JOHN D‘AMATO v. DIANNE HART-D‘AMATO
(AC 36849)
Connecticut Appellate Court
Argued September 9; officially released December 13, 2016
Beach, Keller and Bear, Js.
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Dianne Hart, self-represented, the appellant (defendant).
Patrice A. Cohan, with whom was Jeanmarie A. Riccio, for the appellee (plaintiff).
Opinion
BEACH, J. The defendant, Dianne Hart-D‘Amato, appeals from the judgment of the trial court dissolving her marriage to the plaintiff, John D‘Amato, and entering related custody and financial orders. The defendant claims that the trial court (1) violated her right to due process when it denied certain motions without a hearing, (2) erred in granting sole legal custody of the minor children to the plaintiff, (3) issued inequitable financial orders, and (4) erred in denying her motions for disqualification of the trial judge. We disagree and affirm the judgment of the trial court.
The following facts, as found by the trial court in a comprehensive memorandum of decision, are relevant. The parties were married in 1989. At the time of trial in 2014, the plaintiff was fifty years old and working as a letter carrier for the United States Postal Service. The defendant was forty-nine years old and working as a juvenile probation officer. The plaintiff‘s work schedule was inflexible. The defendant‘s schedule was comparatively flexible and she historically had been the primary parental figure in the children‘s lives. The parties have two children, the first born in 1998 and the second in 2002. At the time of trial, the defendant was residing alone at the marital home in Fairfield and the plaintiff was residing in a condominium in Monroe with the two children.
Following a trial, the court issued a memorandum of decision on March 17, 2014. A principal issue in the trial was the defendant‘s use of alcohol. The court did not credit the defendant‘s testimony that she did not drink much, although she said that she did use alcohol to cope with an emotionally abusive husband. The court, rather, fоund that the defendant had abused alcohol for a long period of time, at least since 2006. John Mager, the children‘s guardian ad litem, testified that the children had reported to him that the defendant had driven while intoxicated with them in the car on more than one occasion. On December 31, 2011, the defendant became intoxicated and was hospitalized. Mager testified that the hospital records indicated that the defendant‘s blood alcohol level was .448 when she was admitted and that the defendant reported to intake staff that she routinely drank large amounts of vodka daily for the majority of her adult life. Michael Reitman, who was licensed as a clinical social worker and an alcohol and drug counselor, had treated the defendant since January, 2012. The defendant refused any other form of treatment and Reitman continually had urged the defendant to reconsider her refusal. Since December 31, 2011, the defendant had been successful in maintaining her sobriety, but continued to minimize her difficulty with alcohol.
The children preferred to have very little or no contact with the defendant. The court found that the best interests of the children required orders granting sole legal and physical custody to the plaintiff, that the defendant maintain her sobriety, and that the children maintain a relationship with both parents. The court so ordered and further specified that on a three week rotating basis the defendant was to have visitation with the younger child for three hours the first week, the older child for three hours the second week, and both children for three hours the third week. The court ordered that the children, thе plaintiff and, at an appropriate time, the defendant, were to engage in counseling with the “goal and expectation that the parental access between the defendant and the minor children shall increase over time.” The court also ordered that the defendant refrain from alcoholic beverages and submit to random alcohol testing; either a positive test or a failure to take a test would result in cancellation of that week‘s visitation.
The court further ordered the defendant to pay $252 weekly in child support to the plaintiff and ordered that the parties share unreimbursed medical, dental and child care expenses. The plaintiff was to pay 53 percent and the defendant 47 percent. The court ordered that the parties’ deferred income was subject to equitable distribution. The court did not order alimony. This appeal followed.
I
The defendant first claims that her right to due process was violated when the court denied without a hearing her motion for a continuance, her “motion to open and set aside judgment and for new trial,” her motion to reargue/reconsideration, and her motion for clarification.1 We disagree.
