McNamara v. McNamara, 207 Conn. App. 849 (2021) (withdrawal of counsel, continuance & abuse of discretion)
Officially released September 28, 2021.
In Short: Husband sought a modification and award of final-decision-making authority, Wife’s counsel filed a motion to withdraw which was granted three days prior to the hearing on Husband’s motion, Wife sought a continuance and was denied a continuance, and Husband won his requested relief at the hearing. The judgment was affirmed over Wife’s various abuse of discretion and constitutional due process challenges. The majority did not reach the issue of whether the trial court abused its discretion in denying Wife’s continuance request, and the dissenting opinion would have reversed based on that issue.
The parties were divorced in 2013 by separation agreement providing Wife with sole legal custody of the two minor children. In 2016 the parties agreed to a modification providing joint legal custody. In January and May of 2019, Husband filed motions to modify in which he sought amendment to the parenting time and final decision-making authority over educational and medical issues. A hearing was scheduled for August 8 and 9 of 2019.
Wife’s counsel filed a motion to withdraw and represented that communication with Wife had broken down, she did not trust him or value or follow his advice, or acknowledge the risk of unfavorable result at trial. Wife’s counsel’s motion was scheduled for August 5, 2019. Judge Winslow granted Wife’s counsel’s motion to withdraw after a hearing and then denied Wife’s oral motion for a continuance to obtain new counsel. On August 6, Wife filed a motion for continuance to seek more time to hire a lawyer, which the court denied. Husband’s motion for modification was heard on August 8 and 9 and Judge Winslow entered orders providing final decision-making authority to Husband over issues of physical health, emotional health, or therapeutic treatment decision or selection of the providers for such services.
Wife appealed, claiming that the trial court (1) abused its discretion in granting her counsel’s motion to withdraw, (2) violated her right to procedural due process in denying her motion for a continuance, (3) abused its discretion in denying her motion for continuance, and (4) abused its discretion in awarding Husband final decision-making authority on issues concerning the health, treatment, and therapeutic providers for the children.
Wife’s first claim was that the trial court abused its discretion by granting her counsel’s motion to withdraw with seventy-two hours remaining before the hearing. Wife claimed that the trial court’s determination that she did not object to the withdrawal was contradicted by the transcript. The Appellate Court set forth the abuse of discretion standard. The Appellate Court noted that, when asked to be heard on her counsel’s motion to withdraw, Wife responded with a litany of complaints about how her counsel had failed to adequately represent her, inform her and protect her. The Appellate Court found that Wife did not indicate that she wanted her counsel to continue to represent her, only that she did not want to be self-represented, and that she had ample opportunity to communicate her position. The Appellate Court also found that the time frame did not constitute an abuse of discretion as Wife had months of notice of the hearing date and declined her counsel’s invitation to meet in his office and prepare for the hearing.
Wife’s second claim was that the trial court violated her right to procedural due process in denying her motion for a continuance. The Appellate Court noted that denial of a continuance request, when not linked to a constitutional right, is reviewed under the abuse of discretion standard. The Appellate Court was unpersuaded that the denial of the continuance was directly linked to a specific constitutional right, namely, the care, custody and control of Wife’s children. This case was not linked to termination of parental rights or similarly dire parenting consequences.
Wife’s third claim is that the trial court abused its discretion in denying her motion for a continuance. The Appellate Court found that Wife had failed to adequately brief how she was harmed by the denial of her continuance request.
Wife’s fourth claim was that the trial court abused its discretion in modifying the custody orders. Husband had claimed that Wife willfully failed and refused to provide her consent for various medical and educational needs of the children which had been recommended by providers and experts, in a manner contrary to the well-being of the children. Husband further alleged that Wife withheld pertinent health information and made unilateral decisions in violation of the prior orders. Wife’s sole contention was that the trial court’s favorable findings as to her decision-making abilities were inconsistent with the court’s order providing Husband with final decision making. The trial court did find, however, that there were problems obtaining providers due to disagreements and that there were serious problems getting decisions made. The Appellate Court did not find any abuse of discretion in the award of final decision-making under the circumstances.
The Judgment was affirmed.
Judge Eveleigh issued a dissenting opinion, disagreeing with the majority’s conclusion that Wife failed to adequately brief how she was harmed by the denial of her continuance request. Judge Eveleigh concluded that Wife adequately set forth the harm in her brief pointing out that the self-represented Wife did not enter a single exhibit into evidence or call any witnesses other than herself on her case-in-chief, and thus was entitled to reach the merits of this claim. Judge Eveleigh, in reviewing the merits, concluded that denial of the continuance request was abuse of discretion under these circumstances, with the timeliness of the request after the withdrawal was granted, the limited time that the motions had been pending, the lack of any emergency that the motion be immediately heard, and the legitimate bases for the request, particularly in light of the fact that the basis for continuance was the court’s granting of Wife’s motion to withdraw.
