159 Conn.App. 167
Conn. App. Ct.2015Background
- Karen and David Zilkha divorced by judgment of dissolution in 2005 that incorporated a separation agreement and stipulation.
- In 2008 Karen moved to open the dissolution judgment alleging David concealed a claim against a former employer; David had received settlement payments and a final payment of $700,000 was due in April 2009.
- The trial court ordered $250,000 of the April 30, 2009 payment placed in escrow pending resolution of the motion to open; an Oneglia hearing was later held and the court allowed limited discovery but never resolved the motion to open.
- In 2012 the attorney for the minor children moved for present and future fees for himself, the guardian ad litem (GAL), and a custody evaluator; after hearings the court (Nov. 19, 2013) ordered payment of set fees by both parties and disbursed specified sums and retainers from the escrowed funds.
- David appealed, arguing (1) the court lacked authority to direct disbursement from the escrow while the dissolution judgment remained unopened and (2) the court improperly curtailed his testimony criticizing the GAL’s performance.
- The appellate court reversed only the portion ordering disbursements from escrow and affirmed the evidentiary ruling limiting David’s lay-opinion testimony about the GAL.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court had authority to order payment of fees from escrow while motion to open dissolution remained pending | Karen (and GAL) implicitly argued court could order fees and use escrow to satisfy them | David: escrow funds remained his property until the judgment was opened; court lacked authority to dictate which assets must be used to pay fees | Reversed as to escrow disbursements: court lacked authority to direct payments from escrow while judgment not opened; portion vacated |
| Whether court improperly barred David from testifying that GAL’s conduct was "improper" | GAL: exclusion proper; David’s testimony was preserved or waived arguments were inadequate | David: should have been allowed to testify about observed improper conduct to challenge GAL fees/performance | Affirmed: trial court did not abuse discretion; David, a lay witness, lacked specialized knowledge and his opinion was not helpful or admissible under Conn. Code Evid. §7‑1 |
Key Cases Cited
- Reville v. Reville, 312 Conn. 428 (Conn. 2014) (motion to open marital judgment for fraud circumstances)
- Oneglia v. Oneglia, 14 Conn. App. 267 (Conn. App. 1988) (standard/procedure for Oneglia hearing to determine if discovery is warranted on motion to open)
- Bruno v. Bruno, 146 Conn. App. 214 (Conn. App. 2013) (until motion to open granted, earlier judgment remains in effect)
- Dougherty v. Dougherty, 109 Conn. App. 33 (Conn. App. 2008) (court’s authority to redistribute assets upon opening judgment)
- Dinan v. Marchand, 279 Conn. 558 (Conn. 2006) (standard of review for evidentiary rulings and trial court discretion)
- Kronovitter v. Doyle, 135 Conn. App. 157 (Conn. App. 2012) (distinction between lay and expert opinion testimony)