Ridgeway v. Ridgeway

• Decision Date: 13 May 1980
• Citation: 180 Conn. 533,429 A.2d 801
• Court: Connecticut Supreme Court
• Parties: Kathleen RIDGEWAY v. Ronald RIDGEWAY.

Page 801

429 A.2d 801

180 Conn. 533

Kathleen RIDGEWAY v. Ronald RIDGEWAY.

Supreme Court of Connecticut.

Argued Feb. 7, 1980.

Decision Released May 13, 1980.

Arthur M. Field, Fairfield, for appellant (plaintiff).

David P. Ball, Danbury, for appellee (defendant).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, PETERS and HEALEY, JJ. HEALEY, Associate Justice.

This appeal is from the judgment rendered in a contested marital dissolution case and challenges the entry of certain orders in that proceeding. ¹ The plaintiff, Kathleen Ridgeway, brought an action against the defendant, Ronald Ridgeway, for dissolution of their marriage, alleging that it had broken down irretrievably. She also sought custody of and support for the three minor children, alimony, the transfer to her of the jointly held family home and counsel fees. The defendant admitted the allegations of the plaintiff's complaint and filed a cross complaint, also based on irretrievable breakdown, in which he sought a dissolution, custody of the three minor children and a conveyance of the plaintiff's interest in the family home. Because the wife sought a continuance and did not wish to go forward on the complaint, the court went forward on the cross complaint. ² The case was heard on June 27, 1978, as a contested matter. The court rendered judgment on the cross complaint dissolving the marriage and awarded custody of the children to the defendant with visitation to the plaintiff each Sunday from 1 p. m. to 5 p. m. "or at such reasonable time as the parties may agree." The court also referred to the family relations division for investigation and report the matter of more extensive visitation, including overnight visitation. Alimony of one dollar per year was ordered, and the plaintiff was ordered to transfer her interest in the family home to the defendant and, contemporaneously therewith, the husband was ordered to deliver to the plaintiff a promissory note and a mortgage on that real estate to secure the note in the principal amount of $30,000 with interest to be payable monthly at the rate of 6 percent per annum. The principal was to be payable on January 26, 1988, ³ or at such time that the property was sold or upon the death of the husband, whichever occurred first. The defendant was given the option of paying off the note and mortgage prior to the occurrence of any of these events. The defendant was also ordered to pay the sum of $400 toward the plaintiff's counsel fees as well as up to $150 for the fee of a physician, Dr. Gianetti, who testified for the plaintiff. The plaintiff has appealed and raises several claims, which we address individually. ⁴

At the outset we take up the plaintiff's claims that the court erred in denying her motion for a continuance on June 27, 1978, and proceeding with the trial on that day. Essentially, she claims the court erred in ruling that she was competent to proceed and to participate properly in the trial. The case had been marked ready for trial in January, 1978, April, 1978, and again in June, 1978, a week before the trial was actually held. Each time it was reached for trial, the plaintiff's attorney requested a continuance for the same reason, the incompetence of his client. The week before the trial, the trial court informed defense counsel that, if a further continuance was sought for that reason, it was its opinion that the defendant was entitled to have that issue decided. On June 27, 1978, the plaintiff's counsel orally moved for a continuance, to which defense counsel objected, indicating that he wished to proceed. At that time, plaintiff's counsel had in attendance Dr. David Gianetti, ⁵ a psychiatrist, who had treated the plaintiff. Gianetti was examined and cross-examined, and the court also inquired of him. He testified that he first saw the plaintiff in December, 1976, and had last seen her about two months prior to the trial; that she had been an inpatient at a city hospital for about six weeks ending in April, 1977; that she suffers from "a rather severe thought disorder, as well as emotional disorder," that primarily concern the fear of "her life being monitored by those who are unknown to her"; and that her fear of "being monitored" causes her at times to discuss the worthlessness of life under such conditions both for herself and her children, whom she believes are also being "monitored." Gianetti also testified that her preoccupation with "monitoring" impairs her judgment and affects her ability to participate with her attorney to protect her interests in the proceedings.

