2 Conn. App. 650 | Conn. App. Ct. | 1984
The plaintiff wife filed a complaint and the defendant husband filed a counterclaim, both seeking dissolution of their marriage, custody and support of their three minor children,1 alimony, and conveyance of the other party's interest in the family home. After a hearing lasting four days, the court, M. Hennessey, J., filed a memorandum of decision and rendered a judgment dissolving the marriage, committing custody of the children to the plaintiff, conveying the defendant's interest in the family home to the plaintiff, and making other financial orders. Subsequently, the defendant *652 moved to modify the support orders, which the court, Quinn, J., granted in part and denied in part. The defendant appealed.2
Two days after the filing of the memorandum of decision and the rendering of the judgment, the defendant filed written motions for a new trial, to open the judgment, and to reargue the entire case. The common gist of these three motions, which were substantially identical, was that, in making its custody decisions and its decision as to the family home, the court failed to consider the evidence; that in making its financial orders as to support for the children, the court disregarded the evidence; that the defendant was denied a fair trial because of a bias by the court in favor of the plaintiff; and that certain evidentiary rulings made by the court during the trial were erroneous.
When these written motions came before the court, the defendant's counsel opened by expressing "concern" as to whether Judge Hennessey should be disqualified from hearing the motions, and orally requested an evidentiary hearing on whether Judge Hennessey should be disqualified. This "concern" ripened into an oral motion for Judge Hennessey to disqualify herself from hearing the written motions, and the defendant's counsel then orally moved that the evidentiary hearing be before another judge. These oral motions were denied. *653
The record indicates that the defendant was claiming an actual, undisclosed bias in favor of women on the part of Judge Hennessey in deciding this case. The defendant argues in effect that he made a sufficient offer of proof of bias by Judge Hennessey to require an evidentiary hearing on his claim; and that, having done so, Canon 3 C (1)(d) (iv) of the Code of Judicial Conduct3 required that Judge Hennessey disqualify herself because she might be a witness in that evidentiary hearing. We disagree.
An accusation of bias or prejudice "against a judge . . . `strikes at the very core of judicial integrity and tends to undermine public confidence in the established judiciary.'" Cameron v. Cameron,
Our Supreme Court has indicated that, where there is a factual dispute involved in a claim of judicial bias, an evidentiary hearing may be in order, and it has implied that such a hearing be before another judge. See Papa v. New Haven Federation of Teachers,
"In Connecticut, the disqualification of judges is governed by General Statutes
Although Canon 3 C states the substantive norm for disqualification; see footnote 3, supra; it does not articulate the procedural standards which a litigant must meet in order to set in motion such a momentous mechanism as an evidentiary hearing on such a serious claim as actual bias on the part of the trial judge. Nor does our prior case law shed much light. All that is clear is that the litigant must "[raise] the question of disqualification in a timely and appropriate manner." Dacey v. Connecticut Bar Assn., supra, 28.
It may be that, by waiting until the outcome of the trial, the defendant did not timely assert his claim and that he thus waived it. See Krattenstein v. G. Fox
Co.,
Other jurisdictions have statutes or rules of court which prescribe the procedural requirements for raising a claim of judicial disqualification. See, e.g., 46 Am.Jur.2d, Judges 209-15. In the absence of such prescriptions, the procedure to be employed must take into account various principles which may, at times, compete with each other. Among these principles are: (1) that the integrity of the judicial system requires both *655 the fact and the appearance of impartiality; see Papa v. New Haven Federation of Teachers, supra, 744-46; (2) that a party who has a good faith belief, grounded on facts, that a judge is biased is entitled to demonstrate that bias; and (3) that the due administration of justice requires that such a demonstration be based on more than opinion or conclusion.
The federal procedure requires, inter alia, that a statement of the facts and reasons upon which the claim for disqualification is based, be presented initially to the judge whose disqualification is sought. That judge must then, taking the facts stated as true, pass on their legal sufficiency for disqualification; and, if those allegations "give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment," the judge is disqualified without further inquiry into the truth of the facts alleged. Berger v. United States,
We believe that this procedure provides a useful starting point for articulating the procedural requirements which a litigant in this state must meet in order to obtain an evidentiary hearing on a claim of actual bias. In view of our Supreme Court's indication, however, that, when facts are controverted, an evidentiary hearing into the claim of bias is appropriate; Papa v. New *656 Haven Federation of Teachers, supra, 750-54; we also believe that the proper balance among the various competing principles is struck by requiring the party asserting the bias of the judge to state facts on the record which, if true, give fair support to his claim. If those facts, taken as true, give that fair support, the party is entitled to an evidentiary hearing on those facts before another judge.
Applying this standard to the defendant's offer of proof here, we find that it falls far short of indicating fair support for the defendant's claim that Judge Hennessey was biased. It was no more than a compendium of vague and unverified assertions relating to a remark which Judge Hennessey had allegedly made, before the trial in chambers, concerning her background, to some opinions of her held by six or seven unnamed attorneys, and to an unspecified reason for some unspecified judicial assignment. This offer of proof was grossly deficient. Such vague and unverified assertions of opinion and speculation are nowhere near factually sufficient to trigger an evidentiary hearing into a judge's impartiality. Taken as true, whether singly or together, these assertions do not give fair support to a claim of either actual or apparent bias in favor of women on the part of Judge Hennessey. Moreover, we have carefully reviewed the transcript of those portions of the trial supplied to us in connection with this appeal, and we see no evidence whatsoever that Judge Hennessey conducted the trial in anything but a completely fair and impartial manner.
The judgment ordered the defendant "to contribute $150 per week and $150 on the first day of each month towards the mortgage, as support for the three children . . ." While it is true that the plaintiff's expenses on the mortgage may have remained the same regardless of whether there were two or three minor children in her custody, it is clear that the monthly mortgage contribution order was aimed at the defendant's legal obligation to bear a proportional part of the burden of shelter expense being borne by the plaintiff as custodian *660
of the oldest minor child. When that child reached the age of eighteen, the defendant no longer could be charged with that expense. See Cariseo v. Cariseo,
There is error only with respect to the order of the court dated December 4, 1981, that the mortgage contribution payments are to remain in effect, the judgment is set aside as to that order and the case is remanded with direction to modify the judgment by reducing the mortgage contribution payments to $100 per month effective the week of December 16, 1981.
In this opinion the other judges concurred.