Cersosimo v. Cersosimo

Decision Date14 September 1982
Citation449 A.2d 1026,188 Conn. 385
CourtConnecticut Supreme Court
PartiesLouis J. CERSOSIMO v. Elizabeth M. CERSOSIMO.

Elizabeth M. Cersosimo, pro se, appellant (defendant).

Aaron P. Slitt, Hartford, for appellee (plaintiff).

Before PETERS, ARTHUR H. HEALEY, ARMENTANO, SHEA and SPONZO, JJ.

ARTHUR H. HEALEY, Associate Justice.

The parties in this case were divorced in 1966. 1 At that time, the defendant wife was awarded custody of the four minor children of the marriage and the plaintiff husband was awarded visitation rights and was ordered to pay $25 weekly as support for each of the children as well as to maintain CMS and health insurance for them. 2 He was also ordered to pay alimony in the sum of $37.50 per week. The record indicates that there have been a number of post judgment motions over the years. 3

This appeal is from the trial court's action, on May 5, 1980, (the 1980 judgment) on the defendant's motion to modify judgment for child support and alimony. 4 Some background should be set out at this point. At the time of the 1980 judgment, 5 the plaintiff had been under an order, temporary in nature since August 11, 1978, to pay $100 per week in alimony, $75 per week in support for the child Scott 6 and the monthly mortgage payment of $195 on the family home owned by the defendant in South Windsor. 7 This 1978 order was to persist until the court had before it the financial data, particularly of the plaintiff's circumstances, upon which to enter a permanent order on the defendant's motion for modification of child support and alimony which was pending at that time, that motion having been filed on August 19, 1977. This motion for modification alleged in part that "there has been a material change in the financial circumstances of the parties, and that the defendant has incurred medical bills because of cancer surgery in the past and cancer surgery that she must undergo in the near future." After a hearing on this motion, the court, on August 11, 1978, also ordered "that an accountant selected by Mr. Colucci of the Family Relations office be appointed to determine if Mr. Cersosimo's salary is commensurate with his business' profits. That Mr. Cersosimo is to make his last two tax returns [available]. That Mr. Cersosimo pay the accountant appointed by Mr. Colucci."

On February 27, 1979, another hearing was held. At that time, Mr. Colucci reported that he had selected an accountant, one Jerome Bascom. The family relations officer also reported that Bascom had had an opportunity to examine the books of the plaintiff's business and the corporate and individual tax returns and had mailed him (Colucci) his report of September 12, 1978, of which he had also given the defendant a copy. 8 As matters developed during that hearing, it appeared that Mr. Colucci had not personally seen the plaintiff's personal income tax returns and the court continued that hearing to assure that these returns were properly reflected in Bascom's report as well as to check further on the defendant's claim that perhaps a motor vehicle and a piece of real estate were not properly reflected in the materials then before the court. The court, concerned that these matters be investigated further, continued the hearing for that purpose. The court went on to indicate to Mr. Colucci that he was to examine the personal tax returns, that the parties ought to be present with him, that he would answer any questions he could that the defendant had and, if he were satisfied that the information was there, then this was to be done "without having to have a physical examination of the return by Mrs. Cersosimo." 9 Upon hearing this, the defendant inquired whether the court was stating that she was "not entitled to look at those returns." The court replied: "I'm saying that I'm going to let the Court Official examine the returns and compare them with the affidavit, extract from that what is the income and answer any questions you might have, relative to his expenses and income." 10 The defendant maintained that "as a pro se litigant representing myself, Your Honor, I really object to the fact that I am not allowed to look at these records." Thereupon, the court said: "You may make a formal objection for the record at such time as the report is made to the Court." 11

On May 5, 1980, another hearing was held at which the court had a copy of the accountant's report. At that time, the defendant asked for "$500.00 a week alimony, and $300.00 a week for child support for my son Scott, and I would like to send him to school." She argued that these figures were not out of line with the plaintiff's income "which Mr. Coluchi [sic], I believe, read off in his office as $85,000.00 or $87,000.00 for [each of] the past three years ..." and that that would be "fair and equitable" and "bring me up to a situation where I can live in the same life style that he does." In making this claim, she read to the court article I, section 20 of the Connecticut constitution, maintaining that that "statute requires that an individual at my age and position in life has a right to that kind of an income." 12 Thereafter, the court entered the orders on the defendant's motion to modify child support and alimony which generated this appeal. 13 The defendant excepted to this order.

