Advance Release Opinions – August 31

Connecticut Appellate Court

Medical Malpractice

Simmons v. Weiss – First judge dismissed medical malpractice action for failure to file a written opinion of a similar healthcare provider. More than four months later, plaintiff filed a motion to open the dismissal. Second judge concluded that first judge’s dismissal was improper because complaint included a claim for lack of informed consent, which did not require a written opinion of a similar healthcare provider. Second judge opened the dismissal as to the lack of consent claim. Appellate Court reversed, concluding that no exception to the four month limitation on opening judgments applied, including the equitable exception because the judgment did not “shock the conscience.”

Divorce

Dejana v. Dejana – Postjudgment motion for contempt for failure to pay the correct amount of unallocated alimony and child support under separation agreement incorporated into dissolution judgment. At the time of judgment, defendant had three sources of income: base salary, bonus and a stock incentive plan. Settlement agreement gave plaintiff a percentage of base salary and bonus and gave defendant the right to use stock incentive plan to pay for the minor child’s college education. After defendant fully paid for the education with the stock incentive plan, plaintiff claimed that “bonus” included the stock incentive plan such that defendant could pay tuition from the plan only after paying plaintiff her share. Trial court denied the claim. Appellate Court affirmed, concluding that the separation agreement unambiguously excluded the stock incentive plan from the unallocated alimony and child support calculation.

Lugo v. Lugo – Postjudgment motion to modify child custody. Trial court awarded sole custody to plaintiff. Defendant appealed, claiming lack of due process because there was insufficient notice of a claim for, or that the court might award, sole custody to plaintiff. Appellate Court affirmed, finding that defendant had sufficient notice that custody was in issue.