Prior to the start of trial, and almost two years after the plaintiff initiated the action, the defendant filed a motion for a
After the memorandum of decision was issued, the defendant filed several motions. One was entitled “motion to open and set aside judgment and for new trial.” In that motion she argued that a new trial was warranted because her trial counsel was “ineffective” in that he failed to prepare adequately for trial and engaged in “threatening behaviors.” She further claimed that Mager, the guardian ad litem, “рrovided dishonest testimony throughout the trial.” With respect to this issue, the defendant argued that Mager falsely had testified that he had spoken with Reitman. The defendant highlighted the court‘s finding that “[Mager] testified that in his discussion with Reitman, the therapist had reported that he had recommended more intensive type treatments and that he had recommended that [the defendant] attend [Alcoholics Anonymous]. The defendant refused any other form of treatment and Reitman reported to [Mager] that he had continued to urge her to reconsider that decision.” The defendant attached to the motion an affidavit by Reitman averring that he had neither spoken to nor met with Mager. She also noted the court‘s finding that “[i]t was only through the efforts of [Mager] . . . that vital information from the St. Vincent‘s Hospital records wеre brought to the court‘s attention.” She argued that the hospital records were not introduced into evidence and Mager “testified to the contents of the record that were completely made up and false. Another willful act of perjury . . . .” The court denied the motion for clarification.
The defendant also filed a motion to reargue, which claimed “ineffective counsel and fraudulent testimony” by Mager. This motion was denied.
The defendant filed a motion for clarification in which she stated that the court denied her “motion to open and set aside judgment and for new trial” without a hearing, and asked the court to clarify the legal basis upon which the court denied that motion. The court also denied this motion.
The defendant argues that “[a]s a matter of law, the trial court‘s . . . failure to afford a hearing on the defendant‘s motion for a continuance, motion to reopen judgment for a new trial based on perjury and ineffective counsel, motion to reargue/reconsider, and motion for clarification deprived the [defendant of her due process right] to be heard.” Pursuant to
The defendant focuses her substantive argument regarding the disposition of her motions on her motion to open. She argues that Mager‘s “testimony throughout the trial, while being under oath, was deceitful and willfully dishonest. That the defendant‘s counsel did not properly cross-examine [Mager] despite the defendant asking him to do so. In addition, the defendant‘s hospital records were never introduced as evidence. Yet, [Mager] dishonestly testified as to the contents of the record. Said testimony was completely fraudulent and deceitful. The trial court . . . relied on [Mager‘s] false testimony. This resulted in significant harm being done to the defendant and her minor children. . . . It is clear in the memorandum of decision that the court based its recommendation on the testimony of [Mager]. However the new evidence clearly shows the court that a new trial would produce a different outcome, in light of the fact that a kеy witness for the plaintiff has committed acts of perjury.”
The defendant presents two grounds for her argument that Mager‘s testimony was “fraudulent.” First, she points to the court‘s statement in its memorandum of decision regarding Mager‘s testimony during trial. The court stated that Mager had testified that, during a discussion he had had with Reitman, Reitman indicated that he had urged the defendant to attend Alcoholics Anonymous and had also suggested that the defendant needed more treatment than what was being provided, but she refused. The statement, deemed fraudulent by the defendant, was never made. Although Mager testified about the underlying facts, he did not testify that he learned about the facts through a conversation with Reitman. That the court apparently incorrectly attributed the information in its memorandum of decision does not necessarily undermine the judgment; the manner in which Mager obtained this information is not a fact material to this case, and, thus, the finding as to attribution is harmless.3 See Lambert v. Donahue, 78 Conn. App. 493, 507, 827 A.2d 729 (2003) (“Where . . . some of the facts found [by the trial court] are clearly erroneous and others are supported by the evidence, we must examine the clearly erroneous findings to see whether they were harmless, not only in isolation, but also taken as a whole. . . . If, when taken as a whole, they undermine appellate confidence in the court‘s fact finding process, a new hearing is required.” [Internal quotation marks omitted.]).
Second, the defendant states that Mager‘s testimony as to the contents of the
II
The defendant next claims that the court erred in granting sole legal custody of the minor child to the plaintiff.5 We disagree.
