Farraqh Shahab v. Sahar Shahab (2013)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO RESTORE TO DOCKET

The court heard full argument in this matter on April 23, 2013 and again on June 19, 2013.   The court initially ordered counsel to research and brief the solely legal issues presented in defendant's Motion to Reinstate/Open (# 157) including the application of Connecticut General Statutes Section 52–80.   The court reviewed the surprising amount of case law available concerning reinstatement and § 52–80, and upon consideration of these precedents, withdraws its direction to counsel.

Plaintiff filed a dissolution of marriage action against defendant on March 28, 2011 (FA–11–4055569–S).  Defendant's counsel appeared on March 31, 2011 prior to the Return Date of April 12, 2011.   The parties failed to settle their differences despite nearly two years of unproductive wrangling.   However, on February 26, 2013, shortly before their trial was to begin, plaintiff withdrew his Complaint (See, Court File, # 156) and defendant withdrew her Cross Complaint (See, Court File, # 155) in an attempt to reconcile.

Since that time, the file reflects no other activity until defendant filed the instant motion on April 3, 2013.   In her motion defendant admits withdrawing her Cross Complaint but seeks its restoration to the docket, claiming that the parties' reconciliation had failed.   Plaintiff, meanwhile, filed a new dissolution action (FA–13–4067478–S) on April 18, 2013 with a Return Date of May 7, 2013.

“The right of a plaintiff to withdraw his action before a hearing on the merits, as allowed by § 52–80,¹ is absolute and unconditional.”   Sicaras v. City of Hartford, 44 Conn.App. 771, 776 (1997).

General Statutes § 52–212a applies to the restoration of a case to the docket as well as to the opening of judgments.  Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, 225 Conn. 804, 806 n.3 (1993);  Vasco v. Smego, 2007 Ct.Sup. 10237 (Matasavage, J.) [43 Conn. L. Rptr. 582].   Defendant filed her Motion to Restore less than four months after the withdrawal of her Cross Complaint.   The timing of her filing is found to be within the requirement of Section 52–212a.

The court further finds after a review of the court file that there has been a hearing on the merits in this case.   The court entered several temporary orders after argument on at least two separate occasions.²  In a family matter, any contested issue, including a pendente lite hearing, triggers the engagement of the court.  Grimm v. Grimm, 74 Conn.App. 406 (2002).³

Having so found, the court concludes that Section 52–80 applies to the current circumstances of this case.   The parties needed the permission of the court to withdraw their respective actions.   However, this permission may be presumed.  Discover Bank v. Gerardi, No. CV 106005544 S (Oct. 14, 2010;  Brazzel–Massaro, J.).   The court accepted both plaintiff's and defendant's withdrawals without argument or objection.   Restorations to the docket have been allowed when the court finds a need for the continuity of temporary orders, particularly those for the protection and stability of children, Holtzman v. Holtzman, 2001 Ct.Sup. 13968 (Shay, J.) [30 Conn. L. Rptr. 476], and when the rights of an opponent to the withdrawal are implicated.   See, Green v. Green, 1998 Ct.Sup. 5082 (Tierney, J.) [22 Conn. L. Rptr. 175].

Defendant's motion cited no such reasons, and her counsel argued none.   According to defendant, the purpose of restoring the 2011 case to the docket was to somehow preserve the two years of work the parties and their counsel invested in that file and to insure payment to the Guardian ad Litem.

The court acknowledges the bitter contentiousness reflected in the 2011 dissolution file.   Were the court to restore the old case, it might also resurrect issues that are best left buried in the past.⁴  The court can discern no right or claim of either party that cannot be asserted and argued in the new action filed by plaintiff.   Facts that existed at the time of the 2011 action can be raised in the new case if they are still relevant.

The question of whether a case should be restored to the docket is one of judicial discretion.  Sicaras, supra, @ p. 779;  A.I. Credit Corp. v. Gronski, 2003 Ct.Sup. 3292 (Silbert, J.) [34 Conn. L. Rptr. 317];  See CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 391, 685 A.2d 1108 (1996).

Since withdrawals are analogous to final judgments, Sicaras, supra, the court concludes that “final” means just that;  restoration to the docket is not called for in the circumstances described by defendant.

The court denies defendant's motion.⁵

SO ORDERED.

BY THE COURT,

Carbonneau, J.

FOOTNOTES

FN1. Sec. 52–80.   Nonsuits and withdrawals;  costs ․ 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..  FN1. Sec. 52–80.   Nonsuits and withdrawals;  costs ․ 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.

FN2. This is not a matter like Welsh v. Welsh, 2011 Ct.Sup. 5093 (Conway, J.), wherein the court concluded that the entry of consensual orders did not constitute a hearing on the merits implicating Section 52–80..  FN2. This is not a matter like Welsh v. Welsh, 2011 Ct.Sup. 5093 (Conway, J.), wherein the court concluded that the entry of consensual orders did not constitute a hearing on the merits implicating Section 52–80.

FN3․  [W]e 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, supra., fn3..  FN3․  [W]e 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, supra., fn3.

FN4. The court, Prestley, J., appointed Attorney Margaret Bozek as Guardian ad Litem of the parties' three minor children on December 21, 2011.   See, Court File, # 123.   There was a further order concerning her fees on June 29, 2012.   Attorney Bozek filed a Motion for Order Re:  GAL Fees (# 153) on February 19, 2013.   The court finds, after a review of the file and its observation of Attorney Bozek's practice, that she is more than capable of collecting whatever is owed to her.   That there may be an amount owed to the GAL is not a reason to grant Defendant's Motion to Restore..  FN4. The court, Prestley, J., appointed Attorney Margaret Bozek as Guardian ad Litem of the parties' three minor children on December 21, 2011.   See, Court File, # 123.   There was a further order concerning her fees on June 29, 2012.   Attorney Bozek filed a Motion for Order Re:  GAL Fees (# 153) on February 19, 2013.   The court finds, after a review of the file and its observation of Attorney Bozek's practice, that she is more than capable of collecting whatever is owed to her.   That there may be an amount owed to the GAL is not a reason to grant Defendant's Motion to Restore.

FN5. This decision renders moot plaintiff's Motion to Dismiss defendant's Motion to Reinstate/Reopen..  FN5. This decision renders moot plaintiff's Motion to Dismiss defendant's Motion to Reinstate/Reopen.

Carbonneau, John L., J.