Mary Welch v. John Welch (2011)

MEMORANDUM OF DECISION

After oral arguments and a review of the court's file, the court makes the following findings.

In April of 2010, the plaintiff wife filed a dissolution action.   Both parties were represented by counsel and no cross complaint or counterclaim was filed.   On three separate dates, August 4, 2010, September 16, 2010 and November 24, 2010, the court, by agreement of the parties, entered pendente lite orders.   On January 4, 2011, the plaintiff wife withdrew her complaint.¹  The defendant husband, in a motion dated January 4, 2011, moves to have the original complaint restored to the docket.   The defendant argues that pursuant to C.G.S. § 52-80, the plaintiff required leave of the court to withdraw her action and absent said permission her withdrawal was improper;  therefore the case should be restored to the docket “to allow for enforcement of its prior rulings, and further proceedings.”   The plaintiff counters that her right to withdraw her complaint is absolute and unconditional.

C.G.S. § 52-80 states in part.

The plaintiff may withdraw any action so returned to and entered in the docket of any court, before the commencement of a hearing on the merits thereof.   After the commencement of a hearing on an issue of fact in any such action, the plaintiff may withdraw such action, or any other party thereto may withdraw any cross complaint or counterclaim filed therein by him, only by leave of court for cause shown.

The court in Grimm v. Grimm, 74 Conn.App. 406 (2002), found the trial court erred when it allowed a dissolution action, which had been pending on the court's trial docket for three years and which had commenced trial three months prior to the withdrawal, to be withdrawn without leave of the court.   The appellate court in Grimm disagreed with the trial court's characterization of the plaintiff's cursory testimony not constituting the taking of evidence.   Id. at 410.

The present case is distinguishable from the facts in Grimm.   In stark contrast to Grimm, the present complaint had remained pending on the court's docket for nine months prior to its withdrawal.   Moreover, trial on the underlying dissolution action had not commenced nor had it yet been assigned trial dates at the time of the withdrawal.

The only colorful claim is whether the court's acceptance of the parties' pendent lite agreements constitutes “commencement of a hearing on the merits thereof.”   Within footnote 3 in the Grimm case, Judge Bishop, in concluding that trial had commenced opined.

Although that determination [that trial had commenced] is adequate to dispose of the claim under [C.G.S.] § 52-80 in this case, we note that prior to September 12, 2000, the court had, in fact, conducted pendente lite hearings on interim contested matters.   Consistent with the purpose of § 52-80 to prevent a party from unilaterally withdrawing an action once it has engaged the court, we believe that a better understanding of § 52-80 in the marital dissolution context is that its provisions apply anytime after the court has conducted a hearing on any contested issue, including a pendente lite hearing.

Grimm at p. 410, fn3.

The parties conceded during oral argument before this court on February 3, 2011, that pendent lite orders in the present case were arrived at by agreement of the parties;  the court conducted no contested hearings prior to the withdrawal of the complaint.   Hence this court concludes the dicta contained in the Grimm footnote is inapplicable to the present case.   Because no contested hearing had commenced the plaintiff did not require permission of the court to withdraw her action.

The defendant correctly argues judicial restoration of a case to the docket is discretionary.  Sicaris v. Hartford, 44 Conn.App. 771, 779, cert. denied 241 Conn. 916 (1997).   So too is a defendant's filing of a cross complaint or counterclaim.   The defendant's reasoning as to why the plaintiff should forfeit her prerogative to discontinue as a plaintiff in this dissolution action is unpersuasive.

The defendant's motion to restore the case to the docket is hereby denied.   The plaintiff's objection to said motion is hereby sustained.

Bernadette Conway, Judge

FOOTNOTES

FN1. The court is unaware of the plaintiff's reasoning behind her withdrawal of the complaint..  FN1. The court is unaware of the plaintiff's reasoning behind her withdrawal of the complaint.

Conway, Bernadette, J.