Netter v. Netter

220 Conn.App. 491

298 A.3d 653

Stephanie NETTER

v.Donald NETTER

AC 44803

Appellate Court of Connecticut.

Argued May 24, 2023

Officially Released July 18, 2023

John G. McCarthy, with whom, on the brief, was Harold R. Burke, Greenwich, for the appellant (defendant).

James P. Sexton, Hartford, with whom was John R. Weikart, for the appellee (plaintiff).

Alvord, Suarez and Seeley, Js.

ALVORD, J.

In this marital dissolution action, the defendant, Donald Netter, appeals from the trial court's order on the pendente lite motion of the plaintiff, Stephanie Netter, requesting access to the marital residence to retrieve her personal belongings and from the judgment of the court holding him in contempt for his failure to comply with a provision of the court's pendente lite parenting plan.¹ On appeal, the defendant claims that the court improperly (1) issued the order permitting access to the marital residence, and (2) granted the plaintiff's motion for contempt.² We conclude that the appeal is moot as to the defendant's first claim and dismiss that portion of the appeal. We affirm the court's judgment of contempt.

The following facts and procedural history are necessary to our resolution of this appeal. The parties were married on July 9, 2005, in New York, New York. They have two minor children. At the time of their marriage, the defendant resided on Round Hill Road (Round Hill Road property or marital residence) in Greenwich. After their marriage, the parties primarily resided in New York City and continued living there after the birth of their children. When the children began school, the parties lived full-time at the marital residence. On March 1, 2017, the plaintiff commenced this marital dissolution action, vacated the marital residence, and moved into an apartment in Greenwich.

Many pendente lite motions have been filed in this highly contentious dissolution action. The resolution of two pendente lite motions are at issue in this appeal. First, on February 6, 2019, the plaintiff filed a motion to access the marital residence to retrieve her personal belongings. Second, on August 8, 2019, the plaintiff filed a motion for contempt alleging that the defendant had violated a provision of a pendente lite parenting plan ordered by the court on October 25, 2018 (parenting plan). The court, Heller, J. , held a hearing on these and several other motions on October 23 and December 11, 2019, and February 10, 2021. On June 9, 2021, the court issued a memorandum of decision in which it granted the plaintiff's motion to access the marital residence for retrieval of her personal belongings and the motion for contempt relative to the parenting plan. This appeal followed. On January 23, 2023, during the pendency of this appeal, following a fifty-seven day trial spanning seventeen months, the court issued a memorandum of decision dissolving the parties' marriage. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims on appeal that the court improperly granted the plaintiff's pendente lite motion to access the marital residence to retrieve her personal belongings. Oral argument before this court was scheduled for May 24, 2023. On May 15, 2023, this court notified the parties to "be prepared to address at oral argument whether the portion of this appeal challenging the June 9, 2021 pendente lite order concerning the plaintiff's supervised access to the Round Hill [Road] property is moot in light of the January 23, 2023 dissolution judgment. See Sweeney v. Sweeney , 271 Conn. 193, 201 [856 A.2d 997] (2004)." At oral argument, the defendant's counsel conceded that his appeal from the pendente lite access order was moot but argued that this court could hear his claims under the capable of repetition, yet evading review exception to the mootness doctrine. The plaintiff's counsel argued, inter alia, that the claims are not "evading review" because the final dissolution judgment superseded the pendente lite access order, and the defendant has filed an appeal from the final judgment of dissolution. See Netter v. Netter , Connecticut Appellate Court, Docket No. AC 46484 (appeal filed May 5, 2023). We conclude that the appeal from the pendente lite access order is moot.

We begin by setting forth the relevant legal principles that guide our review. "Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [this] court's subject matter jurisdiction .... Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. ... Pendente lite orders are temporary orders of the court that are necessarily extinguished once a final judgment has been rendered. ... Once a final judgment has been rendered, an issue with respect to a pendente lite order is moot because an appellate court can provide no practical relief. ... As a result, an appellate court lacks subject matter jurisdiction over a pendente lite order after the trial court has rendered a final judgment." (Citations omitted; internal quotation marks omitted.) Altraide v. Altraide , 153 Conn. App. 327, 332, 101 A.3d 317, cert. denied, 315 Conn. 905, 104 A.3d 759 (2014).

