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JAMES BAKER v. LISA WHITNUM-BAKER*

Superior Court, Judicial District of Stamford-Norwalk

File No. FA-12-4023288-S

Memorandum filed May 21, 2014

Proceedings

Memorandum of decision on defendant’s motion to

open dissolution judgment and petition for new trial.

Motion and petition denied.

George A. Reilly, Ross M. Kaufman and Jacquelyn

Conlon, for the plaintiff.

Lisa Whitnum-Baker, self-represented, the

defendant.
Opinion

HELLER, J. The marriage of the plaintiff, James

Baker, and the defendant, Lisa Whitnum-Baker, was

dissolved on September 10, 2013 (Munro, J.). On October 30, 2013, while her appeal from the judgment of

dissolution and seven other consolidated appeals were

pending, the defendant filed a motion to open judgment

and petition for a new trial (#240.01),1in which she

sought to have the dissolution judgment opened and a

new trial granted on the following grounds:

1. ‘‘A new trial date was set in violation of the [sic]

Judge White’s Order of August 12, 2013 for a September

21, 2013 trial date.’’

2. ‘‘The court refused to grant a continuance in favor

of the defendant when this defendant’s attorney terminated representation abruptly and discovery

remained outstanding.’’

3. ‘‘The court refused to grant a continuance in favor

of the defendant when this defendant was required to

appear in a separate court on a criminal matter simultaneously.’’

4. ‘‘Financial information proffered was incorrect,

fraudulent, and subpoenas of Wells Fargo employees,

to prove the point, were not honored by the Hon. Linda

[sic] Munro.’’

5. ‘‘The Hon. Linda [sic] Munro refused to depose

Mr. Kaufman, Ms. Hanley, Ms. Jackson, and Mr. Haine,

despite their being duly served with court-ordered subpoenas and their being in the building.’’

6. ‘‘New information not available at the time of trial

emerged after the trial from defendant’s former attorney, Andre Cayo, despite the fact that he attended the

divorce as a spectator!’’

7. ‘‘Four motions and the Amended Cross-Complaint

were ruled without counsel present, and without argument, by default.’’

8. ‘‘PREJUDICE: This defendant-wife was required

to physically provide the indifferent person who served

her subpoenas in order to have her witnesses compelled. There is no rule in the Practice Book requiring

this especially when subpoenas with raised sealed affidavits by a notary were provided. This behavior on

the part of Hon. Lynda Munro was highly prejudicial

and unorthodox.’’

9. ‘‘At the time of the hearing for Motion for Moving

Expenses Judge Schofield said this would be settled at

divorce trial. It was never discussed.’’

10. ‘‘The time lag between when Attorney Cayo

stopped responding to defendant, the time when he

submitted an email resignation and the time he filed the

withdrawal contained large time gaps. This defendant
failed to detail that in the Request for Continuance.’’

An evidentiary hearing on the defendant’s motion to

open and petition for a new trial was held on January

21, 2014. The defendant testified under oath, and the

court heard oral argument from the defendant, who

represented herself, and counsel for the plaintiff. On

March 31, 2014, the court permitted the defendant to

supplement the evidence that she offered in support of

her petition for a new trial with information that she

obtained from the Judicial Branch website. The defendant said that the information related to the person

who served her trial subpoenas. The court has also

taken judicial notice of the record in the dissolution

trial; the contents of the court file; relevant prior proceedings in this case; memoranda of decision and

orders of the court in related matters; and the appellate

history of this litigation.

Having carefully considered the relevant and credible

evidence offered and the court records judicially

noticed, the court denies the defendant’s motion to

open the judgment of dissolution and petition for a new

trial for the reasons set forth below.

I

The plaintiff and the defendant were married on

March 21, 2012. The plaintiff was approximately eightysix years old and the defendant was approximately fiftytwo years old at the time of the marriage. They resided

together for approximately seven to ten days following

the marriage. Seventy-seven days after the parties were

married, the plaintiff commenced an action, returnable

June 26, 2012, to dissolve his marriage to the defendant.

The defendant filed an answer and cross complaint

on October 23, 2012 (#122.00), and an amended cross

complaint on February 20, 2013 (#130.00). The plaintiff

answered the amended cross complaint on September

9, 2013 (#216.00).