Gianetti acknowledged, however, that he was aware that the plaintiff, since her discharge as an inpatient, had been and still was taking courses successfully at Sacred Heart University in Bridgeport in math, history and political science; that she had also attended the University of Bridgeport; that she held a part-time job in a supermarket for about six months prior to the trial; and that she had applied for and passed a civil service examination and would begin a full-time position with the social security administration on July 3, 1978. These considerations did not alter his "impaired judgment" diagnosis. Gianetti believed that when the plaintiff instituted the divorce proceedings and at the time of the hearing she knew what she was doing and that the proceeding would end in the dissolution of her marriage, although he believed that she did not understand all the consequences of the proceeding. At the trial itself, the plaintiff testified that she knew the nature of the proceeding and that the judge would make certain decisions concerning the parties' marriage, their property and the custody of their children.

This court will only find error in the grant or denial of a motion for a continuance "if a clear abuse of the trial court's discretion is shown. Rusch v. Cox, 130 Conn. 26, 32, 31 A.2d 457 (1943); State v. McLaughlin, 126 Conn. 257, 260, 10 A.2d 758; Allen v. Chase, 81 Conn. 474, 477, 71 A. 367." State v. Best, 171 Conn. 487, 492, 370 A.2d 1035 (1976). Every reasonable presumption in favor of the proper exercise of the trial court's discretion will be made. See State v. Jeustiniano, 172 Conn. 275, 285, 374 A.2d 209 (1977); State v. Manning, 162 Conn. 112, 121, 291 A.2d 750 (1971). As a general rule, a somewhat stronger showing must be made to support a motion for a continuance where the moving party has obtained prior continuances, particularly where the claim is premised on the ill health of a party. See annot., "Continuance of Civil Case Because of Illness or Death of Party," 68 A.L.R.2d 470, 490 et seq. The record discloses that the court held a thorough hearing on the plaintiff's claim and participated by inquiry to assist in resolving the issue. The trial court certainly was not bound to accept the expert's testimony insofar as it tended to support the plaintiff's claim. Stewart v. Stewart, 177 Conn. 401, 402-403, 418 A.2d 62 (1979). See Themper v. Themper, 132 Conn. 547, 549, 45 A.2d 826 (1946).

Moreover, even one whose thought processes are impaired to the extent of being insane has a legal capacity to sue or be sued, provided he has not been formally adjudicated an incompetent and placed under the guardianship of another. See Kirwan v. State, 168 Conn. 498, 502, 363 A.2d 56 (1975); 41 Am.Jur.2d, Incompetent Persons § 115; annot., 71 A.L.R.2d 1247 § 2. The court may, as the circumstances warrant, appoint a guardian ad litem to ensure that the interests of the person who may be incompetent are adequately protected. See Kirwan v. State, supra; General Statutes § 45-54.

In this case, the court concluded, as it was entitled to, that the plaintiff was competent. Furthermore, the plaintiff was represented by counsel of her own choosing. Nothing in the record indicates that her counsel failed adequately to protect her interests in the matter. Cf. Gentry v. Warden, 167 Conn. 639, 645, 356 A.2d 902 (1975). While there is no mechanical test for determining when the denial of a continuance is so arbitrary as to violate due process or amount to an abuse of discretion, the record before us amply discloses that the court's decision in this regard was fully justified. See Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964); State v. Jeustiniano, 172 Conn. 275, 285, 374 A.2d 209 (1977).

While our decision on this ground makes it unnecessary for us to address the plaintiff's claim that the court erred in failing to appoint a guardian ad litem to protect her interests, we briefly address the claim that the court erred in failing to appoint a guardian ad litem for the benefit of the minor children. Not only was no motion made for such an appointment, there was also no evidence indicating that the interests of the minor children would not otherwise be adequately protected. Under General Statutes § 46b-54, the court "may" appoint counsel to protect the interests of a minor child in a dissolution action if it deems it to be in the best interests of the children. The term "may" imports discretion; see Shulman v. Zoning Board of Appeals, 154 Conn. 426, 428, 226 A.2d 380 (1967); and there is no basis for concluding that the trial court abused its exercise of discretion in this respect.

The plaintiff also attacks the court's award of custody of the minor children to the defendant and the visitation rights granted to her. The defendant had temporary custody of the children since the plaintiff left the family home in December, 1976 until the dissolution decree was rendered some eighteen months later. To make provision for the care and supervision of the children while the defendant was working, the defendant's parents began to reside in the family home each week from Monday through Friday. The defendant, who was a carpentry foreman, added two bedrooms and another bathroom to the three bedroom raised ranch home to accommodate his parents. The children and grandparents got along well. Prior...