Opinion
LLIFA104009253S
04-01-2016
Jennifer M. Rogers v. Marc J. Rogers
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
John W. Pickard, J.
The court has given careful consideration to the defendant's motion to reargue (#201) and the plaintiff's objection. For the reasons given, the motion to reargue will be denied.
The defendant quotes from Walshon v. Walshon, 42 Conn.App. 651, 654-57, 681 A.2d 376 (1996), in support of his motion. But, the Walshon case is distinguishable because it was decided before the creation of separate rules of practice regarding family matters. Prior to the family rules, family cases were governed by the civil rules. The § 25-54 of the family rules became effective in 1998. It did not exist when Walshon was decided. § 25-54 is one of several other sections within the family rules which incorporate various sections of the civil rules. See, for example, § 25-6, § 25-9, § 25-19, § 25-23, § 25-31, § 25-38, and § 25-39 which refer to specific civil rules and make them applicable to family matters. The specific application of so many sections of the civil rules to family matters necessarily implies that sections of the civil rules not specifically mentioned are excluded from application. " [W]e consider the tenet of statutory construction referred to as expressio unius est exclusio alterius, which may be translated as the expression of one thing is the exclusion of another . . . [W]here express exceptions are made, the legal presumption is that the legislature did not intend to save other cases from the operation of the statute." (Citations omitted; internal quotation marks omitted.) Felician Sisters of St. Francis of Connecticut, Inc. v. Historic District Commission, 284 Conn. 838, 850-51, 937 A.2d 39 (2008).
Three of the other cases cited by the defendant are termination of parental rights cases which are governed by separate rules for juvenile matters including Rule 32a-2 which provides, in part: " All hearings are essentially civil proceedings except where otherwise provided by statute."
The defendant also cites Jacobowitz v. Jacobowitz, 102 Conn.App. 332, 344, 925 A.2d 424 (2007), in support of his position. The Jacobowitz case is a family case for dissolution of marriage. But, it included a third-party claim of fraudulent conveyance against two other parties. A fraudulent conveyance claim is a civil claim not a family matter. The decision is not entirely clear, but it appears that the motion to dismiss for failure to make out a prima facie case was directed solely at the third-party claim and not at the claim for dissolution of marriage. The motion was denied and affirmed by the Appellate Court. Without discussing the application of the family rules, the Appellate Court discussed the application of Practice Book § 15-8 from the civil rules. Jacobowitz v. Jacobowitz, 102 Conn.App. 332, 344, 925 A.2d 424 (2007). In its discussion, the court cited to civil case law rather the family case law. Undoubtedly this is because the third-party claim for fraudulent conveyance was a civil claim which was joined with a marriage dissolution action. Of course, the civil rules of practice would apply to the civil claim of fraudulent conveyance.
The final case cited by the defendant in support of his motion to reargue is Bretherton v. Bretherton, 72 Conn.App. 528, 805 A.2d 766 (2002). This was a relocation case involving the proper application of Ireland v. Ireland, 246 Conn. 413, 717 A.2d 676 (1998). The defendant is correct that it appears to have been decided in the trial court after the creation of the Practice Book family rules including § 25-54. After the completion of the plaintiff's testimony in support of a relocation the defendant moved to dismiss on the ground that the plaintiff had failed to carry her burden set forth in Ireland . The trial court denied the motion to dismiss on substantive grounds, not because a motion to dismiss was improper in a family case. On appeal the trial court was affirmed. Apparently no one raised the issue of whether, in light of the new family rules which do not incorporate the right to move to dismiss at the completion of the plaintiff's case pursuant to Practice Book § 15-8, the right to make such a motion still exists in a family case. Bretherton , therefore, cannot be used as precedent in support of the defendant's position.
For these reasons, the motion to reargue is denied. The defendant shall be permitted to present any evidence he wishes. Regardless, the passage of time dictates that the parties pick a new date to appear for testimony and/or final argument regarding the substantive issues including the proper application of McKeon v. Lennon, 155 Conn.App. 423, 109 A.3d 986 (2015), and the fact that this case is on appeal to the Supreme Court and was argued on January 27, 2016. The parties are directed to contact Case Flow to schedule a new trial date.