On August 12, 2013, the parties were before the court

(White, J.) with respect to motions on the family short

calendar and related matters. Ruling on the defendant’s

motion for a change of venue for the trial of the dissolution case (#173.00), Judge White ordered that the dissolution trial would remain in Stamford, but it would be

before a judge from a different judicial district. The

court continued the August 23, 2013 trial date, stating:

‘‘We’re going to move this matter to Septemberthe 22nd

or thereabouts, subject to change.’’2

The dissolution trial was scheduled for September 9

and 10, 2013, before the Hon. Lynda Munro. The defendant filed three emergency motions for a continuance

(#184.00; #185.00; #186.00). The court (Munro, J.)

denied the motions on September 5, 2013.

The dissolution trial commenced on September 9,

2013. The defendant represented herself,3 and she

actively participated in the proceedings before the
lunch recess. The court denied the defendant’s motion

to disqualify counsel for the plaintiff (#192.00; #193.00)

after hearing testimony from the plaintiff’s son and

inquiring of the plaintiff directly. The court advised

the defendant that her remaining motions would be

considered when she proceeded on her cross complaint.

The plaintiff testified as part of his direct case, and

the defendant had an opportunity to cross-examine him.

Counsel for the plaintiff also called the defendant as a

witness. Following her testimony, the defendant

responded with a narrative on her own behalf. After

the plaintiff rested, the defendant called her former

attorney to testify in support of her motions for a continuance and her cross complaint.

The defendant advised the court at the beginning of

the proceedings on September 9, 2013, that she had to

appear in the criminal court the following day. Judge

Munro instructed the defendant to contact the clerk’s

office during the morning recess to request a continuance. When the court inquired of the defendant as to

whether she had done so, the defendant responded,

‘‘No,’’ and said, ‘‘I have bigger fish to fry than that.’’

The defendant said that she had served subpoenas

on twenty witnesses, who had not appeared for the

trial. She asked that the court issue capiases for the

nonappearing witnesses. Judge Munro told the defendant that if she wanted capiases issued she would have

to produce her process server following the lunch

recess, so that the court could be satisfied that he was

an ‘‘indifferent person,’’ and that the witnesses had been

properly served.

The defendant did not appear in court following the

lunch recess. Judge Munro stated that a call had come

into the clerk’s office reporting that the defendant’s car

had broken down and she would not be returning to

court that day. The court also indicated that the defendant had been advised that she needed to find alternative transportation to the courthouse. When the

defendant did not appear by 3 p.m., the court adjourned

the proceedings until 11:30 a.m. on September 10, 2013.

The trial resumed on September 10, 2013, at 11:35

a.m. The defendant did not appear. Judge Munro stated

that the chief clerk of the Stamford court had arranged

to have the defendant’s court date in Bridgeport continued so that a competing court appearance had not

delayed the defendant from appearing that morning.

The court determined thatthe defendant had not availed

herself of the opportunity to appear and present witnesses and evidence on her cross complaint, her two

motions to dismiss, and her motion for contempt and

faith based conciliation. After brief closing remarks

from counsel for the plaintiff, the court denied the

defendant’s motions to dismiss and her motion for faith
based conciliation. The court dismissed the defendant’s

motion for contempt. The court denied the defendant’s

cross complaint and rendered judgment for the plaintiff

on the cross complaint. With respect to the plaintiff’s

complaint, the court entered findings on the record,

including that the marriage of the parties had broken

down irretrievably, and ordered that the marriage be

dissolved. The court did not order any alimony for

the defendant.

Before the court concluded its decision on the record,

Attorney Cayo advised that the defendant had called

and she would be there in thirty minutes. Judge Munro

addressed the remaining issue of sanctions and

recessed until 12:34 p.m. When the proceedings

resumed, the defendant was not present. The court

noted her absence and announced that the court orders

would stand. Court was then adjourned.

On September 27, 2013, the defendant appealed from

the judgment of dissolution (AC 36132);4

the denial of

her motion to dismiss (#183.00) (AC 36131);5

the denial

of her motions for disqualification (#192.00; #193.00)

(AC 36133);6 and the denial of her motion to dismiss

(#181.00) (AC 36134).7 On September 30, 2013, the

defendant appealed from the denial of her motion to

reargue/reconsider (#220.00) (AC 36135);8

the court’s

ruling on her amended cross complaint (#147.00) (AC

36136);9

the court’s order holding her in contempt

(#219.00) (AC 36137);10 and the court’s ruling on her

motion for contempt and request forfaith based conciliation (#190.00) (AC 36138).11 The Appellate Court

acknowledged receipt of the defendant’s eight consolidated appeals—AC 36131 to AC 36138—on November

1, 2013.

