674 A.2d 1384
(14251)Appellate Court of Connecticut
Dupont, C. J., and Schaller and Spear, Js.
The plaintiff appealed to this court from the judgment of the trial court converting a decree of legal separation into a decree of dissolution with attendant financial, visitation and custody orders. Held that the trial court violated the plaintiff’s right to due process by prematurely terminating the hearing on the defendant’s petition to convert the decree before the plaintiff had a fair opportunity to present evidence on the contested issues; the question of whether the orders entered at the time of the separation were still fair and equitable was properly before that court, and the plaintiff was entitled to a reasonable opportunity to be heard on the issues involved.
Argued February 23, 1996
Officially released April 30, 1996
Action for legal separation, and for other relief, brought to the Superior Court in the judicial district of Hartford-New Britain at New Britain and referred to Hon. Max H. Reicher, state trial referee; judgment granting legal separation and certain other relief; thereafter, the court Jackaway, J., granted the defendant’s petition for a decree dissolving the marriage and rendered judgment dissolving the marriage, and the plaintiff appealed to this court. Reversed; new trial.
Helen Z. Pearl, with whom, on the brief, was Linda Clough, for the appellant (plaintiff).
Tadeusz Szot, pro se, the appellee (defendant).
SPEAR, J.
The plaintiff appeals from the judgment of the trial court converting a decree of legal separation into a decree of dissolution with attendant financial, visitation and custody orders. We agree with her claim
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that the trial court violated her right to due process by prematurely terminating the hearing and, therefore, we reverse the judgment, except as to the decree of dissolution.[1]
We glean the following history from the transcript, the trial court file, the record and the plaintiff’s brief.[2] The plaintiff obtained a decree of legal separation in 1993. The parties agreed on custody of the minor child, child support, alimony, a division of property and maintenance of health insurance by the defendant for the plaintiff. In 1994, the defendant petitioned[3] for a decree dissolving the marriage.
The court held a hearing on the petition on November 7, 1994. At the close of proceedings on that day, the court declared the marriage dissolved and further decreed that “all orders entered by the court remain in full force and effect subject to review and modification on November 21, 1994 . . . .” On November 21, 1994, the court conducted a further hearing to consider additional financial and other information bearing on the issue of whether the financial status of the parties was substantially different from that at the time of the legal separation. At that hearing, the trial court determined that the plaintiff had the burden of going forward and the ultimate burden of proof on her claim that the financial status of the parties had changed substantially from the time of the separation decree.
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During the plaintiff’s wide ranging cross-examination of the defendant, she touched on many areas. Her last question was: “[N]ow have you ever taken your son to an `R’ rated movie?” At that point, the court abruptly ended the questioning[4] and the hearing.[5] After the court ruled that there had been no substantial financial change since the legal separation, counsel for the plaintiff indicated that she had not had an opportunity to prove that there had been such a change.[6] The court then entered the same financial, custody and visitation orders as had been entered at the time of the separation decree. This appeal followed.[7]
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In a similar case where a party petitioned to convert a legal separation decree to a dissolution decree, this court stated that “although we hold that the trial court properly granted the defendant’s petition converting the parties’ legal separation into a dissolution of marriage, the trial court’s incorporation of the prior orders entered in the decree of legal separation into the decree of dissolution of marriage without a finding that the orders were `fair and equitable’ at the time of the dissolution was improper.” Mignosa v. Mignosa, 25 Conn. App. 210, 216, 594 A.2d 15 (1991). The plaintiff correctly pointed out that the question of whether the separation decree orders were still fair and equitable was properly before the court.
In order to determine whether such orders were fair and equitable, the parties were entitled to an opportunity to present evidence in a hearing. “The fact that the agreement was presumably found fair and equitable at the time of the legal separation does not excuse the failure of the court to make such a determination in the light of the situation of the parties at the time of dissolution and to afford an opportunity for a hearing on the issues involved.” (Internal quotation marks omitted.) Id., 215-16. “A fundamental premise of due process is that a court cannot adjudicate any matter unless the parties have been given a reasonable opportunity to be heard on the issues involved . . . .” (Citations omitted.) Bloom v Zoning Board of Appeals, 233 Conn. 198, 205, 658 A.2d 559 (1995). “Generally, when the exercise of the court’s discretion depends on issues of fact which are disputed, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.” (Internal quotation marks omitted.) Roberts v. Roberts, 32 Conn. App. 465, 475, 629 A.2d 1160
(1993). “It is a fundamental tenet of due process of law as guaranteed by the fourteenth amendment to the United
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States constitution and article first, § 10, of the Connecticut constitution, the persons whose property rights will be affected by a court’s decision are entitled to be heard at a meaningful time and in a meaningful manner. . . . Where a party is not afforded an opportunity to subject the factual determinations underlying the trial court’s decision to the crucible of meaningful adversarial testing, an order cannot be sustained.” (Citations omitted; internal quotation marks omitted.)Castro v. Castro, 31 Conn. App. 761, 770, 627 A.2d 452 (1993).
The court may have been annoyed by the plaintiff’s counsel and her insistence on conducting a rather slow moving cross-examination that often did not deal directly with the matters at issue. We also appreciate the court’s irritation when counsel repeated questions to which objections had been sustained. The plaintiff, nevertheless, had a due process right to be heard. The trial court had the power to control the plaintiff’s cross-examination by confining the questions to relevant matters. In addition, the court had the power to sanction counsel if the court’s instructions were disobeyed.[8] The court, however, did not have the right to terminate the hearing before the plaintiff had a fair opportunity to present evidence on the contested issues.
The judgment is reversed except as to the decree of dissolution and the case is remanded for a new trial.
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