195 Conn. 202 | Conn. | 1985
The plaintiff, Brenda J. Timm, brought this action to dissolve her marriage to George W. Timm. On April 28,1983, the case was tried before Hon. Eli L. Cramer, state trial referee. Prior to the
I
On the issue of trial court predisposition the defendant alleges that the several settlement conferences held before and during trial may have caused the trial referee to become so predisposed that he should have disqualified himself.
When a civil case is to be tried before a jury, participation by the trial judge in pretrial settlement discussions is not likely to be raised as an issue for the purpose of disqualification of the judge. When a judge engages in a pretrial settlement discussion in a court case, he should automatically disqualify himself from presiding in the case in order to eliminate any appearance of impropriety and to avoid subtle suspicions of prejudice or bias. Canons 2, 3 (C) (1), Code of Judicial Conduct. If, however, all parties agree on the record, and stipulate that the judge may preside, then the infirmity is cured. See General Statutes § 51-39 (c) (“When any judge is disqualified to act in any proceeding before him, he may act if the parties thereto consent in open court.”).
In the present case, although the parties did not expressly agree that the trial referee could preside, there is no evidence that defense counsel objected to
The second issue raised by the defendant challenges the court’s conclusion that an unallocated award of $400 per week for alimony and child support be changed after three years to support payments of $300 per week. The defendant contends that there is no evidence to justify an allocation of $300 toward child support, since there was no inquiry into the individual needs of the children. He maintains that the plaintiff’s financial affidavit is insufficient since it contains only unallocated expenses and fails to specify what portion of the expenses relate to the children’s needs. He further claims that the subsequent child support order is inequitable because the plaintiff will receive a reduction in her taxes while the defendant’s tax burden will be increased. The plaintiff argues that the trial court did not abuse its discretion in ordering the payment, since it heard substantial testimony regarding the financial needs of the parties, observed the witnesses’ demeanor on the stand, and was able to evaluate all of the evidence. She further points out that the initial financial award was unallocated for tax reasons favorable to the defendant.
Trial courts have a distinct advantage over appellate courts in dealing with domestic relations because all of the surrounding circumstances as well as the appearance and attitude of the parties are observable by the court. deCossy v. deCossy, 172 Conn. 202, 204, 374 A.2d 182 (1977). The action of the trial court is not to be disturbed unless legal discretion is abused, and “ [i]n determining this the unquestioned rule is that “great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness.” Dudas v. Ward Baking Co., 104 Conn. 516, 518, 133 A. 591 [1926]; Roma v. Thames River Specialties Co., 90 Conn. 18, 20, 96 A. 169 [1915].’ ”
There were many factors which were considered by the trial court in awarding child support, including the age of the children, the needs of the family, the financial affidavits of both parties, any anticipated increases in the income or change in circumstances of the parties, such as the probability that the plaintiff would be in a position to become gainfully employed after a three year period, the tax implications, and the appearance and attitude of the parties. The additional financial orders of the court were extensive and thorough and related to an escrow account balance from the sale of a jointly owned house, tax and other refund checks, life insurance policies, transfer of automobile ownership, and the defendant’s stock ownership and pension plan. It is apparent that the court had before it the financial affidavits of both parties, had heard arguments from counsel as to tax implications, and was in a position to observe the witnesses testify as to available resources and the needs of the plaintiff and the children.
In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. E. M. Loew’s Enterprises, Inc. v. Surabian, 146 Conn. 608, 611, 153 A.2d 463 (1959). “The amount of an award for the support of children incident to a divorce is a matter within the sound discretion of the trial court and will not be disturbed unless the discretion appears to have been abused.” Riccio v. Riccio, 153 Conn. 317, 319, 216 A.2d 431 (1966); see Shrager v. Shrager, 144 Conn. 483, 486, 134 A.2d 69 (1957). It is further recognized that an order for the support of minor children is not based solely on the needs of the children but takes into account what the parent can afford to pay. Fowler v. Fowler, 156 Conn. 569, 572, 244 A.2d 375 (1968). We
Ill
The third and final claim of the defendant is that the court erred in awarding custody of the parties’ two minor children to the plaintiff after both parties had agreed to joint custody. The defendant claims that even though the plaintiff may have appeared uncertain during the course of the trial as to whether or not she felt joint custody should be ordered, her concluding testimony was that she believed it in the best interests of the children that an award of joint custody be entered.
The ultimate decision as to joint custody rests with the trier of fact and must be based on all of the testimony and factors that are properly brought before the court, including the ability of the trier to observe the demeanor and manner in which the witnesses answer pertinent questions. In reaching a judgment with regard to custody, the trier must consider not only the final answer to a question but also the entire evidentiary fabric that has been established at the trial.
The trial court’s determination whether to award joint custody must take account of General Statutes § 46b-56a (b). That statute states: “There shall be a presumption, affecting the burden of proof, that joint custody is in the best interests of a minor child where the parents have agreed to an award of joint custody or so agree in open court at a hearing for the purpose of determining the custody of the minor child or children of the marriage. If the court declines to enter an order awarding joint custody pursuant to this subsection, the court shall state in its decision the reasons for denial of an award of joint custody.” This section does not mandate joint custody; it only creates a presumption that joint custody would be in the best interests of a minor child under certain circumstances. It is still for the trial court to decide whether joint custody has been agreed to by the parties. The statute at most requires the trial court to state in its decision any reasons for denial of an award of joint custody. It appears then that the sole question before us is whether or not the trial referee, in applying this statute, could reasonably have concluded as he did.
“ ‘[Jjudicial review of a trial court’s exercise of its broad discretion is limited to the questions of whether the court correctly applied the law and could reasonably have concluded as it did. E.g., Smith v. Smith, 185 Conn. 491, 494, 441 A.2d 140 (1981); Basile v. Basile, 185 Conn. 141, 144, 440 A.2d 876 (1981); McGuinness v. McGuinness, 185 Conn. 7, 13, 440 A.2d 804 (1981).’ Beede v. Beede, 186 Conn. 191, 194-95, 440 A.2d 283 (1982).” Dubicki v. Dubicki, 186 Conn. 709, 713, 443 A.2d 1268 (1982). The weight given the evidence before it is within the sole province of the trial court. Beede v. Beede, supra, 195. It is the opinion of this court that the trial court could reasonably have concluded, under the circumstances of this case, that a joint custody award was neither agreed upon nor in the best interests of the minor children.
We find no error.
In this opinion the other judges concurred.
Although these conferences were not transcribed, the record indicates that the parties stipulated that at the several conferences occurring before and during trial suggestions for settlement were made to the parties by the trial referee.
The plaintiff testified on redirect examination as follows:
“Q. Mrs. Timm, in the course of this two day trial and all the evidence that has come before you, have you experienced any confusion about the custody issue in your own mind?
“A. Yes, I have, quite a lot.
“Q. What is your feeling today about the Court awarding joint custody to the parties?
“A. I still think it’s in the best interest of the children, that joint custody is best.
“Q. And so, would you be willing to leave it to the Court’s discretion if the Court feels that joint custody is in the best interest of the children, having heard all the evidence?
“A. Yes I would.
“Q. That it should be awarded?
“A. Yes it would.”
The attorney for the minor children testified as follows:
“Q. Your recommendation, I assume, would be for joint custody in this case, if it could be achieved by agreement of the parties?
“A. That’s correct.
“Q. And your recommendation to the Court, if the Court were able to award joint custody in this case, would be that such custody be awarded?
“A. Yes, I think it would be an appropriate order.”