Ricketts v. Ricketts

203 Conn.App. 1

247 A.3d 223

Robert Alexander RICKETTS

v.Janelle R. RICKETTS

AC 44298

Appellate Court of Connecticut.

Considered December 16, 2020

Officially released March 2, 2021

Robert Ricketts, self-represented, the appellant (plaintiff).

Janelle R. Mallett, self-represented, the appellee (defendant).

Bright, C. J., and Alvord and Suarez, Js.

ALVORD, J.

The marriage between the plaintiff, Robert Alexander Ricketts, and the defendant, Janelle R. Ricketts (now known as Janelle R. Mallett), was dissolved in 2018. The plaintiff appeals from the September 17, 2020 orders of the trial court, Nguyen-O'Dowd , J ., denying his postjudgment motion to "transfer [this matter] to the Regional Family Trial Docket in accordance with the [parties’] divorce decree" and appointing a guardian ad litem (GAL) for the parties’ minor children. On November 13, 2020, this court ordered, sua sponte, that the parties file memoranda giving reasons, if any, why this appeal should not be dismissed for lack of an appealable judgment. On December 16, 2020, we dismissed the plaintiff's appeal and indicated in our order that an opinion would follow. This opinion elucidates our conclusion that this court does not have jurisdiction to consider the propriety of these postjudgment orders at this time.

The following procedural history is relevant to our discussion. On June 26, 2018, the trial court, Diana , J. , rendered judgment dissolving the parties’ marriage that incorporated their separation agreement and the parenting plan for their two minor children. Pursuant to the decree, the parents share joint legal custody of the children, who primarily reside with the plaintiff. The agreement and parenting plan include several handwritten addenda, one of which specifies that "the [Regional Family Trial Docket] shall retain jurisdiction over the custody and parenting issues ... that may arise and need judicial resolution in the future."

On January 9, 2020, the defendant filed a motion for contempt alleging that she had been prevented from picking up the children from school for her scheduled parenting time. She subsequently filed a motion for the appointment of a GAL. Beginning on January 10, 2020, and through August 11, 2020, the plaintiff filed several applications for "emergency ex parte order[s] of custody" and "emergency motion[s]" for a temporary injunction. In these emergency motions, he alleged that the defendant was interfering with the children's education, and sought orders from the trial court limiting her access to the children's educational records and limiting her visitation with the minor children. The plaintiff's requests for emergency and ex parte relief were denied, and a hearing was scheduled on the pending motions.

On September 3, 2020, the parties appeared before the court, Nguyen-O'Dowd , J. , and the court ordered that the parties return on September 17, 2020, to confer on the appointment of a GAL.¹ On September 14, 2020, the plaintiff filed a motion to transfer adjudication of these matters to the Regional Family Trial Docket. On September 17, 2020, with the parties present, the trial court denied the motion to transfer, indicating that the Regional Family Trial Docket "is not accepting this case."² The trial court also appointed a GAL, chosen by "agreement of the parties," and continued the matter to October 8, 2020, for the court to "assess duties and fees for the GAL."³

On September 28, 2020, the plaintiff filed this appeal challenging the orders that were issued on September 17, 2020. When the appeal was filed, no final order had entered on the defendant's January 9, 2020 motion for contempt or on the plaintiff's motions that sought to modify the defendant's visitation.

On November 13, 2020, we ordered the parties to file memoranda giving reasons, if any, why this appeal should not be dismissed for lack of an appealable judgment. The parties filed their memoranda on November 27, 2020. We conclude that this appeal must be dismissed.