The following additional facts and procedural history are necessary for our resolution of this claim. On June 9, 2021, the court granted the plaintiff's motion to access the marital residence.³ The pendente lite access order stated: "The plaintiff shall have access to the Round Hill Road property to retrieve her clothing and shoes, personal and professional belongings, and kitchen and office items (collectively, the plaintiff's belongings) as follows: The plaintiff shall have access to the Round Hill Road property between 9 a.m. and 5 p.m. on two days during the period June 21, 2021, to July 21, 2021. On or before June 14, 2021, the plaintiff shall propose six dates on which she is available to retrieve her belongings from the Round Hill Road property during that time period. The plaintiff shall communicate these dates to the defendant via Our Family Wizard.⁴ The defendant shall select two of the six dates and notify the plaintiff of his selection on Our Family Wizard on or before June 16, 2021. The two dates selected by the defendant shall be the dates on which the plaintiff shall have access to the Round Hill Road property to retrieve her belongings. The plaintiff shall be accompanied by an off-duty Greenwich police officer who shall remain at the Round Hill Road property at all times while the plaintiff is in the former marital residence. The plaintiff shall pay for the services of the Greenwich police officer without prejudice to seeking reimbursement from the defendant in the final orders to be issued in the dissolution action. The plaintiff may be accompanied by up to two other individuals to assist her in retrieving her belongings, neither of whom shall be the defendant's mother, Barbara Netter. These individuals shall be permitted to enter the Round Hill Road property and the former marital residence with the plaintiff. If the defendant is at home while the plaintiff is retrieving her belongings from the Round Hill Road property, he must remain in the pool house and shall not be in the residence. The children shall not be present at any time while the plaintiff is retrieving her belongings from the Round Hill Road property. The defendant shall arrange for the former marital residence at the Round Hill Road property to be unlocked and opened when the plaintiff arrives. The security system shall be unarmed. The lights and the air conditioning shall be working. The defendant may have a representative present to observe the plaintiff's retrieval of her belongings from the Round Hill Road property. Neither the defendant nor his representative shall photograph, record (by audio or visual means), or monitor by security camera or other means of surveillance the plaintiff's retrieval of her belongings from the former marital residence. The defendant shall not interfere with the plaintiff's access to the Round Hill Road property or to her belongings. The defendant shall not remove, move or hide any of the plaintiff's belongings to prevent her from retrieving them. The plaintiff shall promptly notify the defendant by Our Family Wizard when she has completed the retrieval of her belongings from the Round Hill Road property." (Footnote added.)

On January 23, 2023, during the pendency of this appeal, the court, Heller, J. , issued a memorandum of decision dissolving the parties' marriage. In its memorandum of decision, the court stated: "As previously ordered by this court on June 9, 2021 ( ... on appeal to the Appellate Court at AC 44803), the plaintiff shall have access to the Round Hill Road property between the hours of 9 a.m. and 5 p.m. for two days to remove her personal property from the Round Hill Road property."⁵

The court's order largely mirrored its pendente lite access order, except that it permitted the defendant to "be present while the plaintiff is at the Round Hill Road property."⁶

At oral argument before this court, the defendant's counsel conceded that the final dissolution judgment rendered the pendente lite access order moot. The plaintiff's counsel agreed. We conclude that there is no practical relief that we may afford the defendant as to the pendente lite access order because it was superseded by the access order contained within the final dissolution judgment. See J. Y. v. M. R. , 215 Conn. App. 648, 662, 283 A.3d 520 (2022) (when interim order becomes superseded by final order, proper redress is to challenge final order). Therefore, the defendant's claims with respect to the pendente lite access order are moot. The defendant's redress is to challenge the propriety of the final dissolution judgment. He has filed an appeal from that judgment. See Netter v. Netter , Connecticut Appellate Court, Docket No. AC 46484 (appeal...