Greenan v. Greenan

• Decision Date: 20 May 2014
• Docket Number: No. 34320.,34320.
• Citation: 91 A.3d 909,150 Conn.App. 289
• Court: Connecticut Court of Appeals
• Parties: Paul GREENAN v. Suzanne GREENAN.

150 Conn.App. 289

91 A.3d 909

Paul GREENAN

v.Suzanne GREENAN.

No. 34320.

Appellate Court of Connecticut.

Argued Dec. 9, 2013.

Decided May 20, 2014.

David V. DeRosa, with whom were Paul Greenan and, on the brief, Austin B. Johns, for the appellant (plaintiff).

Norman A. Roberts II, for the appellee (defendant).

Karen L. Dowd, Hartford, with whom, on the brief, was Melissa J. Needle, for the minor children.

BEACH, ROBINSON and SHELDON, Js.^*

BEACH, J.

In this marital dissolution action, the plaintiff, Paul Greenan, challenges certain orders entered by the trial court in the course of the proceedings dissolving his marriage to the defendant, Suzanne Greenan. The plaintiff claims that the court erred in (1) denying his motion to seal the trial court's memorandum of decision, (2) mentioning his erased arrest record in its decision and improperly drawing an adverse inference from his assertion of the fifth amendment privilege against self-incrimination, (3) declining to award him alimony, (4) finding him to be in contempt of the court's automatic orders pursuant to Practice Book § 25–5, (5) ordering the parties to pay the fees submitted by the attorney for the parties' two minor children and by the children's guardian ad litem, and (6) entering certain orders regarding his 529 college savings plan account. We affirm the judgment of the trial court.

I

The plaintiff first claims that the court erred in denying his request to issue a sealed memorandum of decision. ¹ We disagree.

The following facts and procedural history are relevant to our resolution of this claim. In September, 2011, the plaintiff filed a motion to seal, among other things, any written decisions concerning any sensitive and/or personal information about the parties and their children. The court denied this motion. On November 30, 2011, the plaintiff filed a second motion to seal the memorandum of decision.² At a hearing on January 17, 2012, the court, Calmar, J., stated that the “decision is something that can be generally handled with some sensitivity.” The next day, on January 18, 2012, the court issued an unsealed memorandum of decision in which it rendered judgment dissolving the parties' marriage. The plaintiff filed this appeal on February 7, 2012. On August 30, 2012, the court filed a corrected memorandum of decision; the court noted that the corrected decision incorporated clarifications requested in the plaintiff's August 10, 2012 motion for articulation. The opinion did not further explain the court's reasons for denying the motion to seal.

During the pendency of this appeal, on September 26, 2012, the court, Emons, J., heard argument on the plaintiff's November 30, 2011 motion to seal. The plaintiff's attorney requested that the entire memorandum of decision be sealed. The court denied the motion. In a January 14, 2013 articulation, the court, Emons, J., explained that it denied the plaintiff's November 30, 2011 motion to seal because “the plaintiff offered and/or furnished no new reasons to alter Judge Calmar's two (or more) rulings and/or decisions that are presently on appeal. The motion was not properly before this court.”

“We review a trial court's decision granting or denying a motion to seal to determine whether, in making the decision, the court abused its discretion.... Inherent ... in the concept of judicial discretion is the idea of choice and a determination between competing considerations.... When reviewing a trial court's exercise of the legal discretion vested in it, our review is limited to whether the trial court correctly applied the law and reasonably could have concluded as it did.” (Citations omitted; internal quotation marks omitted.) Vargas v. Doe, 96 Conn.App. 399, 408–409, 900 A.2d 525, cert. denied, 280 Conn. 923, 908 A.2d 546 (2006).

“The presumption of openness of court proceedings ... is a fundamental principle of our judicial system.... This policy of openness is not to be abridged lightly. In fact, the legislature has provided for very few instances in which it has determined that, as a matter of course, certain privacy concerns outweigh the public's interest in open judicial proceedings.” (Citation omitted; internal quotation marks omitted.) Id., at 406, 900 A.2d 525. The legislature, however, statutorily permits closed hearings and sealing of records in “family relations matters” ³ where “the welfare of any children involved or the nature of the case so requires....” General Statutes § 46b–11.⁴

The plaintiff argues that the “children's interest in avoiding stigmatization and permanent psychological harm from the highly charged information revealed in the [memorandum of decision] overrides any public interest.” He argues that the personal family details included in the memorandum of decision require that it be sealed.