"The jurisdiction of the appellate courts is restricted to appeals from judgments that are final. General Statutes §§ 51-197a and 52-263 ; Practice Book § [61-1] .... The appellate courts have a duty to dismiss, even on [their] own initiative, any appeal that [they lack] jurisdiction to hear.... In the gray area between judgments that are undoubtedly final and others that are clearly interlocutory ... [our Supreme Court] has adopted the following test, applicable to both criminal and civil proceedings: An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them. State v. Curcio , 191 Conn. 27, 31, 463 A.2d 566 (1983)." (Internal quotation marks omitted.) Khan v. Hillyer , 306 Conn. 205, 209–10, 49 A.3d 996 (2012). That the present matter arises postjudgment does not affect that analysis: the final judgment rule still applies. See McGuinness v. McGuinness , 155 Conn. App. 273, 276–78, 108 A.3d 1181 (2015) ; Kennedy v. Kennedy , 109 Conn. App. 591, 603–604, 952 A.2d 115 (2008).

We first consider the plaintiff's claim that he may immediately appeal from the trial court's order denying his motion to transfer the case to the Regional Family Trial Docket "in accordance with the parties’ divorce decree." We disagree.

This court has held that neither prong of Curcio is satisfied when an appellant seeks to challenge an order transferring a case from one judicial district to another when the order "was rendered in the course of the continuing civil litigation ... did not terminate a separate and distinct proceeding ... [and did] not, in and of itself, conclude any recognized right of the parties." (Citation omitted.) Heyward v. Judicial Dept. , 159 Conn. App. 794, 804–805, 124 A.3d 920 (2015), citing Felletter v. Thompson , 133 Conn. 277, 281, 50 A.2d 81 (1946). The same is true of an order transferring a case to a special session of the Superior Court. See In re Justin F ., 116 Conn. App. 83, 105, 976 A.2d 707 (challenging transfer of case to Child Protection Docket at Middletown), cert. dismissed, 292 Conn. 913, 973 A.2d 660 (2009), and cert. denied, 293 Conn. 913, 978 A.2d 1109 (2009), and cert. denied sub nom. Albright-Lazzari v. Connecticut , 559 U.S. 912, 130 S. Ct. 1298, 175 L. Ed. 2d 1087 (2010). Here, the order denying the plaintiff's motion to transfer was entered in the course of continuing postjudgment proceedings on motions that remain pending before the trial court. The order did not terminate any proceeding and does not satisfy the first prong of Curcio .

"The second prong of the Curcio test focuses on the nature of the right involved. It requires the parties seeking to appeal to establish that the trial court's order threatens the preservation of a right already secured to them and that that right will be irretrievably lost and the [parties] irreparably harmed unless they may immediately appeal.... One must make at least a colorable claim that some recognized statutory or constitutional right is at risk." (Internal quotation marks omitted.) McGuinness v. McGuinness , supra, 155 Conn. App. at 277, 108 A.3d 1181.

Here, the plaintiff's claimed right to have the matter transferred to the Regional Family Trial Docket arises from the agreement incorporated into the decree dissolving the parties’ marriage. "It is well established that a separation agreement that has been incorporated into a dissolution decree and its resulting judgment must be regarded as a contract and construed in accordance with the general principles governing contracts." (Internal quotation marks omitted.) McLoughlin v. McLoughlin , 157 Conn. App. 568, 584–85, 118 A.3d 64 (2015). Because the right that the plaintiff seeks to vindicate in this appeal is neither statutory nor constitutional, the second prong of Curcio is also not satisfied.⁴ See Soracco v. Williams Scotsman, Inc ., 128 Conn. App. 818, 826, 19 A.3d 209 (claimed contractual right to avoid trial does not satisfy second prong of Curcio ), cert. denied, 302 Conn. 903, 23 A.3d 1244 (2011).

Insofar as the plaintiff challenges the trial court's "ruling that the plaintiff agreed on the appointment of a GAL," we conclude that this order also is interlocutory and does not constitute an immediately appealable judgment under Curcio .

In Kennedy v. Kennedy , supra, 109 Conn. App. at 603–604, 952 A.2d 115, as here, proceedings on postjudgment motions to modify custody and visitation were ongoing in the trial court. The trial court in Kennedy appointed separate counsel for each minor child pursuant to its authority under General Statutes § 46b-54. Id. The father appealed, and this court determined that "appointing counsel for both daughters is merely a step along the road ... to a final judgment resolving the custody and visitation issues [and] ... the [father]...