The defendant claims that the court erred in failing (1) to hear her motion for production, disclosure and examination and her objection to the court's denying her access to the plaintiff's personal income tax returns; (2) to consider that the divorce decree of the parties was granted under the law extant in 1966; (3) to apply the criteria for modification of alimony and support set forth in General Statutes § 46b-86; (4) to adhere to the criteria for awarding alimony set forth in General Statutes § 46b-82; (5) to consider article I, section 20 of the Connecticut constitution in passing upon her motion for modification of alimony; and (6) to allow her to give her "summarizing argument" after allowing plaintiff's counsel to do so, thus depriving her of the opportunity to rebut the argument of plaintiff's counsel by stating her dissatisfaction concerning the disposition of the financial matters involved and to raise claims under the sixth, thirteenth and fourteenth amendments to the United States constitution.

We take up initially the defendant's claim that the court erred in failing to hear her motion for production, disclosure and examination of the plaintiff's personal income tax returns and her objection to the "court['s] denying defendant access to plaintiff's personal income tax returns." 14 The latter refers to the court's direction that a meeting be held between the family relations officer, the defendant, the plaintiff, and the plaintiff's counsel "so that Mr. Colucci could read to the Defendant the Personal Income Tax of Louis J. Cersosimo, Plaintiff." 15 It also maintains that "Pro se litigants, representing themselves have all the rights and privileges of counsel" and sets out her objection to the "Court's failure to allow Defendant access to these reocrds [sic], and requests the Court order the Income Tax Records given to her."

The issue raised here is whether the defendant, as a pro se litigant, is entitled to the same access to the materials sought as an attorney representing her would have if she had had counsel. The transcripts, fairly read, indicate that if the defendant had had counsel, then counsel would have had an opportunity to examine the plaintiff's personal income tax returns. 16

It is "our established policy to allow great latitude to a litigant who, either by choice or necessity, represents himself in legal proceedings, so far as such latitude is consistent with the just rights of any adverse party ...." Bitonti v. Tucker, 162 Conn. 626, 627, 295 A.2d 545, cert. denied, 409 U.S. 851, 93 S.Ct. 62, 34 L.Ed.2d 94 (1972). This does not, however, mean that we will entirely disregard the established rules of procedure, adherence to which is necessary so that the parties may know their rights and the real issues in controversy may be presented and determined. See Hartford National Bank & Trust Co. v. DiFazio, 177 Conn. 34, 39n, 411 A.2d 8 (1979); O'Connor v. Solomon, 103 Conn. 744, 745-46, 131 A. 736 (1926). "It is a well-settled principle of law that a party to a civil action may appear either pro se or through counsel. See 7 Am. Jur. 2d, Attorneys at Law § 6, p. 46; Annot., 67 A.L.R.2d 1102, 1103; Osborn v. United States Bank, 22 U.S. (9 Wheat.) 738, 829, 6 L.Ed. 204 (1824); and Abernethy v. Burns, 206 N.C. 370, 173 S.E. 899 (1934)." Hickman v. Frerking, 4 Kan.App. 590, 592, 609 P.2d 682 (1980); see 28 U.S.C. § 1654 (as amended 1949); see also Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Where a defendant acts as his own counsel, as he has every right to do, "his rights are subject to and will receive the same consideration as if he had been represented by an attorney." Martin v. Martin, 188 Neb. 393, 397, 197 N.W.2d 388 (1972). Such a litigant is bound by the same rules of evidence and procedure as those qualified to practice law. See Hutter Northern Trust v. Door County Chamber of Commerce, 467 F.2d 1075, 1079 (7th Cir. 1972); Murphy v. Citizens Bank of Clovis, 244 F.2d 511, 512 (10th Cir. 1957); Hampton v. Gilmore, 511 S.W.2d 442, 443 (Mo. App. 1974); In Re Brewster, 115 N.H. 636, 638, 351 A.2d 889 (1975); State ex rel. State Highway Commission v. Sherman, 82 N.M. 316, 318-19, 481 P.2d 104 (1971).

It is apparent that the trial court denied the defendant physical access to the plaintiff's personal income tax returns solely because of the defendant's pro se status. This was error because the defendant had the same right to discovery as any other party represented by counsel would have had subject to the principle that all rulings for discovery are subject to the discretion of the trial...

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