On November 19, 2013, the Appellate Court issued

four orders dismissing consolidated appeals AC 36132

(appeal from the dissolution judgment), AC 36134

(appeal from the denial of the motion to dismiss), AC

36135 (appeal from the denial of the motion to reargue),

and AC 36137 (appeal from the order holding the defendant in contempt). Each order stated that the appeal

was dismissed for the defendant’s failure to comply

with an order of the court, dated November 8, 2013, that

ordered the dismissal of the appeal unless the defendant

filed the documents required by Practice Book § 63-4

and, if a transcript was ordered for the appeal, a court

reporter’s written acknowledgment of the transcript

order, with an estimated delivery date, on or before

November 18, 2013.

As noted above, the defendant filed the motion to

open and petition for a new trial on October 30, 2013,

while her eight consolidated appeals were pending. The

evidentiary hearing on the defendant’s motion to open

and petition for a new trial took place on January 21,

2014, after her appeal from the dissolution judgment

and three of the remaining seven appeals had been
dismissed. The court was advised by counsel for the

plaintiffthat the defendant’s appealfrom the dissolution

judgment had been dismissed, but the defendant said

that was not true.12

On February 11, 2014, the Appellate Court, after a

hearing, dismissed the defendant’s four remaining consolidated appeals—AC 36131, AC 36133, AC 36136, and

AC 36138. These appeals were dismissed for lack of a

final judgment because the defendant’s appeal from

the judgment of dissolution, AC 36132, was previously

dismissed on November 19, 2013, and the four

remaining consolidated appeals were not taken from

appealable final judgments.

The defendant moved forreargument in the Appellate

Court on February 20, 2014. She asked that her appeal

of the dissolution judgment, AC 36132, as well as the

four consolidated appeals that were dismissed on February 11, 2014, be reinstated. On March 6, 2014, the

Appellate Court denied the defendant’s motion to reargue (#258.00).

On March 19, 2014, the defendant filed a motion to

open judgment in the Appellate Court, seeking to open

the November 19, 2013 order dismissing AC 36132, her

appeal from the judgment of dissolution (#260.00). The

Appellate Court denied the defendant’s motion to open

judgment on April 16, 2014, because the motion was

untimely and the defendant had failed to file her Practice Book § 63-4 documents specifically for AC 36132

(#261.00).

II

The defendant seeks to have the dissolution judgment

opened pursuant to General Statutes § 52-212. Section

52-212 (a) provides that ‘‘[a]ny judgment rendered or

decree passed upon a default or nonsuit in the Superior

Court may be set aside, within four months following

the date on which it was rendered or passed, and the

case reinstated on the docket, on such terms in respect

to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, orthat a good

cause of action or defense in whole or in part existed

at the time of the rendition of the judgment or the

passage of the decree, and that the plaintiff or defendant

was prevented by mistake, accident or otherreasonable

cause from prosecuting the action or making the

defense.’’ General Statutes § 52-212 (a). The complaint

or written motion to set aside the judgment ‘‘shall state

in general terms the nature of the claim or defense and

shall particularly set forth the reason why the plaintiff

or defendant failed to appear.’’ General Statutes § 52-

212 (b).

Section 52-212 is not applicable here because the

dissolution judgment was not entered upon a default.

Although the defendant claims to have been divorced
‘‘in abstention,’’ the record is clear that she was present

when the trial of this dissolution action began, and she

actively participated in the proceedings while she was

in the courtroom. The defendant represented herself,

she questioned the plaintiff’s son on her motion to disqualify, she cross-examined the plaintiff, she testified

during the plaintiff’s direct case, and she offered a narrative on her own behalf. She called her former attorney

to testify on her direct case, in support of her motions

for a continuance and her cross complaint. The defendant’s motion to open the judgment pursuant to § 52-

212 is, therefore, denied.

III

The defendant has also petitioned for a new trial

pursuant to General Statutes § 52-270. Section 52-270

(a) provides in pertinent part that ‘‘[t]he Superior Court

may grant a new trial of any action that may come before

it, for mispleading, the discovery of new evidence or

want of actual notice of the action to any defendant or

of a reasonable opportunity to appear and defend, when

a just defense in whole or part existed, or the want of

actual notice to any plaintiff of the entry of a nonsuit

for failure to appear at trial or dismissal for failure

to prosecute with reasonable diligence, or for other

reasonable cause, according to the usual rules in such

cases. . . .’’ General Statutes § 52-270 (a). Unlike a

motion for a new trial, which is made within the confines of the original trial, a petition for a new trial is

a separate proceeding, ancillary to the original trial.13

Whether proceeding by motion for a new trial or by

petition for a new trial, a party seeking a new trial must

demonstrate a reasonable probability that a new trial

will have a different result.

