Barca v. Barca

• Decision Date: 23 August 1988
• Docket Number: No. 5754,5754
• Citation: 546 A.2d 887,15 Conn.App. 604
• Court: Connecticut Court of Appeals
• Parties: Adele P. BARCA v. Angelo BARCA.

Page 887

546 A.2d 887

15 Conn.App. 604

Adele P. BARCA v. Angelo BARCA.

No. 5754.

Appellate Court of Connecticut.

Argued Feb. 18, 1988.

Decided Aug. 23, 1988.

Wesley W. Horton, with whom were Susan M. Cormier, Hartford, and, on the brief, Claudia J. Marchak, New Milford, for appellant (defendant).

Robert V. Cimmino, Sherman, for appellee (plaintiff).

Before DALY, BIELUCH and FOTI, JJ.

FOTI, Judge.

The defendant husband appeals from a judgment dissolving the parties' marriage and granting certain other relief. The sole issue raised by this appeal is whether the trial judge exhibited a preconceived bias against the defendant and, as a result, should have, sua sponte, recused herself from the proceedings. We find no error.

The plaintiff filed a complaint and the defendant filed a cross complaint; each sought the dissolution of the twenty year marriage and conveyance of the other's undivided half interest in the family home. ¹ In addition, the plaintiff requested custody of and support for the minor child, ² alimony ³ and the assignment of half of all of the defendant's assets. In the pleadings, both parties agreed that the marriage had irretrievably broken down; neither party alleged that the other was at fault. At trial, however, each party claimed that the other was to blame for the breakdown of the marriage.

After a two day trial to the court, in an oral decision the court found that the marriage had broken down irretrievably due to the defendant's physical abuse of the plaintiff. As to the financial awards, the court assigned the defendant's undivided half interest in the real estate, including its furnishings, to the plaintiff and declined to grant either party alimony, counsel fees, or any other relief sought by the parties.

The defendant claims, for the first time on appeal, that the trial judge's actions throughout the course of the trial evidenced a preconceived bias against him, and that the judge should have, sua sponte, disqualified herself. The defendant concedes that this issue was not properly preserved at trial. The defendant argues, however, that the trial court's actions in this proceeding were so extraordinary that he was denied a fair trial and, therefore, in the interests of justice this court should invoke its discretionary authority and find plain error pursuant to Practice Book § 4185. Our review of the record, however, reveals no instance of judicial conduct " 'so obvious that it affect[ed] the fairness and integrity of and public confidence in the judicial proceedings' [which] ... 'result[ed] in an unreliable verdict or a miscarriage of justice.' " Smith v. Czescel, 12 Conn.App. 558, 563, 533 A.2d 223 (1987), quoting State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985).

We note at the outset that Canon 3C (1) of the Code of Judicial Conduct ⁴ "requires a judge to disqualify himself or herself in any proceeding in which his or her impartiality might be questioned." LaBow v. LaBow, 13 Conn.App. 330, 333, 537 A.2d 157 (1988). "[A]s a minister of justice, a trial judge ought to be 'cautious and circumspect in his language and conduct.' " LaBow v. LaBow, supra, quoting Felix v. Hall-Brooke Sanitarium, 140 Conn. 496, 501, 101 A.2d 500 (1953). The trial judge should conduct a trial with the highest degree of impartiality. Id. An accusation that a judge was prejudiced against one party in his or her role as an impartial arbitrator is very serious and "strikes at the very core of judicial integrity and undermine[s] public confidence in the established judiciary." Felix v. Hall-Brooke Sanitarium, supra, 501, 101 A.2d 500. An accusation of this magnitude requires a full review of the record. Szypula v. Szypula, 2 Conn.App. 650, 653, 482 A.2d 85 (1984).

"Disqualification of a trial judge is not dependent upon proof of actual bias. See Darcey v. Connecticut Bar Assn., 184 Conn. 21, 441 A.2d 49 (1981). The 'appearance as well as the actuality of impartiality on the part of the trier' will constitute proof of bias sufficient to invoke disqualification. Cameron v. Cameron, [187 Conn. 163, 170, 444 A.2d 915 (1982) ]. The controlling standard is whether a reasonable person who is aware of all the circumstances surrounding the judicial proceeding would question the judge's impartiality. Papa v. New Haven Federation of Teachers, 186 Conn. 725, 745-46, 444 A.2d 196 (1982); Keppel v. BaRoss Builders, Inc., 7 Conn.App. 435, 440-41, 509 A.2d 51 (1986)." LaBow v. LaBow, supra, 13 Conn.App. at 334, 537 A.2d 157.

