de Repentigny v. de Repentigny

• Decision Date: 01 June 2010
• Docket Number: No. 30548.,30548.
• Citation: 121 Conn.App. 451,995 A.2d 117
• Court: Connecticut Court of Appeals
• Parties: Iwona DE REPENTIGNY v. Michael G. DE REPENTIGNY.

995 A.2d 117

121 Conn.App. 451

Iwona DE REPENTIGNY v. Michael G. DE REPENTIGNY.

No. 30548.

Appellate Court of Connecticut.

Argued December 1, 2009.

Decided June 1, 2010.

COPYRIGHT MATERIAL OMITTED

William F. Gallagher, New Haven, with whom, on the brief, was Todd R. Bainer, for the appellant (plaintiff).

Michael G. de Repentigny, pro se, the appellee (defendant).

HARPER, LAVINE and PELLEGRINO, Js.

HARPER, J.

This appeal stems from the judgment dissolving the marriage of the plaintiff, Iwona de Repentigny, and the defendant, Michael G. de Repentigny. On appeal, the plaintiff claims that (1) the court acted improperly by allowing a lengthy period of time to elapse between the first two days of trial and the last two days of trial, (2) the court improperly refused to permit closing arguments to be made orally, (3) the court improperly failed to find the defendant in contempt for allegedly violating automatic orders and (4) the court's financial orders were unreasonable under the circumstances. We affirm the judgment of the trial court. We address each of the plaintiff's claims in turn, and set forth facts and proceedings that are relevant to the disposition of this appeal as necessary.

I

The plaintiff first claims that the court acted improperly by allowing a lengthy period of time to elapse between the first two days of trial and the last two days of trial. We disagree.

The parties' divorce trial began on February 13, 2008. On that day, the plaintiff, through her counsel, began to present her case and called two witnesses. The first witness was a woman with whom the court found that the defendant had had an ongoing sexual affair during the parties' marriage. Next, the plaintiff's counsel called the plaintiff as a witness. The court recessed before the defendant's counsel could finish her cross-examination of the plaintiff. The following day, February 14, 2008, the defendant's counsel continued her cross-examination of the plaintiff. The plaintiff's counsel began redirect examination but he was unable to finish his examination before the end of the day. The court discussed scheduling the next date for the trial with both parties. The date of March 25, 2008, was initially considered; however, the court stated that it was unsure that this date would allow for enough time to resolve several procedural and discovery issues. The clerk of the court then suggested April 30, 2008, and June 25, 2008, as potential dates, to which the plaintiff's counsel responded by asking, "Do we have any chance of getting two dates back to back?" Upon the request of the plaintiff's counsel that the trial be rescheduled to a time when two consecutive days would be available, the court scheduled the trial to resume June 25, 2008, noting that June 26 and 27 would also be available if more time was required.

At the time of the court's ruling, neither the plaintiff nor her counsel made any objection to waiting until June 25, 2008, to continue the trial. No objection was filed with the court between February 14 and June 25, 2008. The trial resumed on the morning of June 25, 2008. At this time, the plaintiff's counsel made an oral motion for a mistrial. The plaintiff's counsel argued that because he had already presented a major part of the plaintiff's case on the first two days of trial, the defendant, having had several months to "look at the plaintiff's case and prepare for trial," was at an "advantage." The court orally denied the motion for a mistrial. The plaintiff's counsel raised the objection once more that day, during the defendant's counsel's recross-examination of the plaintiff. In response, the court made the following statement: "You're not going to get a mistrial based on a continuance. Unfortunately, many family trials span a lot more time than the judges wish."

Although the plaintiff, in her brief, concedes that "there is no Connecticut statute or rule which per se prohibits such an inordinate delay in the conclusion of a trial"; (emphasis in original); she nevertheless claims on appeal that the delay in the middle of her divorce trial violated her right, under article first, § 10, of our state constitution to have "justice administered without sale, denial or delay." "The matter of a continuance is traditionally within the discretion of the trial judge which will not be disturbed absent a clear abuse." (Internal quotation marks omitted.) State v. Williams, 200 Conn. 310, 320, 511 A.2d 1000 (1986). Although the plaintiff attempts to frame the issue of the length of the continuance as a constitutional claim, in Williams our Supreme Court held that not every determination regarding a continuance violates due process. Thus, the propriety of a continuance "is to be found in the circumstances present in every case." Id. To establish an abuse of discretion as to a court's determination in regard to a continuance, the plaintiff must show that her ability to present her case was prejudiced demonstrably by the length of the continuance. See State v. Day, 233 Conn. 813, 847, 661 A.2d 539 (1995).