A petition for a new trial under § 52-270 ‘‘is essentially

equitable in nature; the petitioner has the burden of

alleging and proving facts which would, in conformity

with our settled equitable construction of the statutes,

entitle him to a new trial on the grounds claimed.’’

(Internal quotation marks omitted.) Murphy v. Zoning

Board of Appeals, 86 Conn. App. 147, 152, 860 A.2d

764 (2004), cert. denied, 273 Conn. 910, 870 A.2d 1080

(2005). ‘‘Although General Statutes § 52-270 permits the

court to grant a new trial upon proof of reasonable

cause, the circumstances in which reasonable cause

may be found are limited. . . . The basic test of reasonable cause is whether a litigant, despite the exercise of

due diligence, has been deprived of a fair opportunity

to have a case heard on appeal.’’ (Citation omitted;

emphasis original; internal quotation marks omitted.)

Jacobs v. Fazzano, 59 Conn. App. 716, 723, 757 A.2d

1215 (2000). ‘‘A petition will never be granted except

upon substantial grounds.’’ (Internal quotation marks

omitted.) Murphy v. Zoning Board of Appeals, supra,

152.

‘‘A new trial may be granted to prevent injustice in
cases where the usual remedy by appeal does not lie

or where, if there is an adequate remedy by appeal, the

party has been prevented from pursuing it by fraud,

mistake or accident.’’ (Internal quotation marks omitted.) Fitzpatrick v. Hall-Brooke Foundation, Inc., 72

Conn. App. 692, 698, 807 A.2d 480, cert. denied, 262

Conn. 914, 811 A.2d 1291 (2002). A petition for a new

trial ‘‘does not furnish a substitute for, or an alternative

to, an ordinary appeal but applies only when no other

remedy is adequate and when in equity and good conscience relief against a judgment should be granted.’’

(Internal quotation marks omitted.) Murphy v. Zoning

Board of Appeals, supra, 86 Conn. App. 152.

Nearly all of the grounds that the defendant asserts

in support of her petition for a new trial relate either

to the court’s denial of her motions for a continuance

or the court’s requiring that she produce her process

server to demonstrate that her trial subpoenas were

properly served before the court would considerissuing

capiases for nonappearing witnesses. The rulings that

were not the subject of separate appeals by the defendant to the Appellate Court were rulings that were—

or certainly could have been—addressed in the defendant’s September 29, 2013 appeal of the judgment of

dissolution. If the defendant had properly perfected

her eight consolidated appeals, she would have been

afforded appellate review of all of the rulings that she

now seeks to challenge in her petition for a new trial.

The defendant’s own failure to comply with the rules

and orders of the Appellate Court does not give rise to

a finding of ‘‘reasonable cause’’ for a new trial under

§ 52-270. See, e.g., Fitzpatrick v. Hall-Brooke Foundation, Inc., supra, 72 Conn. App. 699–700 (party who has

usual remedy of appeal, but who fails to comply with

rules of appellate procedure, will not be granted new

trial under § 52-270); see also Murphy v. Zoning Board

of Appeals, supra, 86 Conn. App. 153 (plaintiffs’ mistaken interpretation of appellate rules, which led to

failure to file petition for certification to appeal, did

not entitle them to new trial for ‘‘reasonable cause’’

under § 52-270).

The defendant’s status as a self-represented litigant

has no bearing on the court’s analysis. ‘‘[I]t is the established policy of the Connecticut courts to be solicitous

of pro se litigants and when it does not interfere with the

rights of other parties to construe the rules of practice

liberally in favor of the pro se party. . . . Although we

allow pro se litigants some latitude, the right of selfrepresentation provides no attendant license not to

comply with relevant rules of procedural and substantive law.’’ (Internal quotation marks omitted.) Murphy

v. Zoning Board of Appeals, supra, 86 Conn. App. 157

n.7. Like any other litigant, the defendant was required

to comply with the appellate rules and the express

orders of the Appellate Court in order to obtain appellate review of the dissolution judgment and the related
court orders. Her failure to do so does not entitle her

to a new trial under § 52-270.

