Hill v. Hill

644 A.2d 951, 35 Conn. App. 160, 1994 Conn. App. LEXIS 274
CourtConnecticut Appellate Court
DecidedJuly 19, 1994
Docket11464; 12066
StatusPublished
Cited by17 cases

This text of 644 A.2d 951 (Hill v. Hill) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hill v. Hill, 644 A.2d 951, 35 Conn. App. 160, 1994 Conn. App. LEXIS 274 (Colo. Ct. App. 1994).

Opinion

O’Connell, J.

This case involves two appeals from the same marriage dissolution action. In appeal no. 11464, the plaintiff claims that (1) the procedures followed by the trial court deprived her of her right to due process of law under both the state and federal constitutions, and (2) the trial court abused its discretion in ordering the trial to begin, in dividing assets without current financial affidavits, in awarding joint custody without a custody study, in conducting ex parte proceedings off the record, and in failing to protect the plaintiff from misconduct by her attorney. In appeal no. 12066, the defendant claims that a postjudgment order pertaining to a motor vehicle violated the automatic stay.

I

The central issue in the plaintiff’s appeal involves the trial court’s denial of her request for a continuance. The following facts are necessary for the disposition of this issue. On June 4, 1991, the plaintiff instituted an action seeking dissolution of the parties’ fifteen year marriage, sole custody of their four minor children, child support, alimony, division of assets and sole ownership of the marital residence. On November 28, 1991, Allen S. Mall became the third attorney to rep[162]*162resent the plaintiff. By agreement of the parties, the trial of the case was scheduled for January 3, 1992. Because of a subsequent order requiring both parties to attend a January 30,1992 conference with a family relations officer, the trial was rescheduled for March 10,1992. On March 3,1992, the plaintiffs counsel appeared in court seeking a continuance “to at least May, if not June.” The reasons proffered for the continuance were to obtain discovery of certain of the defendant’s American Express records and because the plaintiff disagreed with the family relations officer’s refusal to complete a full custody study. In response, the trial court, Bailen, J., scheduled a hearing for the following day to resolve the question of whether a full custody study was necessary and would thus warrant granting the plaintiff’s request for a continuance.

During the March 4 hearing, Judge Bailen heard testimony from the plaintiff and a family relations officer and thereafter denied the continuance on the basis of the family relations officer’s recommendation that a full custody report was not necessary. There is, however, disagreement as to what Judge Bailen intended would take place on March 10. When the parties appeared on March 10, Judge Bailen and defense counsel expected that the trial was to commence, but Mall protested that he understood that the trial would not go forward until he had received the American Express information. Accordingly, Mall made it clear that he was not ready to commence trial. Judge Bailen told Mall that he could present evidence concerning the American Express records at a later time but that he must proceed to trial that day on other issues. Mall then asked Judge Bailen if he could at least have until the afternoon to prepare for trial. Judge Bailen granted the request and then referred the case to Judge Karazin for trial to begin later that same day.

[163]*163At the start of trial that afternoon, Mall informed Judge Karazin that the case was not ready for trial because Judge Ballen’s order to commence the trial was conditioned on the plaintiffs receipt of the American Express records. The defendant disagreed and Judge Karazin recessed so that he personally could ask Judge Bailen the substance of his order. Thereafter, Judge Karazin reconvened court and stated that Judge Bailen had ordered the trial to begin that day as long as the plaintiff could present her evidence concerning the American Express records when they arrived. Despite this concession, Mall informed the court that he was not prepared to start the trial and that he did not think it prudent to begin his case without his client, who was so upset about the morning’s proceedings that she had left the courthouse and would not return. After inquiry by Judge Karazin, Mall admitted that the presence of his client was not essential for him to go forward, and Judge Karazin told Mall to begin putting on evidence. A short colloquy between Mall and Judge Karazin ensued, which ended with Mali’s leaving the courthouse, despite several warnings from Judge Karazin that such behavior would have serious consequences. Immediately following Mall’s departure, defense counsel moved for a nonsuit, which was granted. Judge Karazin then heard the case on the defendant’s counterclaim and rendered judgment thereon. It is from that judgment that the plaintiff now appeals. Additional facts are set forth in the course of our discussion.

We commence our analysis by considering the plaintiff’s argument that the trial court improperly denied her request for a continuance and compounded the impropriety by proceeding to judgment in the absence of both the plaintiff and her counsel. “[T]he matter of a continuance is traditionally within the discretion of the trial judge, which will not be disturbed absent a clear abuse. ... It must be shown that the trial judge [164]*164acted arbitrarily and substantially impaired defendant’s ability to defend himself, before an appellate court will conclude that the trial judge abused his discretion. The test is a stringent one.” (Citations omitted; internal quotation marks omitted.) State v. Beckenbach, 198 Conn. 43, 47, 501 A.2d 752 (1985). Not every denial of a request for more time violates due process. Avery v. Alabama, 308 U.S. 444, 60 S. Ct. 321, 84 L. Ed. 377 (1940); State v. Bethea, 167 Conn. 80, 84, 355 A.2d 6 (1974).

The Supreme Court has been “especially hesitant to find abuse of discretion where the court has denied a motion for continuance made on the day of trial.” Thode v. Thode, 190 Conn. 694, 697, 462 A.2d 4 (1983); Vossbrinck v. Vossbrinck, 194 Conn. 229, 232, 478 A.2d 1011 (1984), cert. denied, 471 U.S. 1020, 105 S. Ct. 2048, 85 L. Ed. 2d 311 (1985); Kinney v. Kinney, 5 Conn. App. 484, 485, 500 A.2d 569 (1985), cert. denied, 199 Conn. 804, 506 A.2d 146, cert. denied, 497 U.S. 818,107 S. Ct. 78, 93 L. Ed. 2d 33 (1986). “There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841,11L. Ed. 2d 921 (1964); State v. McKnight, 191 Conn. 564, 576, 469 A.2d 397 (1983); State v. Jeustiniano, 172 Conn. 275, 285, 374 A.2d 209 (1977).

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Bluebook (online)
644 A.2d 951, 35 Conn. App. 160, 1994 Conn. App. LEXIS 274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hill-v-hill-connappct-1994.