Opinion
FA044002198S
08-17-2018
Mariel CHETCUTI v. Peter CHETCUTI
UNPUBLISHED OPINION
SHAY, J.T.R.
Background
The marriage of the parties was dissolved by decree of this court on May 19, 2006, at which time the court approved a certain Agreement (# 114.10) dated May 18, 2006, and incorporated same by reference in its decree. Article III of the Agreement provides for the payment of periodic alimony by the defendant husband ("husband") to the plaintiff wife ("wife"), and the husband has filed a Motion for Modification (# 132.01) dated October 30, 2017. In relevant part, under the terms of the Agreement the husband is obligated to pay to the wife the sum of $55,000.00 per year in semi-monthly installments of $2,291.66, and, in addition thereto, a sum equal to 25% of his gross annual bonus as defined therein. The parties specifically provided that alimony was based in part on the understanding that the wife was unable to work, and that it was modifiable. In addition, the Agreement provided that should the wife obtain employment, the husband could move for a modification of his alimony obligation. The basis of his motion for modification is his claim that the wife has been employed for several years since the date if the initial decree.
By way of discovery, on or about December 14, 2017, the husband served the plaintiff’s counsel with a Request for Admission of Facts (Exhibits # 1 and # 3) pursuant to Practice Book § 13-23, and simultaneous thereto, filed a Notice of filing with the court as required by Practice Book § 13-22(b). (Exhibit # 2.) Among other things, the requests to admit covered the wife’s physical condition, employment history (full or part-time), travel, and scholarly publications, all since the date of the original decree. No responsive pleading was filed by the wife. Later, on January 10, 2018, at the request of the wife’s counsel, the husband’s counsel followed up with an e-mail attaching thereto unsigned copies of the relevant documents previously served, including the Request for Admission of Facts dated December 14, 2017. (Exhibit # 6.) As of January 31, 2018, the wife still not having answered the Request for Admission, the husband’s counsel, once again, asked counsel for the wife if she intended to respond to the Request, she having "seriously blown the deadline." There still has been no response to this query, including a request to withdraw or amend an admission.
The court heard the testimony of S. Ben Brightwell, Esq., the wife’s former counsel regarding the Request for Admission of Facts. He told the court that he had never received the pleading, and in any event, service being defective, he did not believe that he was under any obligation to file responses. However, in light of the testimony of the husband, as well as the documentary evidence submitted to the court, the court found Attorney Brightwell’s testimony to be inconsistent and unpersuasive. Accordingly, the court finds that the evidence, in fact, supports a finding that a proper Request for Admission of Facts was served on the wife’s counsel on December 14, 2017; and that the wife and her counsel failed to file a timely response within thirty (30) days thereof.
The husband claims that each instance of nonresponse to the request to admit is a judicial admission that conclusively establishes those facts. That being the case, he has asked by way of a Motion in Limine (# 154.00) dated May 29, 2018, to preclude the wife from giving what he describes as "self-serving" testimony at hearing on the Motion for Modification. For her part, the wife’s present counsel has filed an Objection to the Defendant’s Motion in Limine to Preclude (# 156.00) dated August 6, 2018, arguing that to preclude the wife from testifying about the merits of her case would be a violation of due process. The husband’s counsel has filed a Reply to the wife’s Objection.
Discussion
Practice Book § 13-23(a) states in relevant part: "each matter of which an admission is requested is admitted unless, within thirty days after the filing of the notice required by Section 13-22(b) ... the party to whom the request is directed files and serves ... a written answer or objection ..." In addition, Practice Book § 13-24(a) states in relevant part that: "Any matter admitted under this section is conclusively established unless the judicial authority on motion permits withdrawal or amendment of the admission. The judicial authority may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the judicial authority that withdrawal or amendment will prejudice such party in maintaining his or her action or defense on the merits." (Emphasis added.)
In Allied Grocers Cooperative, Inc. v. Caplan, 30 Conn.App. 274, 279-80 (1993), cited by the husband herein, the Appellate Court affirmed the trial court’s grant of summary judgment. The plaintiff therein filed requests to admit certain material facts that were not answered by the defendant, and in connection with the motion for summary judgment, he merely filed an unsworn statement in response to the plaintiff’s affidavit. There, the court opined the defendant Caplan’s loss was caused by his failure to answer the request in the first place. Nevertheless, after his initial failure to respond, he was accorded the opportunity to offer a countervailing affidavit in opposition to the motion for summary judgment, and he failed to do so then also. Here, should the court grant the husband’s motion to preclude, the wife would not have the opportunity whatsoever to offer any countervailing testimony on the most significant material fact- i.e. her employment status.
The question before this court is whether, under all the facts and circumstances of this case, the court should preclude the testimony of a party on what is the seminal issue, that is, whether or not the wife is or has been "working" within the meaning of Article 3.7 of the Agreement. That issue alone is the "door-opener" for the husband to seek a modification of his obligation to pay periodic alimony to the wife. In deciding a case based upon the application of the Rules of Practice, and "mindful of the admonition against favoring form over substance," the late Justice Barry Schaller made the following observation: "We are mindful that it is a fundamental tenet of due process that persons directly concerned with the result of an adjudication be given reasonable notice and the opportunity to present their claims or defenses ." (Emphasis added.) The court went on to reverse the trial court for the granting of a postjudgment motion to strike in a family case, in what otherwise would have terminated the claim of the husband for relief. Zirinsky v. Zirinsky, 87 Conn.App. 257, 272-73 (2005).
