Dubaldo v. Dubaldo, 5701

• Decision Date: 14 June 1988
• Docket Number: No. 5701,5701
• Citation: 542 A.2d 750,14 Conn.App. 645
• Court: Connecticut Court of Appeals
• Parties: Kathleen M. DUBALDO v. Robert V. DUBALDO.

Page 750

542 A.2d 750

14 Conn.App. 645

Kathleen M. DUBALDO v. Robert V. DUBALDO.

No. 5701.

Appellate Court of Connecticut.

Argued March 10, 1988.

Decided June 14, 1988.

C. Michael Budlong, with whom was Terence S. Ward, Hartford, for appellant (defendant).

Raynald B. Cantin, with whom was David M. Askinas, Hartford, for appellee (plaintiff).

Before SPALLONE, DALY and NORCOTT, JJ.

SPALLONE, Judge.

The defendant appeals from the judgment rendered in a dissolution action. The sole question presented to us in this appeal is whether the trial court erred when it failed to grant the defendant's oral motion for a mistrial made after the trial court conducted an ex parte discussion in chambers with one of the plaintiff's witnesses. We find error.

The facts pertinent to this appeal follow. The plaintiff, Kathleen M. Dubaldo, and the defendant, Robert V. Dubaldo, had been engaged in a long and bitter dissolution proceeding that culminated in a thoroughly and vigorously contested trial. During the course of these proceedings, one witness, Paul Sherbacow, testified twice. Sherbacow is an attorney licensed to practice in the state of Connecticut and, as counsel for the plaintiff, had signed the complaint which instituted the dissolution proceedings. Although the plaintiff secured other counsel for purposes of the dissolution action, Sherbacow continued to represent the plaintiff in other unrelated matters. It appears as well that Sherbacow was romantically involved with the plaintiff and it was revealed during his testimony that their amorous relationship had spanned the previous two years and that he had financially contributed to her support during that time.

On June 19, 1986, Sherbacow completed his testimony, thereby concluding his second appearance as a witness in the trial. As the defendant's counsel called his next witness, the trial court declared a recess and called Sherbacow into chambers. Neither counsel nor either of the parties were invited to attend this conference between the judge and the witness, and there is no transcript of the ex parte meeting held in chambers.

After approximately ten minutes, the judge returned to the courtroom, concluding the recess. At that point, defense counsel inquired as to the nature of the ex parte communications. The court stated that the conversation involved her expression of "sympathies to Mr. Sherbacow." The judge further remarked: "I have known [Mr. Sherbacow] for a while. I know this practice can be devastating to people and I think some words from people are helpful sometimes." Sherbacow's wife had recently passed away.

Counsel for the defendant then inquired of the court whether the court's meeting with the witness should cause the court to declare a mistrial. After defense counsel discussed the occurrence with his client, he moved for a mistrial.

It appears the court was initially inclined to grant the motion, remarking: "[F]rankly, I suppose a retrial would be better than having a ground for appeal." The plaintiff objected, the court ultimately denied the motion and the trial proceeded. The defendant pursued his quest for a mistrial and filed a motion to reargue on October 27, 1986, which was denied, and a motion to open and to disqualify which was denied on February 25, 1987.

Ultimately, the trial ended, a memorandum of decision was issued and judgment was rendered granting a dissolution of the marriage. The judgment also distributed real and personal property of the parties and made certain financial awards, none of which is at issue in this appeal. Although, in an amended preliminary statement of issues, the defendant claimed that the trial court erred in denying his motion to open and disqualify, this issue was not included in the final statement of issues nor was it briefed. See Practice Book § 4065. Accordingly, we will consider the second issue abandoned; Mather v. Griffin Hospital, 207 Conn. 125, 129 n. 2, 540 A.2d 666 (1988); State v. Martin, 195 Conn. 166, 167 n. 1, 487 A.2d 177 (1985); Mihalek v. Cichowski, 4 Conn.App. 484, 485 n. 2, 495 A.2d 721 (1985); and confine our discussion to the claim that the court erred by denying the defendant's motion for a mistrial. We conclude that, under the facts and circumstances of this case, the trial court should have granted the motion for a mistrial.

The disqualification of judges in Connecticut is governed by General Statutes § 51-39 ¹ and by Canon 3(C) of the code of judicial conduct. Papa v. New Haven Federation of Teachers, 186 Conn. 725, 744, 444 A.2d 196 (1982). General Statutes § 51-39 has no application to this case because the trial judge had no blood relation to anyone in the case, nor had she a pecuniary interest in the outcome. Our review, therefore, is confined to the strictures of the code of judicial conduct.

The code sets forth an objective standard for disqualifications; Canon 3 (C)(1) provides: "A judge should disqualify [herself] in a proceeding in which [her] impartiality might reasonably be questioned...." (Emphasis added.) " 'Any conduct that would lead a reasonable [person] knowing all the circumstances to the conclusion that the judge's "impartiality might reasonably be questioned" is a basis for the judge's disqualification. Thus, an impropriety or the appearance of impropriety ... that would reasonably lead one to question the judge's impartiality in a given proceeding clearly falls within the scope of the general standard....' Thode, Reporter's Notes to Code of Judicial Conduct (1973), pp. 60-61. 'The question is not whether the judge is impartial in fact. It is simply whether another, not knowing whether or not the judge is actually impartial, might reasonably question his [or her] impartiality, on the basis of all of the circumstances.' Rice v. McKenzie, 581 F.2d 1114, 1116 (4th Cir.1978); see Spires v. Hearst Corporation, 420 F.Supp. 304, 307 (D.Cal.1976)." Papa v. New Haven Federation of Teachers, supra, 745-46, 444 A.2d 196.

The circumstances of this case graphically illustrate the need for heightened sensitivity on the part of judges and lawyers towards the recognition of the reality of the emotional trauma associated with the irretrievable breakdown of a marriage. See Monroe v. Monroe, 177 Conn. 173, 182-83, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S.Ct. 20, 62 L.Ed.2d 14 (1979) (discussing the emotionally-laden circumstances of dissolution actions). In this case, an attorney, who had been engaged in a long term affair with the defendant's wife and who had actually commenced the dissolution proceedings, was...