“[The public] policy of openness is not to be abridged lightly.” (Internal quotation marks omitted.) Vargas v. Doe, supra, 96 Conn.App. at 406, 900 A.2d 525; see also Practice Book § 25–59A (a) (“[e]xcept as otherwise provided by law, there shall be a presumption that documents filed with the court shall be available to the public”). We have carefully reviewed the materials in question and decline to hold that the court abused its discretion in implicitly finding that the privacy interests in the case did not outweigh the presumption of openness and, thus, the court did not improperly deny the motion to seal.

II

The plaintiff next claims that the court erred in (1) mentioning his erased arrest record in its memorandum of decision and (2) improperly drawing an adverse inference from his assertion of his rights and privileges under the fifth amendment. We disagree.

General Statutes § 54–142a (e)(3) provides that “[a]ny person who shall have been the subject of such an erasure shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.” “[Section] 54–142a refers by its terms to records of criminal proceedings, mandating in subsection (a) the erasure of all police and court records and records of any state's attorney pertaining to charges which have been dismissed, and prohibiting in subsection (e) the disclosure of the contents of those records by judicial or law enforcement personnel. There is no reference in the statute to disclosures by private parties or to matters extraneous to the records themselves.... [T]he [purpose of the] erasure statute ... is to protect innocent persons from the harmful consequences of a criminal charge which is subsequently dismissed.... Prohibiting the subsequent use of records of [a] prior arrest [that has been erased under § 54–142a] and court proceedings adequately fulfills this purpose by insulating such an individual from the consequences of the prior prosecution. The statute does not and cannot insulate [an individual] from the consequences of his [or her] prior actions.” (Citations omitted; emphasis omitted; internal quotation marks omitted.) State v. Morowitz, 200 Conn. 440, 449–51, 512 A.2d 175 (1986).

A

In its January 18, 2012 memorandum of decision, the court mentioned that the plaintiff had been arrested on February 8, 2010, on drug related charges, that the resultant criminal case was resolved by way of a court-ordered diversionary program and that the plaintiff reported that these charges had been erased pursuant to § 54–142a (e)(3).

The plaintiff's claim requires us to review the applicability of a statutory provisionto the present case and, thus, our review is plenary. See Perry v. Perry, 130 Conn.App. 720, 724, 24 A.3d 1269 (2011).

The plaintiff argues that the decision in the dissolution case was issued “in contravention of the erasure statute” and “created a new public record of the plaintiff's erased arrest after the plaintiff had successfully completed a diversionary program.” Evidence was admitted at trial to support the court's findings regarding the plaintiff's arrest. The plaintiff has not established that this evidence was admitted in contravention of § 54–142a, or, in other words, that the evidence supporting the court's finding constituted “records” within the reach of § 54–142a. The erased records themselves were not admitted into evidence. The plaintiff testified on direct examination that he was arrested and that, as a result,⁵ his visitation with his children became supervised and his employment was terminated. The plaintiff's testimony about his arrest was based on his recollection, independent of erased records and, thus, was not within the scope of § 54–142a. See, e.g., State v. Morowitz, supra, 200 Conn. 440, 512 A.2d 175 ( § 54–142a not bar to victim's testimony regarding memory of assault, which was based on personal knowledge independent of erased records); see also Rado v. Board of Education, 216 Conn. 541, 550–52, 583 A.2d 102 (1990) ( § 54–142a did not bar testimony regarding observation of events where witnesses did not use any record subject to erasure in testifying).

The plaintiff's attorney introduced further evidence of his arrest. The plaintiff's attorney elicited testimony on direct examination from Dr. Eric Frazer, the court-appointed evaluator, regarding the plaintiff's arrest and drug related involvement in the context of their effect on supervised visitation and his reputation at his children's school. The plaintiff's attorney also entered into evidence Frazer's custody evaluation, which referred to statements the plaintiff made regarding his arrest. Furthermore, the plaintiff's attorney referenced the plaintiff's arrest during closing argument. The plaintiff cannot now complain that the court found facts in its opinion regarding his arrest, which facts are supported by his testimony and other evidence submitted by his attorney.

B

On direct examination, the plaintiff testified as to his arrest. On cross-examination, the plaintiff was asked, “[w]here were you on the evening of February 8, 2010,” ⁶ and...