The husband has cited the case of Filipek v. Burns, 76 Conn.App. 165 (2003). In that case, following a denial of its motion to dismiss, the defendant, Commissioner of Transportation, filed requests to admit which were ignored by the plaintiff. The defendant then filed a second motion to dismiss, this time supported by affidavits to which the plaintiff also failed to respond. The trial court, once again refused to dismiss the matter, stating that there remained a genuine issue of material fact based on the allegations in the complaint. In reversing the trial court, the Appellate Court found that while the trial court was bound to consider the facts alleged in the complaint in a manner most favorable to the pleader, nevertheless, it held that the plaintiff’s silence as to the requests to admit "should be deemed an admission of their truth and the statements admitted should be deemed conclusively proven." Moreover, opined the court, the burden was on the "plaintiff to dispute the facts contained in the affidavits and established by her admissions." Id. at 168. The plaintiff had a second chance to respond to the issues and again chose not to. Should the court grant the husband’s request to preclude the wife from testifying, she will by default be effectively silenced based solely upon her original failure due to her the actions of counsel, without any credible evidence that she was aware of her obligation to respond.
In the matter of Montanaro v. Balcom, 132 Conn.App. 520, 524-25 (2011), also cited by the husband herein, the Connecticut Appellate Court affirmed the decision of the trial court to grant summary judgment in a medical malpractice action. There, in a response to a request to admit the fact that the treating physician had conducted a post-operative evaluation of the plaintiff on a specific date, the plaintiff responded in writing with a specific admission. Notwithstanding, the fact that the plaintiff later filed a counter affidavit in response to the defendant’s motion for summary judgment, the court found that there was no outstanding issue of material fact as it treated the earlier admission as binding. What distinguishes that case from the present one is the fact that there the plaintiff made an actual admission, whereas here, due to a failure on the part of her counsel, the wife made no response at all, and the claimed binding admission comes into play by default.
The right of a litigant to have their day in court is enshrined in Article 1, Section 10 of the Connecticut Constitution. Prior to precluding a person from prosecuting or defending their interests at a hearing or trial, a court should weigh the potential harm to one party given the loss of that fundamental right, as against the potential harm or prejudice to the position of the person seeking to impose a procedural sanction, particularly for noncompliance with a rule of discovery. A good example is found in the case of the expert witness. Before a court can preclude the testimony of an expert witness, it must conduct a hearing at which time it must find that: (1) the sanction itself is "proportional to the noncompliance at issue"; and (2) that there is no "less severe sanction or combination of sanctions" available to it to impose. Practice Book § 13-4(h). Here, the preclusion sought is not the testimony of an expert, but rather that of a litigant. In the absence of any evidence of an untruthful or misleading response to the request to admit, the loss of her day in court far outweighs her noncompliance based upon the action or inaction of her counsel.
Moreover, by denying the husband’s Motion to Preclude, he is not without a means to address the conduct of the wife. "Judicial Admissions are conclusive on the party making them, and contrary evidence is not admissible unless the court in its discretion permits the admission to be withdrawn, explained, or modified ... Such permission may be granted if it appears the admission was made by improvidence or mistake ... Nevertheless, even if a judicial admission is withdrawn, there remains an evidentiary admission by the party that is admissible against the party by his or her opponent." C. Tait & E. Prescott, Tait’s Handbook of Connecticut Evidence (5th ed. 2014), § 8.16.3, p. 529. (Emphasis added.) Furthermore, the husband retains his right to seek "reasonable expenses," including attorneys fees and costs should he be put to his proof as to the issues in question. Practice Book § 13-25.
"It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings." East Haven Builders Supply, Inc. v. Fanton, 80 Conn.App. 734, 743-45 (2004). In that case, the Connecticut Supreme Court upheld the trial court’s decision not to treat the defendant’s failure to specifically reply to a request for admissions as binding admissions. While recognizing the fact that the defendant did not specifically answer the request to admit, the court considered all the facts and circumstances, holding that: "The particularities of the litigation, however, forestall the fatality of that matter due to mere procedural defect." Id. at 745.
The court finds that in the interest of justice and due process, especially in light of the fact that she was ill-served by her first attorney, the wife should be permitted to testify as to the merits of her case in defense of the motion for modification, and that to hold otherwise would deprive her of her day in court. Moreover, the husband is not harmed by this ruling in that he can still avail himself of his procedural and statutory rights, as well as the applicable Rules of Evidence at trial.
ORDER
Based upon the foregoing, IT IS HEREBY ORDERED THAT: The defendant’s Motion in Limine to Preclude and/or Sanctions (# 154.00) dated August 2, 2018, is HEREBY DENIED; and the plaintiff’s Objection to Defendant’s Motion in Limine to Preclude (# 156.00) dated August 6, 2018, is HEREBY SUSTAINED.