E.2d

832 (2011), in which the court vacated the trial court’s

order dismissing a counterclaim for failure to prosecute

because the trial court made no findings that lesser

sanctions were considered and found inadequate. Ridgaway v. Mount Vernon Fire Ins. Co., supra, 328 Conn.

75. The court in McKoy noted that ‘‘involuntary dismissal of a claim is one of the harshest sanctions at

a trial court’s disposal, effectively extinguish[ing] the

[party]’s cause of action and deny[ing] [the party] his [or

her] day in court.’’ (Internal quotation marks omitted.)

McKoy v. McKoy, supra, 553. Similarly, here, the court

made no findings in its memorandum of decision that

it considered and found inadequate lesser sanctions

before dismissing the motions for failure to prosecute.

As to the last factor, i.e., the client’s participation in

or knowledge of the misconduct, the court in Ridgaway

stated that, ‘‘[w]hether the misconduct was solely attributable to counsel and not to the party also has been a

factor in assessing whether a less severe sanction than

a nonsuit or dismissal should have been ordered.’’ Ridgaway v. Mount Vernon Fire Ins. Co., supra, 328 Conn.

75. In evaluating this factor, our Supreme Court cited

to cases in which the degree of personal involvement

of the client in the misconduct, was evaluated in

determining proportionality. Id., 75–76; see Herrick v.

Monkey Farm Cafe, LLC, 163 Conn. App. 45, 49–50, 53,

134 A.3d 643 (2016) (trial court abused its discretion

in rendering judgment of nonsuit when attorney failed

to timely pay attorney’s fees of opposing parties); EMM

Enterprises Two, LLCv. Fromberg, Perlow and Kornik,

P.A., 202 So. 3d 932, 934 (Fla. App. 2016) (before dismissal for fraud on court, factors to be considered

include personal involvement of plaintiff); Eaton Corp.

v. Frisby, 133 So. 3d 735, 759 (Miss. 2013) (dismissal
was proper exercise of court’s discretion when plaintiff

knew, through its corporate officers, that counsel had

engaged in improper ex parte communication with

judge). Here, the delay in prosecuting the motions was

due to the illness of the defendant’s attorney, which

fell well outside the control and personal involvement

of the client, and thus tends not to justify the severe

sanction of dismissal.

Finally, because a trial court must consider the totality of the circumstances, we evaluate the Ridgaway

factors in light of the prejudice to the plaintiff in the

present case. Ridgaway v. Mount Vernon Fire Ins. Co.,

supra, 328 Conn. 76. The plaintiff argued that the defendant’s delay prejudiced her by the potential retroactivity

of the motion for modification of alimony.10 Specifically,

she argued that if the modification of alimony were to

apply retroactively, she would have exposure to pay

back the difference in alimony for the four and a half

years that had passed since the motion was originally

filed. Therefore, she would be at risk to pay back a

large sum of money.

Dismissal, however, was not the only remedy available to ameliorate the plaintiff’s retroactivity concern.

Rather, the court could have addressed the issue as

part of its adjudication of the merits of the motion for

modification. For example, the trial court could have

granted the defendant’s motion to modify alimony prospectively, but denied the retroactive application of the

order. See Hane v. Hane, 158 Conn. App. 167, 176,

118 A.3d 685 (2015) (there is no ‘‘bright line test for

determining retroactivity’’ of modification to alimony or

child support; instead, trial court is to consider factors

applicable given facts and circumstances of case, and

may consider length of time period to adjudicate motion

for modification). Moreover, if the court concluded that

retroactive modification of alimony was appropriate, it

could have crafted a repayment plan that could have

allowed the plaintiff to pay back the defendant over

time. Therefore, for the reasons stated previously, it was

improper for the trial court to dismiss the defendant’s

motions without a hearing on the merits.

In addition to dismissal being a disproportionate

sanction, the present case is distinguishable from cases

in which dismissal under Practice Book § 14-3 was

found to be proper. A brief discussion of some of these

cases illustrates this point. For example, in Ill v. ManzoIll, 166 Conn. App. 809, 142 A.3d 1176 (2016), the defendant appealed from the judgment of the trial court dismissing, pursuant to Practice Book §§ 25-34 (e) and 14-

3, her postdissolution motion to modify her alimony

award. Id., 817–19. The defendant filed her motion for

modification of alimony on April 6, 2010. Id., 813. On

February 22, 2012, almost two years after the defendant

had filed her motion for modification, the plaintiff

moved to dismiss the defendant’s motion on the
grounds that (1) the defendant had not prosecuted her

motion with reasonable diligence pursuant to § 14-3 and

(2) had failed to reclaim it within three months from

its filing date pursuant to § 25-34 (e).11 Id., 815. The

defendant filed an objection to the plaintiff’s motion to

dismiss, which the court sustained. Id., 815–16. After

the court’s ruling, the defendant took some steps to

pursue discovery. Id., 816. Despite initiating efforts to

take numerous depositions throughout the pendency

of her motion, however, the defendant admitted that

she never took a single deposition. Id., 817.

