Pamela G. Marino v. Joseph A. Marino (2010)

MEMORANDUM OF DECISION

This matter comes before the court on defendant's motion to stay plaintiff's request to admit (# 111) and defendant's motion for a protective order (# 118).   Plaintiff has objected to both motions.   Although the specifics are slightly different, the arguments are identical and the court will consider them as one.¹

The facts are not in dispute.   On August 12, 2010, the defendant, a music teacher at a West Hartford high school, was arrested and charged with two counts of sexual assault in the second degree allegedly involving a former student.   On August 27, 2010, the Wethersfield police filed additional charges of a similar nature against the defendant.   On the same day, the plaintiff issued a writ, summons and complaint seeking dissolution of her marriage to the defendant.   The return date on that summons was September 21, 2010.   On August 30, 2010, the plaintiff filed an ex parte motion for sole custody, supervised access and exclusive use and possession (# 106), and that motion was granted.   The defendant has not sought to contest those orders, and by agreement of the parties, supervised access to the children continues to this date (# 108).

The present dispute is simple.   The plaintiff, through the filing of requests to admit (# 109) and notice of deposition, seeks to perform her due diligence discovery of the defendant's alleged behavior, and the defendant asks that the discovery be stayed for a period of time so as not to compromise his defense in the criminal proceedings referenced above.   Both parties agree that the court has the discretion to issue a stay and also agree as to the factors that the court should consider in making such a decision.   The recent Appellate Court case of Tyler v. Shenkman-Tyler, 115 Conn.App. 521 (2009), citing the federal case of Bridgeport Harbour Place I, LLC v. Ganim, 269 F.Sup.2d 6 (D.Conn.2002) at page 8, sets forth the balancing factors.   The court wrote:

The factors a court should consider include:  1) the interests of the plaintiff in an expeditious resolution and the prejudice to the plaintiff in not proceeding;  2) the interests of and burdens on the defendants;  3) the convenience to the court in the management of its docket and in the efficient use of judicial resources;  4) the interests of other persons not parties to the civil litigation;  and 5) the interests of the public in the pending civil and criminal actions.

Taking the factors in order, the court notes that the statutory ninety (90) day stay has not even expired and that the case has a case management date in January 2011.   Even acknowledging that there are trial dates scheduled for the end of January into early February, this is a very young dissolution matter and a brief delay as requested by the defendant would not interfere with “an expeditious resolution.”

The defendant relies most heavily on the second factor in his argument.   He points out that due to the very serious criminal charges he is facing, if there is no stay of the discovery, he will have to make the very difficult decision of answering and possibly compromising his criminal defense, or using his Fifth Amendment right against self-incrimination.   Due to the fact that the dissolution of marriage matter is not a criminal proceeding, the court could find an adverse inference from such a pleading.   The defendant argues that placing him in this position so early in the case has the practical effect of denying him his constitutional protection against self-incrimination.   The plaintiff correctly points out that having to make such a difficult choice has not been found by the courts to be considered a deprivation of the constitutional protection.   See State v. Easton, 111 Conn.App. 538 (2009).

Given the fact that this case is relatively new to the court's docket, the third factor is not a significant consideration at this time.

The plaintiff argues that the interests of the minor children under the fourth factor as set forth in the cited cases should be a very powerful force propelling this case forward to a conclusion as quickly as possible.   Counsel points out that the criminal matters have generated a great deal of news coverage and that has the potential of exposing the children to negative and harmful information.   There is also a pending pendente lite motion filed by the plaintiff seeking permission to relocate to a different state which is based at least partially on removing the children from what the plaintiff sees as a harmful environment.

The final factor is the interest of the public in all pending court cases, both civil and criminal.

After carefully considering and weighing all of these factors, the court finds that a relatively short stay of discovery would assist the defendant while not unfairly burdening the plaintiff or the children.

Accordingly, the court grants the defendant's motion for stay as to the requests to admit (# 111), as well as any other form of discovery relating to the criminal charges, or any behavior on the part of the defendant of a similar nature not specifically covered by the pending criminal charges, for a period not to exceed sixty (60) days, and also grants his motion for protective order regarding his deposition (# 118) for the same period of time.   This stay shall expire at the end of business on January 11, 2011.   This order shall not apply to any financial discovery or other areas not related to the underlying criminal charges or related behavior.   The previously scheduled trial dates are hereby vacated and the parties should report to the Caseflow Coordinator to establish new dates in accordance with these orders.

SO ORDERED.

BY THE COURT,

Adelman, J.

FOOTNOTES

FN1. The parties agree that the two motions incorporate the same arguments..  FN1. The parties agree that the two motions incorporate the same arguments.

Adelman, Gerard I., J.