Smith-Lawler v. Lawler

• Decision Date: 05 September 2006
• Docket Number: No. 26952.,26952.
• Citation: 904 A.2d 1235,97 Conn.App. 376
• Parties: Clara SMITH-LAWLER v. John A. LAWLER, Jr.
• Court: Connecticut Court of Appeals

904 A.2d 1235

97 Conn.App. 376

Clara SMITH-LAWLER v. John A. LAWLER, Jr.

No. 26952.

Appellate Court of Connecticut.

Argued May 26, 2006.

Decided September 5, 2006.

John A. Lawler, Jr., pro se, the appellant (defendant).

Campbell D. Barrett, with whom, on the brief, were C. Michael Budlong, Hartford, and Kevin W. Hadfield, certified legal intern, for the appellee (plaintiff).

FLYNN, C.J., and McLACHLAN and WEST, Js.

McLACHLAN, J.

The defendant, John A. Lawler, Jr., appeals pro se from the denial of his motion to open and to vacate pendente lite orders that granted exclusive possession of the marital home to the plaintiff, Clara Smith-Lawler, and restrained him from harassing or molesting the plaintiff or her family in person or by telephone. The defendant claims that the trial court improperly denied his motion because (1) he was not given reasonable notice that the plaintiff intended to proceed with her pendente lite motions at the short calendar scheduled for July 25, 2005, and (2) the court was biased against pro se litigants. The plaintiff moved to dismiss the defendant's appeal as moot because the court, Hon. Lawrence C. Klaczak, judge trial referee, dissolved the marriage of the parties on March 21, 2006, incorporating into its judgment a marital settlement agreement. We agree that the appeal is moot and grant the plaintiff's motion to dismiss the appeal.

The following facts and procedural history are relevant to the disposition of the defendant's appeal. The plaintiff filed the dissolution of marriage action on June 22, 2005. At the time the defendant was served with a copy of the complaint, he also was served with copies of the pendente lite motions for exclusive possession of the marital home and for a restraining order. Both of the motions were granted by the court, White, J., at a hearing held on July 25, 2005. Counsel for the plaintiff was present in court, but the defendant did not appear.

The defendant filed a pro se appearance on August 16, 2005. On August 18, 2005, he filed a motion to open and to vacate the restraining order and the order awarding exclusive possession of the marital home to the plaintiff. A hearing was held on the defendant's motion on September 6, 2005. Counsel for the plaintiff and the defendant were present. The court denied the motion, and this appeal followed.

The plaintiff filed a motion to dismiss the defendant's appeal on October 3, 2005, claiming that the appeal was not brought from an appealable interlocutory order. This court denied the motion to dismiss on January 11, 2006, and sua sponte ordered the parties to address the final judgment issue in the plaintiff's brief and the defendant's reply brief.¹ On March 21, 2006, the parties' marriage was dissolved, and the judgment of dissolution incorporated the marital settlement agreement. On May 10, 2006, the plaintiff filed a motion to dismiss the defendant's appeal as moot, which the defendant timely opposed. At oral argument before this court, the parties addressed the issue of mootness and the claims on appeal.

"Mootness is a threshold issue that implicates subject matter jurisdiction, which imposes a duty on the court to dismiss a case if the court can no longer grant practical relief to the parties.... Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties.... [T]he existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.... In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or defendant in any way." (Citations omitted; internal quotation marks omitted.) New Image Contractors, LLC v. Village at Mariner's Point Ltd. Partnership, 86 Conn.App. 692, 698, 862 A.2d 832 (2004).

Here, the defendant has appealed from the court's denial of his motion to open and to vacate pendente lite orders that granted the plaintiff exclusive possession of the marital home and restrained the defendant from harassing or molesting the plaintiff or her family in person or by telephone. "[T]he nature of a pendente lite order, entered in the course of dissolution proceedings, is such that its duration is inherently limited because, once the final judgment of dissolution is rendered, the order ceases to exist." Sweeney v. Sweeney, 271 Conn. 193, 202, 856 A.2d 997 (2004). With respect to the temporary order addressed to possession of the marital home, no credible argument can be made that the order did not merge into the judgment of dissolution. The parties agreed that the plaintiff would retain the marital home. Moreover, the defendant, in his reply brief, conceded that this issue would become moot once the marriage was dissolved. Accordingly, we conclude that the appeal is moot with respect to the pendente lite order granting exclusive possession of the marital home to the plaintiff.

The defendant argues that the appeal should not be dismissed as moot, however, with respect to the pendente lite order restraining him from harassing or molesting the plaintiff or her family. He does not contest that the order was temporary or that it ceased to exist at the time the final judgment of dissolution was rendered. Nevertheless, the defendant claims that the imposition of the restraining order has caused and will continue to cause him damage.

"[U]nder this court's long-standing mootness jurisprudence ... despite developments during the pendency of an appeal that would otherwise render a claim moot, the court may retain jurisdiction when a litigant shows that there is a reasonable possibility that prejudicial collateral consequences will occur.... [T]o invoke successfully the collateral consequences doctrine, the litigant must show that there is a reasonable possibility that prejudicial collateral consequences will occur. Accordingly, the litigant must establish these consequences by more than mere conjecture, but need not demonstrate that these consequences are more probable than not. This standard provides the necessary limitations on justiciability underlying the mootness doctrine itself. Whe[n] there is no direct practical relief available from the reversal of the judgment ... the collateral consequences doctrine acts as a surrogate, calling for a determination whether a decision in the case can afford the litigant some practical relief in the future." (Internal quotation marks omitted.) Chimblo v. Monahan, 265 Conn. 650, 655-56, 829 A.2d 841 (2003).

The claimed collateral consequences of the restraining order, as set forth in the...