Cynthia Huntoon v. David Huntoon (2013)

MEMORANDUM OF DECISION RE MOTION TO RE–OPEN JUDGMENT

The plaintiff brought an action for dissolution against the defendant who was served in-hand with the writ, summons, complaint, and summary of automatic orders together with a notice of Lis Pendens on June 28, 2012.   The defendant, an attorney who had been practicing in Connecticut for several years, failed to file an appearance in the case.   As a result, he received no notice of the hearing which proceeded to judgment on February 14, 2013.   He now moves to open the judgment on the grounds that the plaintiff led him to believe that she had abandoned her divorce case in Connecticut, that the judgment was obtained in secret with no notice to him even though plaintiff's attorney had been corresponding with him about the issues in the case, and that the trial court was seriously misled by plaintiff and her attorney which resulted in orders that are grossly unfair to him.

Subsection (a) of section 52–212 of the Connecticut General Statutes provides, in relevant part, that any judgment rendered or decree passed upon a default in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.

The defendant presented no credible evidence at the hearing which satisfies the statutory requirement that he was prevented by mistake, accident or other reasonable cause from making a defense.   First, he offered no evidence to support his contention that the plaintiff had led him to believe that she had abandoned her case.   On the contrary, the defendant admitted that he had participated in settlement discussions with the plaintiff's attorney.   As late as eight days before the divorce, he was in e-mail contact with plaintiff's attorney regarding his interest in the family home which was being foreclosed upon due to non-payment of mortgage.   His claim that he believed that his wife had abandoned her case is disingenuous given the age of the case and defendant's continuing communications with plaintiff's attorney related to the issues in the divorce.

While it appears to be the case that the plaintiff's attorney did not apprise the defendant of the hearing date, he had no duty to do so.   The court takes issue with the defendant's claim that the hearing was a secret one.   Had the defendant filed an appearance at any time prior to the hearing date, he would have had the notice of the hearing.   As an attorney, he knew the rules regarding the filing of an appearance in order to receive notice of court hearings.

Defendant indicated that he was experiencing some problems at the time the Connecticut action was brought.   He, however, did have the presence of mind to transfer his interest in the family home to his employer on the day he was served.   He offered no reasonable cause for his failure to file an appearance.  “While mistake, accident or other reasonable cause may be a sufficient reason to open a default judgment, negligence is not.  Postemski v. Landon, 9 Conn.App. 320, 325, 518 A.2d 674 (1986).   Defendant's failure to file an appearance after he was duly served with the summons and complaint constitutes negligence.   Our Appellate Court has recently reiterated that “[a] court should not open a default judgment in cases where the defendant admit[s] [he] received actual notice and simply chose to ignore the court's authority ․ Negligence is no ground for vacating a judgment, and [n]egligence of a party or [his] counsel is insufficient for purposes of § 52–212 to set aside a default judgment ․ [N]egligence cannot establish the requisite reasonable cause to open a judgment under § 52–212.  (Internal quotation marks omitted;  internal citations omitted.)  Dziedzic v. Pine Island Marina LLC, 143 Conn.App. 644, 653 (2013).   Accordingly, the defendant's motion to open the judgment is denied.

BY THE COURT,

Gallagher, J.

Gallagher, Elizabeth A., J.