KAREN ZILKHA v. DAVID ZILKHA
(AC 36499)
Connecticut Appellate Court
Argued March 9—officially released August 11, 2015
Lavine, Prescott and Pellegrino, Js.
(Appeal from Superior Court, judicial district of Stamford-Norwalk, Shay, J.)
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Norman A. Roberts II, with whom, on the brief, was Antony L. Cenatiempo, for the appellee (guardian ad litem).
PELLEGRINO, J. The defendant, David Zilkha, appeals from the judgment of the trial court, dispersing escrow money held from settlement funds received from his former employer to pay postjudgment fees to the guardian ad litem, the attorney for the minor children, and a custody evaluator.1 On appeal, the defendant claims that the court (1) lacked authority to distribute the funds because the judgment of dissolution was never opened, and (2) improperly prohibited the defendant from testifying about his observations of the guardian ad litem’s alleged improper conduct. We reverse the judgment in part with regard to the portion of the order requiring the distribution of the escrow money, and affirm it in all other respects.
The following facts and procedural history are relevant to our resolution of the defendant’s claims. The plaintiff, Karen Zilkha, and the defendant were married on June 7, 1998. The plaintiff brought an action for dissolution of the parties’ marriage, and a judgment of dissolution was rendered on May 31, 2005, incorporating by reference a separation agreement and a stipulation of the parties.
On November 14, 2008, the plaintiff filed a motion to open and set aside the dissolution judgment. The plaintiff’s motion alleged that, during the pendency of the dissolution action, the defendant fraudulently failed to disclose a claim that he had against his former employer.2 At the time the motion was filed, the defendant had already received $1,400,000 as a part of a settlement with his former employer regarding this claim, and a final payment of $700,000 was due to be paid to him in April, 2009. On April 9, 2009, the plaintiff filed an amended motion, requesting that the court order the defendant to escrow the $700,000 final payment.
On April 24, 2009, the plaintiff filed an ex parte motion for a temporary injunction to ‘‘[restrain] [the defendant] from moving, or in any way transferring the money set to be transferred to him on April 30, 2009 . . . .’’ The court denied the ex parte motion, but held a hearing on April 28, 2009, to permit all parties to be heard. At this hearing, the court granted the plaintiff’s motion, ordering that $250,0003 of the April 30, 2009 payment be held in escrow pending the outcome of the plaintiff’s postjudgment motion to open. As of the April, 2009 hearing, the court had not held an Oneglia hearing4 on the plaintiff’s motion to open.5 The court explained the purpose of putting the funds in escrow, and the amount of the funds, by stating that it ‘‘wanted to at least preserve what [it] think[s] would be a sufficient portion, so that if [the plaintiff] prevails, ultimately, then there’s something at the end of that particular process.’’ (Emphasis added.)
On September 10, 2012, the attorney for the minor children filed a postjudgment motion for fees and retainers in order to compel the payment of present and future fees for himself, as well as for the guardian ad litem and the custody evaluator.6 The court held a hearing on the motion over the course of six days, concluding on September 25, 2013. The court issued its memorandum of decision on November 19, 2013. In it, the court stated: ‘‘In general, in a family matter, an award of attorney’s fees is within the discretion of the court, and in making a determination as to whether or not to grant such a request, the court must look at the financial abilities of the parties and apply the criteria set forth in
I
The defendant first claims that the court lacked authority to distribute the escrow funds because the judgment of dissolution had not been opened. The defendant argues that the court’s ruling at the conclusion of the Oneglia hearing only permitted the plaintiff
We begin by setting forth the applicable standard of review. The defendant in this case presents a situation in which he claims the court acted without authority. ‘‘[O]ur review of challenges to the authority of the court to act is plenary.’’ Hogan v. Lagosz, 147 Conn. App. 418, 433, 84 A.3d 434 (2013); see also Brody v. Brody, 153 Conn. App. 625, 630, 103 A.3d 981, cert. denied, 315 Conn. 910 (2014).
‘‘Pursuant to
‘‘A marital judgment based upon a stipulation may be opened if the stipulation, and thus the judgment, was obtained by fraud.’’ (Citation omitted; internal quotation marks omitted.) Reville v. Reville, 312 Conn. 428, 441, 93 A.3d 1076 (2014); see also Billington v. Billington, 220 Conn. 212, 217–18, 595 A.2d 1377 (1991); Spilke v. Spilke, 116 Conn. App. 590, 595, 976 A.2d 69, cert. denied, 294 Conn. 918, 984 A.2d 68 (2009); Mattson v. Mattson, 74 Conn. App. 242, 245, 811 A.2d 256 (2002).