After the passage of another year and ten months,

on December 26, 2013, the plaintiff in Ill filed a second

motion to dismiss the defendant’s motion for modification pursuant to Practice Book §§ 14-3, 25-34 (e), and

25-48. Id., 817. On February 19, 2014, the defendant filed

an objection to the plaintiff’s motion to dismiss. Id.,

818. The court subsequently heard oral argument on

the motion to dismiss, which it granted on May 14,

2014. Id.

In affirming the judgment of dismissal pursuant to

Practice Book § 14-3, this court concluded that the

defendant’s inactivity for extended time periods and

her repeated failure to complete noticed depositions

supported the dismissal. Id., 827–30. This court emphasized that, even after the trial court denied the plaintiff’s

first motion to dismiss and informed the defendant of

her duty to ensure the progress of her motion to modify,

she ‘‘did not accelerate or streamline her scattered and

imprecise discovery efforts . . . ignored the court’s

direction to obtain a hearing date and never sought a

scheduling order . . . .’’ Id. 830. Further, although the

defendant argued that her delay was justified due to

the plaintiff’s appeal of the original alimony order and

failure to provide discovery in good faith, this court

disagreed stating that it was not evident how the plaintiff’s appeal, which was withdrawn in 2010, ‘‘would have

affected her ability to proceed efficiently for the next

three and one-half years’’ and rejected the defendant’s

claim that the plaintiff had engaged in bad faith delay

tactics regarding discovery. Id., 827.

In Brochu v. Aesys Technologies, supra, 159 Conn.

App. 586–87, this court found that an unjustified delay

of more than four years in substituting a representative

of the decedent’s estate as the party plaintiff supported

the trial court’s dismissal of the action for failure to

prosecute with due diligence pursuant to Practice Book

§ 14-3. In affirming the dismissal, this court emphasized

that the plaintiff never provided the court with a compelling reason for her failure to substitute herself in,

despite having years in which to have done so, and

failed to provide a reason on appeal. Id., 592. This court

in Fuller v. Commissioner of Correction, supra, 75

Conn. App. 815, affirmed the dismissal, pursuant to § 14-

3, of the petitioner’s petitions for a writ of habeas corpus
and a new trial because the petitioner had engaged in

various delay tactics, requested an indefinite postponement of her trial, was unable to proceed with trial when

asked by the court to call her first witness, and, after

the court postponed the trial to the following day, was

again unable to proceed. Id., 815–19. Finally, in Bobbin

v. Sail the Sounds LLC, supra, 153 Conn. App. 728–29,

this court affirmed the trial court’s dismissal, pursuant

to § 14-3, of the plaintiff’s application to compel arbitration where the plaintiff engaged in minimal activity on

the case for almost four years.

The present case is readily distinguishable from Ill,

Brochu, Fuller, and Bobbin. Here, the case had not

‘‘drift[ed] aimlessly through the system.’’ See Brochu v.

Aesys Technologies, supra, 159 Conn. App. 593. The

defendant provided a compelling reason for the delay,

both parties were fully prepared to move forward with

a trial on the merits of the motions, and the defendant

never received, let alone ignored, orders from the court

regarding the motions. Here, a single, one and one-half

year period of inactivity from June, 2015, to December,

2016, occurred. Directly before this period of inactivity,

the defendant’s counsel had been diagnosed with Parkinson’s disease, and was attempting to organize his

practice accordingly. The plaintiff never seriously disputed that the defendant’s counsel suffered from significant health issues, or that he had taken efforts to inform

the courts in which he was practicing that there could

be delays in prosecuting his cases.12

Finally, we are concerned that the court’s decision to

dismiss the defendant’s motions creates an appearance

that it was punishment for the defendant’s refusal to

waive a claim that any reduction in alimony should be

retroactive to the date that the motion for modification

of alimony was filed.

This court has recognized, in the context of settlement discussions, that ‘‘[w]hen . . . a judge engages

in [discussions] looking to the settlement of a case . . .

in which he will be called upon to decide the issues of

liability and damages . . . [i]t is . . . impossible to

avoid questions as to whether the judge can disregard

. . . matters disclosed in the conference . . . and

whether a preliminary judgment, formed at the conference and predicated on unsubstantiated claims of proof,

may have some subtle influence on a final judgment

after a full hearing. . . . It is inevitable that the basis

is laid for suspicion, no matter how unfounded or

unjustified it may be, and that failure to concur in what

the judge may consider an adequate settlement may

result in the imposition, upon a litigant or his counsel, of

some retributive sanction or the incurrence of judicial

displeasure.’’ (Internal quotation marks omitted.) Carvalhos Masonry, LLC v. S & L Variety Contractors,

LLC, 180 Conn. App. 237, 240–41, 183 A.3d 697 (2018).