“It is statutorily incumbent upon a court entering orders concerning custody or visitation or a modification of such order to be guided by the best interests of the child. . . . In reaching a decision as to what is in the best interests of a child, the court is vested with broad discretion and its ruling will be reversed only upon a showing thаt some legal principle or right has been violated or that the discretion has been abused.” (Citation omitted; internal quotation marks omitted.) Stahl v. Bayliss, 98 Conn. App. 63, 68, 907 A.2d 139, cert. denied, 280 Conn. 945, 912 A.2d 477 (2006).
“(b) In making or modifying any order as provided in subsection (a) of this section, the rights and resрonsibilities of both parents shall be considered and the court shall enter orders accordingly that serve the best interests of the child and provide the child with the active and consistent involvement of both parents commensurate with their abilities and interests. Such orders may include, but shall not be limited to . . . (3) the award of sole custody to one parent with appropriate parenting time for the noncustodial parent where sole custody is in the best interests of the child; or (4) any other custody arrangements as the
“(c) In making or modifying any order as provided in subsections (a) and (b) of this section, the court shall consider the best interests of the child, and in doing so may consider, but shall not be limited to, one or more of the following factors: (1) The temperament and developmental needs of the child; (2) the capacity and the disposition of the parents to understand and meet the needs of the child; (3) any relevant and material information obtained from the child, including the informed preferences of the child; (4) the wishes of the child‘s parents as to custody; (5) the past and current interaction and relationship of the child with each parent, the child‘s siblings and any other person who may significantly affect the best interests of the child; (6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders; (7) any manipulation by or coercive bеhavior of the parents in an effort to involve the child in the parents’ dispute; (8) the ability of each parent to be actively involved in the life of the child; (9) the child‘s adjustment to his or her home, school and community environments; (10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the child‘s family home pendente lite in order to alleviate stress in the household; (11) the stability of the child‘s existing or proposed residences, or both; (12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the prоposed custodial arrangement is not in the best interests of the child; (13) the child‘s cultural background; (14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child; (15) whether the child or a sibling of the child has been abused or neglected, as defined respectively in section 46b-120; and (16) whether the party satisfactorily completed participation in a parenting education program established pursuant to section 46b-69b. The court is not required to assign any weight to any of the factors that it considers, but shall articulate the basis for its decision. . . .”
The defendant argues that Mager‘s testimony relevant to the child‘s best interests was erroneous and should not have been relied on by the court. She claims he was mistaken in testifying, inter alia, that she had been drinking during the majority of her adult life, including large amounts of vodka daily, and in reporting that the children had no desire to have contact with her.6 She also contends that the court ignored
The defendant essentially requests us to reassess the credibility of witnesses. “[I]t is well established that the evaluation of a witness’ testimony and credibility are wholly within the province of the trier of fact. . . . An appellate court must defer to the trier of fact‘s assessment of credibility because [i]t is the [fact findеr] [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom.” (Citation omitted; internal quotation marks omitted.) Schoenborn v. Schoenborn, 144 Conn. App. 846, 851, 74 A.3d 482 (2013). The court found the testimony of Mager credible and the testimony of the defendant and her family, to the effect that her issues with alcohol were recent phenomena and were caused by the behavior of the plaintiff, not credible. We decline to second-guess this determination.
The court found that the defendant had been successful in maintaining her sobriety since January, 2012, but she continued to minimize the significance and extent of her alcohol related difficulty. The court noted that it did not credit the testimony of the defendant or her family that her issues with alcohol were a short term reaction to circumstances. The court stated that it was not ignoring emotional abuse by the plaintiff, but that the defendant‘s placing blame elsewhere for her alcohol issues only placed her and the children at greater risk and prevented healing between the defendant and the children.7 The court, on the other hand, noted that the plaintiff encouraged the children‘s negative attitude toward the defendant and contributed to the breakdown of the marriage. The court nevertheless found that the children reported their feelings about the defendant in very negative terms, even when the defendant was the primary parent and the plaintiff was not interfering. The court found that the children considered the defendant‘s actions to be harmful to them. The court stated that the “strong and consistent preference” of the children was to have “very limited contact with the defendant.”