IV

The defendant also seeks a new trial pursuant to § 52-

270 on the grounds of newly discovered evidence. Our

Supreme Court set forth the criteria for evaluating a

petition for a new trial based upon newly discovered

evidence in Asherman v. State, 202 Conn. 429, 434, 521

A.2d 578 (1987). ‘‘Underthe Asherman standard, a court

is justified in granting a petition for a new trial when

the petitioner demonstrates that the evidence offered

in support thereof: (1) is newly discovered such that it

could not have been discovered previously despite the

exercise of due diligence; (2) would be material to the

issues on a new trial; (3) is not cumulative; and (4) is

likely to produce a different result in the event of a new

trial.’’ Juma v. Aomo, Superior Court, judicial district

of Hartford, Docket No. FA-09-4046839-S (January 24,

2012) (Olear, J.). In addition to considering these specific criteria, ‘‘a court’s decision on the petition should

be guided by the more general principle that a new trial

will be warranted on the basis of newly discovered

evidence only where an injustice was done and whether

it is probable that on a new trial a different result would

be reached.’’ (Internal quotation marks omitted.) Shabazz v. State, 259 Conn. 811, 821, 792 A.2d 797 (2002).

‘‘This strict standard is meant to effectuate the underlying equitable principle that once a judgment is rendered

it is to be considered final, and should not be disturbed

by posttrial motions except for a compelling reason.’’

Asherman v. State, supra, 434.

The defendant claims that the information regarding

her former attorney’s service of a trial subpoena on

Wells Fargo Bank is newly discovered evidence upon

which a new trial should be granted. She makes the

same argument with respect to the information concerning various litigation matters involving her process

server. The court does not agree.Even if the information

offered were presumed to be ‘‘evidence,’’ the information was either already known or could have readily

been discovered through due diligence in advance of

the trial. The defendant’s former attorney, who was

counsel of record until his motion to withdraw was

granted during the trial, knew whether or not he had

served a trial subpoena on Wells Fargo Bank. The litigation matters involving the defendant’s process server

were listed on the Judicial Branch’s public website and

available to anyone who conducted a ‘‘party name’’

search. This ‘‘evidence,’’ such as it is, could have been

discovered before the dissolution trial began, and it

does not warrant a new trial under § 52-270.

V

The court finds no reason in equity or good conscience to support the defendant’s petition for a new
trial. As our Appellate Court observed in Murphy, ‘‘[i]n

considering a petition, trial judges must give first consideration to the proposition that there must be an

end to litigation.’’ (Internal quotation marks omitted.)

Murphy v. Zoning Board of Appeals, supra, 86 Conn.

App. 152. The time has come for this dissolution action

to end.

ACCORDINGLY, for the reasons set forth above, the

court denies the defendant’s motion to open the dissolution judgment and her petition for a new trial.

* Affirmed. Baker v. Whitnum-Baker, 161 Conn. App. 227, A.3d

(2015).

1 The defendant’s pleading was styled, ‘‘Defendant’s Motion to

Open/Petition for New Trial’’ (#240.01).

2 Transcript dated August 12, 2013. Judge White did not order that the

trial take place on September 21, 2013.

3 The defendant said that she did not want or need her attorney, Andre

Cayo, Esq., to represent her. Judge Munro asked Attorney Cayo to remain

in the courtroom and act as standby counsel. The defendant later asked that

Attorney Cayo leave, and the court granted his motion to withdraw (#180.01).

4 The appeal was entered in the Superior Court file as #226.00 and #237.00.

It was docketed in the Appellate Court as AC 36132.

5 This appeal was entered in the Superior Court file as #225.00 and #236.00.

It was docketed in the Appellate Court as AC 36131.

6 This appeal was entered in the Superior Court file as #227.00. The appeal

of the court’s ruling on #192.00 was also entered in the court file as #235.00.

The appeal was docketed in the Appellate Court as AC 36133.

7 This appeal was entered in the Superior Court file as #229.00 and #234.00.

The appeal was docketed in the Appellate Court as AC 36134.

8 This appeal was entered in the Superior Court file as #230.00. The appeal

was docketed in the Appellate Court as AC 36135.

9 This appeal was entered in the Superior Court file as #231.00. The appeal

was docketed in the Appellate Court as AC 36136.

10 This appeal was entered in the Superior Court file as #232.00. The appeal

was docketed in the Appellate Court as AC 36137.

11 This appeal was entered in the Superior Court file as #228.00 and #233.00.

The appeal was docketed in the Appellate Court as AC 36138.

12 As noted above, the court permitted the defendant to supplement the

record from the January 21, 2014 evidentiary hearing with information relating to her process serverfrom the Judicial Branch website on March 31, 2014.

13 A motion for a new trial must be brought within ten days of the verdict

(in a jury trial) or the judgment (in a court trial). Practice Book §§ 16-35

and 17-4A. A petition for a new trial must be brought within three years of

the judgment. General Statutes § 52-582.