We find the same concerns to exist in the present
case. At the initial hearing on the defendant’s motions,

the court asked if the defendant would waive retroactivity with respect to the motion for modification and

when he refused, it immediately granted the plaintiff’s

motion to dismiss his motions. The following colloquy occurred:

‘‘The Court: The position of counsel for the plaintiff

is that he’s willing to waive the provision of [Practice

Book §] 25-34 subsection F if there’s no retroactivity.

Are you asking for retroactivity in the event I enter a

modified order?

‘‘[The Defendant’s Counsel]: We are, Your Honor,

however I don’t think that . . . is something that could

be waived or granted at the outset of a trial. I think

that’s something for the finder of fact to determine, and

certainly that is a factor for the finder of fact to consider

when determining whether or not to award retroactivity.

‘‘The Court: Parties can always waive retroactivity if

they want to waive it. My question is are you waiving

retroactivity in the event I grant your motion to modify?

‘‘[The Defendant’s Counsel]: No, Your Honor.

‘‘The Court: Pardon me?

‘‘[The Defendant’s Counsel]: No, Your Honor.

‘‘The Court: All motions are off for failure to comply

with [§] 25-34 subsection F. They’ll have to all be

refiled.’’

After the court dismissed the defendant’s motions,

the plaintiff requested a recess for the defendant’s counsel to discuss with the defendant waiving retroactivity.

The court stated in response to the request of the plaintiff’s counsel, ‘‘I’ll give them that opportunity. Otherwise, my order of dismissal will remain in effect and if

anyone wants to be heard on any motions, they’ll have

to refile them. . . . I already told you what the order’s

going to be if there’s no waiver; I’m going to enforce

the Practice Book Rule.’’ (Emphasis added.)

In this context, the court’s decision to dismiss the

defendant’s motions gives rise to an appearance that

dismissal was in retaliation for the defendant’s decision

to decline the plaintiff’s request that he waive retroactivity. The fact that the court ultimately withdrew its ruling

dismissing the motions pursuant to Practice Book § 25-

34 (f) and allowed the parties the opportunity to brief

and argue the motion to dismiss does not negate fully

the appearance that the dismissal was punitive in

nature. A trial court cannot attempt to force a party to

engage in horse trading and then punish them when

they decline to do so.

The judgment is reversed and the case is remanded

for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.
1 Practice Book § 14-3 is made applicable to family matters by Practice

Book § 25-48 and provides in relevant 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 pursuant to Section 11-

1, or on its own motion, render a judgment dismissing the action with

costs. . . .’’

2 The parties’ separation agreement provided in relevant part:

‘‘ARTICLE II – ALIMONY AND SUPPORT

‘‘2.1. The [h]usband shall pay, during his lifetime, to the wife until her

remarriage or death, whichever first occurs, the following allowances as

alimony and support for the [w]ife and children:

‘‘A. On the first day of the first month following the date of this agreement,

and on the first day of each succeeding month until the house located at

121 Cedar Lane, Ridgefield, Connecticut is sold the sum of $4,600.00, and,

after the house is sold, the sum of $2,850.00. The obligations of the [h]usband

under this sub-paragraph A. shall be suspended during any period of more

than 60 consecutive days in which the [w]ife cohabits with a person of the

opposite sex.

‘‘B. The monthly payments to be made by the [h]usband to the [w]ife

pursuant to subparagraph A. above shall be reduced by the sum of ($650.00)

[d]ollars when the minor child (a) marries, (b) dies, (c) attains the age of

eighteen (18) years, or (d) becomes emancipated or lives with the [h]usband.

* * *

‘‘ARTICLE III – WAIVER OF ALIMONY

* * *

‘‘3.2 In the event the [w]ife becomes gainfully employed, by any employer

other than Upneumat International, Inc., the [h]usband shall be entitled to

a credit of 25 [percent] of the [w]ife’s salary over and above the first $250.00

per month averaged over a full year’s period, as against the amount of

alimony due by [h]usband to [w]ife. The [w]ife shall annually provide the

[h]usband with copies of any W-2 forms issued to her and her federal income

tax return. The term ‘‘salary’’ used herein shall be deemed to include income

received by the [w]ife from [s]ocial [s]ecurity, [p]ension and [p]rofit [s]haring

[p]lan whether or not she is gainfully employed at the time of such receipt.’’