As a general rule, even in cases alleging judicial bias, this court will not consider the issue on appeal where the party failed to make the proper motion for disqualification at trial. Practice Book § 4185; Cameron v. Cameron, supra, 187 Conn. at 168, 444 A.2d 915; Trapp v Trapp, 6 Conn.App. 143, 145, 503 A.2d 1187 (1986); Logical Communications, Inc. v. Morgan Management Corporation, 4 Conn.App. 669, 670, 496 A.2d 239 (1985). Such nonaction by a party at trial " 'can be construed as the functional equivalent of "consent in open court" to [the judge's] presiding over the trial.' Timm v. Timm, 195 Conn. 202, 205, 487 A.2d 191 (1985). A litigant must raise the question of disqualification in a timely and appropriate manner; Pavel v. Pavel, 4 Conn.App. 575, 576 n. 2, 495 A.2d 1113 (1985); Jazlowiecki v. Cyr, 4 Conn.App. 76, 78, 492 A.2d 516 (1985); Szypula v. Szypula, [supra, 2 Conn.App. at 653, 482 A.2d 85]; or the claim will be deemed to have been waived. Verissimo v. Verissimo, 3 Conn.App. 222, 224, 486 A.2d 1134 (1985)." Logical Communications, Inc., v. Morgan Management Corporation, supra, 4 Conn.App. at 670, 496 A.2d 239. The rationale for this rule is that parties cannot be allowed " 'to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial....' " Timm v. Timm, supra. ⁵

Only in exceptional circumstances will this court invoke its discretionary authority to review claims not properly preserved at trial under the plain error doctrine. Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 517, 508 A.2d 415 (1986); Cameron v. Cameron, supra; Smith v. Czescel, supra. The defendant argues that the facts of this case are exceptional and, despite his failure to object, present a situation, similar to the Cameron case, where our Supreme Court found, sua sponte, that recusal was required.

In Cameron, the court invoked the plain error doctrine and found that the trial court's conduct was "such a 'serious departure from [the] high standards' of judicial conduct that it should have declared a mistrial sua sponte." Trapp v. Trapp, supra, 6 Conn.App. at 145, 503 A.2d 1187, quoting Cameron v. Cameron, supra, 187 Conn. at 169-70, 444 A.2d 915. In the Cameron case, prior to the defendant taking the stand to testify or presenting any evidence, the trial court accused him of "perpetrating or attempting to perpetrate a fraud" on the court; Cameron v. Cameron, supra at 165, 444 A.2d 915; and of lying under oath at a deposition. Id. at 165-66 n. 2, 444 A.2d 915. When, at the trial court's request, the defendant took the stand to testify, the court, without asking him any questions, immediately placed him in contempt. Id. at 167, 444 A.2d 915. In addition to exhibiting a prejudice against the defendant, the court demonstrated distrust for the defendant's attorney. ⁶

In support of his claim of judicial bias, the defendant in this case points to numerous instances in the transcript where the trial court commented, asked questions and made evidentiary rulings. We have reviewed the record and the entire transcript, and conclude that only the series of questions and comments regarding the defendant's financial record merits discussion. ⁷

In the defendant's affidavit, he listed a debt of $13,896 which he stated was owed to his mother. At the trial, there was substantial testimony, most of it conflicting, about the defendant's characterization of this money as a loan. ⁸ It was in relation to the inconsistent testimony about the source and nature of this debt that the defendant complains the trial judge's conduct demonstrated bias.

The defendant cites the following examples in support of this argument. First, during the cross-examination of the plaintiff, the trial court characterized the money the defendant had received from his father in the following manner: "The check that you're talking about was for this is [sic] no show New York job. That's not wages. That's graft." ⁹ Second, during the defendant's testimony on cross-examination, the court expressed its opinion that, "there is something smelling in Denmark." Third, during the cross-examination of the defendant's last witness, his father, Joseph Barca, the court in attempting to clarify the conflicting testimony, told the witness that, in her judgment, the defendant had "lied." ¹⁰ ] The defendant's first two examples deserve little discussion. In prior cases involving similar comments by trial courts, we have found such claims of prejudice and bias without merit. Logical Communications, Inc. v. Morgan Management Corporation, supra; (the trial court's referral to defendant's proffered defense as a "sham," made prior to his presentation of any evidence, was directed at the merits of the case and did not exhibit a predisposition toward the parties); LaBow v. LaBow, supra, 13 Conn.App. at 337, 537 A.2d 157 (trial court's statement to a party that "I'm beginning to question very much your sincerity," not found to be prejudicial); Keppel v. BaRoss Builders, Inc., supra, 7 Conn.App. at 439-40, 509 A.2d 51 (court's comment that the defendant was "playing fast and loose with the court" did not constitute prejudice).

The third example, in which the court stated her opinion that the defendant had lied, although facially similar to the Cameron case, is distinguishable. While it is true that the trial court's comments did, as...