We conclude that the court lacked authority to order distributions from the escrow account to pay the attorney for the minor children, the guardian ad litem, and the custody evaluator.
II
The defendant next claims that the court improperly prohibited him from testifying as to his observations regarding the guardian ad litem’s alleged improper conduct.12 The defendant argues that the court improperly denied him an opportunity to testify about relevant and material conduct on the part of the guardian ad litem as part of his effort to reduce the amount of fees she was to receive. The guardian ad litem contends that the defendant did not adequately preserve or brief this claim. Alternatively, the guardian ad litem argues that, if the merits of the claim are reached by this court, the testimony was restricted properly and the court therefore did not abuse its discretion. Reaching the merits of the claim, we agree with the guardian ad litem.13
The following additional facts are relevant to our resolution of this claim. In the defendant’s direct examination during the hearing on the attorney for the minor children’s motion, on July 17, 2013, the defendant’s counsel asked the defendant for his opinion on what the guardian ad litem had done that he thought was improper since January, 2012. The defendant responded that ‘‘[the guardian ad litem] could have done more . . . .’’ The court then interjected and stated: ‘‘No, no. Not could have. [The question] is what did she do that was improper.’’ The defendant responded: ‘‘I believe, it’s been improper not to do more to get me back with my children. I mean, essentially, she’s done nothing to get me back with my children.’’ After this statement by the defendant, the court explained at length the roles of the guardian ad litem and the attorney for the minor children, specifically articulating that they do not work for the parties, they work for the court and the children, respectively. The court further explained that ‘‘just because you believe [that] they are not advocating for you to exercise your visitation rights with your children, that’s not improper conduct. And I just want that on the record. And it’s important that litigants understand
The court then stated that the original question by the defendant’s counsel asking for the defendant’s opinion on the guardian ad litem’s alleged improper conduct was ‘‘out of line’’ and ‘‘ludicrous.’’ On the record, the court explained the proper way in which to produce such evidence: ‘‘[T]o ask a witness who, obviously, has a bias toward his position—and who is very frustrated with a ten year old case, as I would be too—to ask him to opine and to say that this attorney did something improper I think that that is really pushing the boundaries. . . . [W]e all should know better than that and that’s improper. But there’s a proper way to get that. So if your client feels that for some reason that [the guardian ad litem] or [the attorney for the minor children] for whatever reason did not . . . comply with the terms or if they were part and parcel of that agreement, then you know the proper way to do it. But this [is] totally improper and it’s unacceptable and it’s not right. I will not tolerate it.’’
On September 23, 2013, the defendant filed a corrected motion for an articulation regarding the court’s conclusions at the July 17, 2013 hearing concerning the alleged improper conduct of the guardian ad litem and the court’s reference to the guardian ad litem as a ‘‘consummate professional.’’14 In this motion, the defendant set forth seven acts of the guardian ad litem that he believed were improper and that fell below the standard necessary to qualify as sufficient performance.15 The court heard argument on the motion on September 24, 2013, and denied the motion for articulation. The court then issued its memorandum of decision on November 19, 2013, finding that the fees of the guardian ad litem and the attorney for the minor children were reasonable.
We first set forth the applicable standard of review. ‘‘Unless an evidentiary ruling involves a clear misconception of the law, the [t]rial court has broad discretion in ruling on the admissibility . . . of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling . . . .’’ (Internal quotation marks omitted.) Dinan v. Marchand, 279 Conn. 558, 567, 903 A.2d 201 (2006). ‘‘The principal distinction between lay and expert witnesses is that the former is restricted, with limited exceptions, to providing factual testimony, while the
Here, the trial court properly precluded the defendant’s counsel from eliciting testimony regarding the defendant’s opinion as to the propriety of the conduct carried out by the guardian ad litem.
The judgment is reversed only as to the disbursement of funds from the escrow account and that portion of the order is vacated. The judgment is affirmed in all other respects.
In this opinion the other judges concurred.
Notes
We disagree with the guardian ad litem that the defendant was obligated to appeal or file an amended appeal from other escrow distributions in order to withstand a mootness challenge to this appeal. ‘‘The test for determining mootness of an appeal is whether there is any practical relief this court can grant the appellant. . . . [I]t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. . . . If no practical relief can be afforded to the parties, the appeal must be dismissed.’’ (Internal quotation marks omitted.) Taylor v. Zoning Board of Appeals, 71 Conn. App. 43, 46, 800 A.2d 641 (2002). The defendant arguably, having not appealed the December 4, 2013 order, does not challenge the award of fees to Israel and Smith to be paid from the escrow account. This does not affect whether the defendant can obtain practical relief in his appeal from the November 19, 2013 judgment of the court as discussed in this opinion.