O'Brien v. Davis

894 A.2d 1072, 49 Conn. Supp. 474, 2005 Conn. Super. LEXIS 2771
CourtConnecticut Superior Court
DecidedSeptember 29, 2005
DocketFile No. FA-04-4000138S
StatusPublished

This text of 894 A.2d 1072 (O'Brien v. Davis) is published on Counsel Stack Legal Research, covering Connecticut Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'Brien v. Davis, 894 A.2d 1072, 49 Conn. Supp. 474, 2005 Conn. Super. LEXIS 2771 (Colo. Ct. App. 2005).

Opinion

TIERNEY, J.

What happens when a court misspeaks in an oral decision rendered from the bench immediately after the conclusion of the hearing? No Connecticut decision gives the answer to this seemingly common occurrence. Other more well known authorities have, however, addressed this issue.

“I meant what I said and I said what I meant.” T. Geisel, Horton Hatches the Egg (Random House 1940) p. 16.

“ ‘When I use a word,’ ” Humpty Dumpty said, in rather a scornful tone, “ ‘it means just what I choose it to mean — neither more nor less.’ ” (Emphasis in original.) L. Carroll, Through the Looking-Glass (Random House ed. 1946) p. 94. The foregoing passage was based on a discussion between Alice and Humpty Dumpty on the meaning of the well known nursery rhyme placing Humpty Dumpty on a wall, fall and all. Doe v. Statewide Grievance Committee, 240 Conn. 671, 688 n.5, 694 A.2d 1218 (1997).

I

FACTS

The parties in the present case were long-standing residents of the state of New York. They were married on May 28, 1978, and have two children who continue to reside in New York. Florence Davis, the defendant wife, continues to reside in New York. The parties have [476]*476been involved for some time in family negotiations, each represented by New York counsel.

On June 27, 2004, Kevin O’Brien, the plaintiff, filed a writ of summons and complaint in the Superior Court for the judicial district of Stamford-Norwalk at Stamford seeking “a dissolution of marriage, equitable distribution of the parties’ property, joint custody of the parties’ minor child and such other and further relief as to this Court may seem just, equitable and proper.” The action was returnable on July 20, 2004. The clerk of the court assigned a case management date of October 25, 2004. The summons stated that the plaintiffs address was in Stamford and that the defendant’s address was the parties’ marital home in Brooklyn, New York. The plaintiff alleged jurisdiction in the alternative in paragraph two: “Plaintiff, for at least twelve months next preceding the date of the filing of this complaint or the entry of judgment, has been a resident of this state.” General Statutes § 46b-44 (c) (1).

The plaintiff then obtained an order of notice on June 29, 2004 requiring service on the defendant in Brooklyn by certified mail. No marshal’s return of service for this order of notice is in the file pertaining to the present case. The plaintiff obtained a subsequent order of notice on September 13, 2004, requiring that service be made on the defendant by a proper New York officer in the state of New York. An affidavit of service of summons and complaint dated September 20, 2004, is in the case file indicating that the defendant was served in hand at the marital home in Brooklyn on September 18, 2004. The defendant was never served in Connecticut. The defendant appeared neither pro se nor by counsel in the present action until November 9, 2004. The defendant appeared by counsel of record on November 9, 2004, and filed a motion to open the judgment (postjudgment) dated November 9,2004. The motion stated: “The defen[477]*477dant-wife respectfully requests that the judgment of dissolution entered by the Court (Harrigan, J.) in her absence and by default on October 21, 2004 be opened and set aside due to the following . . . .” The court, Harrigan, J., had granted the plaintiffs relief in the case-in-chief and entered only one order on October 21,2004, a decree dissolving the marriage on the ground of irretrievable breakdown.

Among the several grounds that the defendant alleged in her motion to open were lack of subject matter jurisdiction by the Superior Court for the judicial district of Stamford-Norwalk at Stamford because the plaintiff did not establish his residency in Connecticut until the summer of 2004. She also alleged that his Connecticut counsel knew that both parties were represented in New York by counsel and failed to notify her New York attorney of the October 21, 2004 uncontested dissolution hearing. She further alleged that both parties’ New York counsel attended settlement meetings on October 14 and 15, 2004, and that neither she nor her New York counsel was notified of the scheduled October 21, 2004 uncontested hearing. She further alleged that the judgment was entered before the October 25, 2004 case management date and that notice was neither given to her by the Superior Court clerk of the October 21, 2004 hearing, nor was notice given to her by the plaintiff or his counsel of the October 21,2004 hearing. She alleged yet further that no case management agreement was filed and that the plaintiff failed to file a case management agreement form to schedule an uncontested hearing. Finally, the defendant alleged that the case management conditions had not been complied with by October 21, 2004, as established by Practice Book § 25-50, and that the plaintiffs testimony at the October 21,2004 hearing regarding residency was a misrepresentation.

[478]*478On February 7, 2005, the court, Tierney, J., conducted an evidentiary hearing on the defendant’s motion to open dated November 9, 2004. Both parties testified, as well as their respective New York counsel, who had been actively representing both parties from July, 2003, through February, 2005. Both the plaintiff and the defendant are lawyers by profession. Both Connecticut counsel then furnished this court with legal arguments immediately after the presentation of evidence. This court then rendered an oral decision from the bench at the conclusion of counsels’ arguments. The court decision is contained in the transcript of the present case. This court signed the transcript on May 20, 2005, and the signed transcript of the February 7, 2005 hearing and order is in the case file.

In the oral decision, this comí noted that both parties had failed to comply with the parenting education program either as of October 21, 2004, or February 7, 2005. The parenting education program is mandated first by General Statutes § 46b-69b, second, by the automatic orders under Practice Book § 25-5 (6); (“[t]he parties, if they share a minor child or children, shall participate in the parenting education program within sixty days of the return date or within sixty days of the filing of the application”); and, third, by this court’s parenting education order in the file dated July 13, 2004. Thereafter, the court granted the motion to open dated November 9, 2004. The court stated: “Motion to open granted if you fail to comply with the parenting education program.” This inartful use of the word “if’ instead of “since” is the cause of the present controversy and the discussion of the issue at hand: what happens when a court misspeaks in an oral decision rendered from the bench immediately after the conclusion of the hearing?

At the conclusion of the February 7,2005 proceedings after the motion to open was granted, the court stated: “The matter is assigned to the regular docket. We need [479]*479a status conference. Please confer as to the date for the status conference so we can code in for a status conference.” A status conference was then assigned for March, 2005. There was no clerk in the courtroom on February 7, 2005, at the time the court rendered its oral decision.

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Bluebook (online)
894 A.2d 1072, 49 Conn. Supp. 474, 2005 Conn. Super. LEXIS 2771, Counsel Stack Legal Research, https://law.counselstack.com/opinion/obrien-v-davis-connsuperct-2005.