Osborne v. Osborne

482 A.2d 77, 2 Conn. App. 635, 1984 Conn. App. LEXIS 696
CourtConnecticut Appellate Court
DecidedSeptember 25, 1984
Docket2849
StatusPublished
Cited by45 cases

This text of 482 A.2d 77 (Osborne v. Osborne) 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
Osborne v. Osborne, 482 A.2d 77, 2 Conn. App. 635, 1984 Conn. App. LEXIS 696 (Colo. Ct. App. 1984).

Opinions

Dannehy, C.P.J.

This is an appeal1 from a judgment which ordered a conveyance of the parties’ marital property under General Statutes § 52-22. The parties were married on April 30, 1971. The plaintiff filed a complaint for the dissolution of her marriage to the defendant on the ground that the marriage had broken down irretrievably. One of the claims for relief specifically sought the conveyance of the defendant’s [637]*637one-half interest in the parties’ jointly owned premises. Subsequently, the defendant filed a cross complaint which also alleged that the marriage had broken down irretrievably and specified the same relief as claimed in the complaint, including a claim for the conveyance of the plaintiff’s one-half interest in the parties’ jointly-owned premises. In August, 1981, the defendant also filed discovery requests. The plaintiff did not object or comply. Upon the failure of the plaintiff to respond to these requests, the defendant moved for a nonsuit on October 8,1981. On November 16,1981, the trial court ordered “nonsuit to enter unless [the plaintiff] complied] within one week.” The plaintiff received written notice of that order from the clerk of the court. The plaintiff did not comply within one week and, in fact, she did not comply until shortly before trial. No further orders were made or notices mailed to the parties or motions filed until the plaintiff filed a motion to open the nonsuit during the trial, on May 24, 1982. In that motion, the plaintiff endeavored to show that the failure to complete discovery was inadvertent and that prior to trial the defendant was provided the information anyway and was not prejudiced. The plaintiff’s motion was denied and the trial referee refused to allow the plaintiff to proceed on her complaint. She was not allowed to introduce evidence to show that her father had contributed money toward the cost of constructing the jointly owned premises or that he claimed a life interest in the realty with the plaintiff’s mother. The parties subsequently stipulated that the marriage had broken down irretrievably and submitted an agreement concerning the custody of their minor child and its terms were later incorporated in the decree which was rendered on the cross complaint on June 29,1982. Neither the decree itself, nor the orders of custody, child support or alimony are involved in this appeal.

[638]*638In her appeal, the plaintiff argues that the trial referee erred “in ruling that a disciplinary nonsuit was entered, when in fact, a nonsuit or notice of the same to the referee or counsel was not sent, entered or recorded by the clerk.” A failure to comply with an order of the court is a ground for a nonsuit. Practice Book § 351; Stanley v. Hartford, 140 Conn. 643, 648, 103 A.2d 147 (1954). An order of nonsuit terminates an action when it is issued and no further proceedings are necessary. Stephenson, Conn. Civ. Proc. (2d Ed.) § 156. The ministerial failure of the clerk to enter judgment into the records does not affect the validity of a judgment of nonsuit. A judgment of nonsuit is a pro forma action of a clerk and “[t]he clerk of the court is no longer required to mail a copy of the nonsuit to the party against whom it is directed.” Stephenson, Conn. Civ. Proc. (Cum. Sup. 1982) § 156. It is of no consequence that the plaintiff did not receive further notice. The original notice was sufficient. The plaintiff was fully aware that a nonsuit was to enter unless she complied with the order.

The issue before this court is whether the trial referee acted properly in denying the motion to vacate the judgment of nonsuit. The question is not whether we would have applied as severe a sanction as did the trial court; rather, it is whether the trial court abused its discretion in selecting the sanction. A nonsuit may be opened only when, within the discretion of the trial court, there is shown a reasonable cause for the failure to comply with the court’s order or the lack of compliance is shown to have arisen from mistake or accident. Jaquith v. Revson, 159 Conn. 427, 431-32, 270 A.2d 559 (1970). Under the circumstances of this case, it is difficult to conclude that the failure of the plaintiff to comply with the discovery request of the defendant was due to anything other than her fault. There were no mitigating facts before the court at the [639]*639time it considered the plaintiffs motion to open the judgment of nonsuit, such as, for example, evidence of any real attempt to comply or of an inability to comply for any reasons beyond her control. In view of the totality of the circumstances, the excuse raised in the motion to open the nonsuit was both legally tardy and inadequate. See Practice Book § 377.

Careful attention must be paid to the prompt and orderly handling of discovery. Trial courts should not countenance unnecessary delays in discovery and should unhesitatingly impose sanctions proportionate to the circumstances. Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 144-45, 470 A.2d 246 (1984). The plaintiffs counsel clearly failed to follow the rules of practice. Either we adhere to the rules or we do not adhere to them. There was no abuse of discretion here where the trial referee decided to enforce adherence to the rules of practice. See Jaquith v. Revson, supra.

The plaintiff also claims error (1) in the exclusion by the trial court of evidence which she claims would have shown her parents’ contributions to the equity in the parties’ home and (2) in assigning a disproportionate share of the realty to the defendant.2

In its judgment on the cross complaint, the court passed title to the plaintiff in the parties’ jointly owned premises, subject to a lien in favor of the defendant [640]*640in the amount of $25,000 without interest until the due date. See General Statutes § 52-22. The plaintiff was not required to pay the $25,000 until one of the following events occurred: the death of the plaintiff or the minor child; the remarriage of the plaintiff; the cohabitation by the plaintiff with an unrelated male person on the premises; the sale of said premises; the minor child’s attainment of majority; or the failure of the plaintiff to pay the taxes, interest, principal payment, insurance, municipal liens and judgment liens sixty days after the same are due and payable.

The parties’ only real estate was their residence. Both sides submitted their appraisals of the fair market value of the residence, which was occupied by the plaintiff, the minor child and the plaintiff’s parents. The plaintiff’s financial affidavit indicated that the residence had a present fair market value of $85,000, while the defendant set the value at $110,000. The court made no specific finding of fact regarding the fair market value of the residence. There was a mortgage of approximately $33,900. The court did find that the defendant, who is a competent carpenter, provided his labor and that of approximately twenty of his friends who worked without payment in the construction of the house. The employer of the defendant drew the plans for the house; the defendant hired his employer to erect its shell and roof; the plaintiff paid all the construction expenses from a special checking account which was in her name and her father’s name and which was funded, in part, by the earnings from the parties’ employment.

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Bluebook (online)
482 A.2d 77, 2 Conn. App. 635, 1984 Conn. App. LEXIS 696, Counsel Stack Legal Research, https://law.counselstack.com/opinion/osborne-v-osborne-connappct-1984.