As the defendant notes in his brief, the court proposed earlier dates on which to reconvene the trial, but it was the plaintiff's counsel who expressed a preference for scheduling the trial at a time when two consecutive days were available. Taking the plaintiff's preference into consideration, the court accommodated her and scheduled the next day of the trial on a date when three consecutive days were available if needed. Although the plaintiff has claimed that the defendant was given a tactical advantage, she has not indicated any specific instances of prejudice resulting from the length of the continuance. Accordingly, we hold that the court did not abuse its discretion.

II

The court denied the request of the plaintiff's counsel to make an oral closing argument. On appeal, the plaintiff claims that the court's refusal was in violation of our rules of practice. We disagree.

In her brief submitted to this court, the plaintiff notes that Practice Book § 15-5(a)(4)¹ states that "the plaintiff shall be entitled to make the opening and final closing arguments." The plaintiff, however, has neglected to include the introductory language of the rule, which states: "Unless the judicial authority for cause permits otherwise, the parties shall proceed with the trial and argument in the following order...." (Emphasis added.) Practice Book § 15-5(a). Thus, when the previously discussed language is read together, Practice Book § 15-5(a) actually reads as follows: "Unless the judicial authority for cause permits otherwise, the parties shall proceed with the trial and argument in the following order ... (4) The plaintiff shall be entitled to make the opening and final closing arguments...."

The interpretation of rules of practice and statutes is a question of law subject to plenary review. Tocco v. Wesleyan University, 112 Conn.App. 28, 31, 961 A.2d 1009 (2009). Subdivisions (1) through (5) of Practice Book § 15-5(a) prescribe a certain procedure to be followed in civil trials and family matters. The clear import of the introductory language is that the court may depart from this prescribed trial procedure "for cause...." Practice Book § 15-5(a). Therefore, in civil and family cases, a trial court may, for cause, elect to accept legal briefs in lieu of oral closing arguments.

We have held previously that, when considering whether there was cause for a court to change the order of arguments prescribed in Practice Book § 15-5(a), we review the decision of the court under the abuse of discretion standard. In Dinan v. Marchand, 91 Conn.App. 492, 881 A.2d 503 (2005), aff'd, 279 Conn. 558, 903 A.2d 201 (2006), this court held that a plaintiff "bears a heavy burden in demonstrating that the court abused its broad discretion in its ordering of closing arguments.... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court's decision and every reasonable presumption is given in favor of its correctness.... We will reverse the trial court's ruling only if it could not reasonably conclude as it did." (Internal quotation marks omitted.) Id., at 507, 881 A.2d 503. In light of this precedent, and given the fact that the departure from procedure involves the same rule of practice contemplated by the court in Dinan, we conclude that our review of whether the court had cause to accept briefs in lieu of oral argument also should be made using the abuse of discretion standard.

The parties met on July 7, 2008, to discuss several posttrial matters. The plaintiff's trial counsel informed the court that he wanted to make oral closing arguments. The court offered to allow counsel to make a closing argument on July 14, 2008, the date on which the court had ordered posttrial briefs to be submitted. The defendant's trial counsel then indicated to the court that she believed that closing arguments, in addition to the posttrial briefs, would be cumulative and unnecessary. The court indicated its preference to conclude the trial expeditiously, given the lengthy period of time that had elapsed between the first two days of trial and the final two days of trial, and expressed concern about unnecessarily prolonging the process in order to find a date on which counsel for both sides would be available to appear. Given our determination that the trial court's decision is to be afforded every reasonable presumption in favor of its correctness, we find that any of the aforementioned reasons reasonably justified the court's decision not to allow oral closing arguments and instead to accept posttrial briefs. Accordingly, we conclude that the court did not abuse its discretion in accepting briefs in lieu of oral closing arguments.

III

The plaintiff next claims that the court improperly declined to hold the defendant in contempt for violating the automatic order provisions of Practice Book § 25-5. Specifically, the plaintiff...