The court concluded that, despite the children‘s preference, “the best interests of the children are served here by having a meaningful relationship with both parents.” The court discussed the difficulty in achieving that goal in light of the strong views of the children and the facts that at least one child was almost sixteen at the time of trial and the children had not experienced helpful therapy during the pendency of trial. The court concluded by noting that “the defendant‘s request for joint legal custody is shocking based on the reality of this case and truly demonstrates the defendant‘s total lack of insight into her children and the impact her alcoholism has had on them. . . . She and the plaintiff have not been able to communicate
It is clear that the court carefully examined all of the evidence, analyzed the
III
The defendant next claims that the court erred in its distribution of the marital assets. We disagree.
“[T]his court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. . . . [T]he foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case . . . . In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action.” (Citation omitted; internal quotation marks omitted.) Misthopoulos v. Misthopoulos, 297 Conn. 358, 366–67, 999 A.2d 721 (2010).
The defendant argues essentially that she is unable to comply with the financial orders that she pay $252 weekly in child support, 47 percent of all unreimbursed/uncovered medical/dental expenses, 47 percent of all reasonably necessary child care, and her share of the expenses required to place the marital home on the market.8 She contends that she has been ordered to pay “child support twice” because, in addition to the $252 weekly child support, she would expect to spend additional money on the children during visitations. She further argues that her recent retirement9 cаused a decrease in her income and that she is unable to pay the amount required under the financial orders.10
IV
The defendant last claims that the court abused its discretion in denying her motions for recusal. We disagree.
“Canon 3 (c) of the Code of Judicial Conduct governs judicial disqualification. That canon provides in relevant part that (1) A judge should disqualify himself or herself in a proceeding in which the judge‘s impartiality might reasonably be questioned, including but not limited to instances where: (A) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding . . . . Canon 3 (c) thus encompasses two distinct grounds for disqualification: actual bias and the appearance of partiality. The appearance and the existence of impartiality are both essential elements of a fair trial. . . . As such, [t]o prevail on its claim of a violation of this canon, [a party] need not show actual bias. The [party] has met its burden if it can prove that the conduct in question gave rise to a reasonable appearance of impropriety.” (Internal quotation marks omitted.) McKenna v. Delente, 123 Conn. App. 137, 143, 1 A.3d 260 (2010). “A trial court‘s ruling on a motion for disqualification is reviewed for abuse of discretion. . . . In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court‘s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) In re Christopher C., 134 Conn. App. 464, 471-72, 39 A.3d 1122 (2012).
The defendant asked Judge Adelman several times to recuse himself. At a hearing held on February 13, 2015, regarding the plaintiff‘s motion to vacate the appellate stay, the defendant requested Judge Adelman to “permanently recuse [himself] from my case.” After hearing from the defendant, the court stated: “[Y]ou‘ve repeatedly made claims that I‘m biased against you, primarily because I‘ve ruled against you, although I have also entered rulings in your favor. . . . If someone rules against you or does something that is adverse to your position you immediately assume that person is biased against you. I certainly regret that you have that opinion. I‘ve certainly done everything I can to give
The defendant argues on appеal that the court engaged in behaviors showing bias against her, such as transferring the case to Bridgeport when he was assigned to Bridgeport, denying her rights to due process, relying on the testimony of Mager, and making certain comments at a July 11, 2014 hearing held on various postjudgment motions,13 and engaging in retaliation against her for expressing her concerns about the guardian ad litem system. The citations to the record referenced in her brief and the motions for disqualification to which the defendant directs our attention suggest that the defendant‘s argument of bias stems largely from the court‘s rulings that were adverse to her.14 “[T]he fact that a
The judgment is affirmed.
In this opinion the other judges concurred.