3 On March 15, 2013, the plaintiff filed a motion for contempt regarding

nonpayment of alimony. No action was taken on the plaintiff’s motion.

4 The plaintiff instituted a separate action in the Superior Court of California seeking to enforce the Connecticut spousal support order and to collect

outstanding spousal support from the defendant. On October 23, 2001, the

parties stipulated, and the California court ordered, that ‘‘[b]eginning on

August 1, 2001, [the defendant] shall pay $1,741.76 per month to [the plaintiff]

as ongoing current spousal support on the [first] day of the month for which

it is due.’’

In his motion in limine, the defendant moved to preclude the plaintiff

from offering into evidence any testimony or documents to vary or contradict

the terms of paragraph 3.2 of the parties’ separation agreement; see footnote

2 of this opinion; or to vary or contradict the terms of the parties’ October

23, 2001 stipulation and order of the Superior Court of California.

5 Practice Book § 25-34 (f) provides: ‘‘Failure to appear and present argument on the date set by the judicial authority shall constitute a waiver of

the right to argue unless the judicial authority orders otherwise. 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.’’

6 The trial court’s memorandum of decision contains minimal analysis of

the parties’ claims. Further, the memorandum mostly is comprised of quoted

material from the parties’ memoranda of law, as well as the borrowing of

headings from various pleadings.

7 Specifically, the court held that Practice Book § 25-34 (f) did not apply

because counsel appeared on the date set for hearing and the plaintiff failed

to file her motion to dismiss under § 25-34 (f) prior to the hearing date.

Section 25-34 (f) expressly states that it is inapplicable to those motions in

which 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. See footnote 5 of this opinion.

8

‘‘[T]he word action means the lawful demand of one’s right in a court

of justice . . . . It includes not only the usual civil action instituted by

process but also proceedings initiated by . . . motion.’’ (Internal quotation
marks omitted.) Ill v. Manzo-Ill, 166 Conn. App. 809, 824, 142 A.3d 1176

(2016).

9 Although our Supreme Court inRidgaway addressed whether a judgment

of nonsuit was a proportionate sanction, whereas in the present case we

consider whether dismissal of the defendant’s motions was an appropriate

sanction, for our purposes, we find that these sanctions are equivalent in

that both fully dispose of the action at issue, and, therefore, we analyze the

same factors in the present case. See Ridgaway v. Mount Vernon Fire Ins.

Co., supra, 328 Conn. 60.

10 At the hearing on the defendant’s motions on April 20, 2017, the plaintiff’s

counsel stated, ‘‘I am glad to go forward today if the sanction for the

nonprosecution of the motion or the order is that; that there will be no

retroactivity and we’re going forward. I am prepared, Your Honor.’’

Further, at the August 1, 2017 hearing on the plaintiff’s motion to dismiss

the defendant’s motions, the plaintiff’s counsel again argued that he could

not have his client subjected to the retroactivity risk on the motion for

modification of alimony. The plaintiff’s counsel stated, ‘‘if retroactiv[ity] is

gone, which was my initial plan, then my client’s not prejudiced.’’ (Emphasis added.)

11 When Practice Book § 25-34 was amended in 2016, effective January 1,

2017, subsection (e) was redesignated as subsection (f).

12 The plaintiff objected to affidavit of the defendant’s counsel, in which

counsel described his illness and the steps he took after his diagnosis in

order to inform the courts of how his illness would delay the progress of

his cases. Although the plaintiff’s counsel objected as to the effect that the

illness of the defendant’s counsel had on his ability to work, he did not

seriously object to the fact that the defendant’s counsel was in fact diagnosed

with Parkinson’s disease, or argue that counsel was not truthful in his

representation to the court that he had spoken with the various courts in

which he was working regarding his illness.

The trial court ultimately indicated that it was not persuaded that the

affidavit properly was before the court under Practice Book § 25-13 because,

unlike in the present case, that section applies only if the grounds for the

motion to dismiss concern defects in jurisdiction, venue and process. Despite

that conclusion, the trial court in its memorandum of decision recognized

the illness of the defendant’s counsel and made reference to information

from his affidavit. Namely, the court referenced that the defendant’s counsel

met with judges whom he had cases before in order to apprise them of

his illness.

We also note that, even when not under oath, ‘‘[a]ttorneys are officers of

the court, and when they address the judge solemnly upon a matter before the

court, their declarations are virtually made under oath.’’ (Internal quotation

marks omitted.) State v. Webb, 238 Conn. 389, 420, 680 A.2d 147 (1996);

Rules of Professional Conduct 3.3.