Knock v. Knock, s. 14426

• Citation: 224 Conn. 776,621 A.2d 267
• Decision Date: 02 March 1993
• Docket Number: Nos. 14426,14429,s. 14426
• Court: Supreme Court of Connecticut
• Parties: Kent KNOCK v. Lynn KNOCK.

Page 267

621 A.2d 267

224 Conn. 776

Kent KNOCK v. Lynn KNOCK.

Nos. 14426, 14429.

Supreme Court of Connecticut.

Argued Dec. 3, 1992.

Decided March 2, 1993.

Arnold H. Rutkin, with whom, on the brief, were Daiga Osis and Kathleen A. Hogan, for appellant in Docket No. 14426 (minor child).

Veronica E. Reich, for appellant in Docket No. 14429 (plaintiff).

Carolyn Richter, with whom were Jeanne G. Miterko and Claudine Siegel, for appellee in both appeals (defendant).

Before PETERS, C.J., and CALLAHAN, BERDON, NORCOTT and KATZ, JJ.

KATZ, Associate Justice.

In this marital dissolution action, the plaintiff, Kent Knock, and the counsel for the minor child, Moriah Knock, claim that the trial court improperly: (1) allowed into evidence, and relied upon, testimony of an expert witness (a) who had not been properly disclosed under Practice Book § 220(D); and (b) who was not qualified to testify regarding the issue of custody and whose testimony was not relevant to the best interests of the child; (2) awarded custody of the parties' minor child to the defendant, Lynn Knock; ¹ (3) exhibited bias against the minor child's appointed counsel; and (4) limited the role of counsel for the minor child. The plaintiff also claims that the trial court abused its discretion in its financial orders concerning distribution of the marital property. We affirm the judgment of the trial court.

The trial court could reasonably have found the following facts. The plaintiff and the defendant were married in Seattle, Washington, on July 31, 1982. The plaintiff has a doctorate in chemistry from Arizona State University; the defendant attended the University of Washington for three years and ultimately obtained her college degree from Housatonic Community College in May, 1991. Although both parties worked at Boeing Aircraft in Seattle at the time of their marriage, the defendant was laid off within six months of the marriage and, except for holding a few sporadic jobs, has generally not worked outside the home since that time. In 1983, the plaintiff received an offer of employment at Sikorsky Aircraft and the parties moved to Trumbull. On December 26, 1984, the defendant gave birth to Moriah, the only child of the marriage. On March 6, 1990, the plaintiff brought a dissolution action.

The parties' marriage was beset by problems from the outset, including both verbal battles and physical altercations. The defendant accused the plaintiff of physical abuse, while the plaintiff characterized his actions as deflecting or restraining the defendant's attacks on him. Each party saw the other as the instigator of such disputes. The plaintiff occasionally bruised the defendant and withheld sex and affection because he did not think she deserved them. The plaintiff called the defendant derogatory names, countermanded her instructions to the minor child and generally treated her as a servant who was unable to please him. In 1985, the defendant went to a walk-in clinic and was referred to the YWCA battered woman's program. In 1987, the plaintiff was arrested on the defendant's complaint that the plaintiff had physically abused her. The defendant attended counseling intermittently at the YWCA battered woman's program until 1990, when she moved out of the marital home with the minor child. During the dissolution proceedings, the defendant became involved with another man and became pregnant with his child. The defendant planned to marry the other man after the dissolution of the parties' marriage had become final.

The trial court heard expert testimony relating to the issue of custody from the family relations counselor, Jennifer Luise, from the court appointed evaluator, Mark Jay Gang, a licensed psychologist, and from Eduardo Baez, also a licensed psychologist. Gang, who met with the defendant, the plaintiff, the minor child and the defendant's fiance, recommended that custody of the minor child be awarded to the plaintiff. Baez, who met only with the plaintiff, also recommended that custody be awarded to the plaintiff. Luise, who met with the defendant, the plaintiff, the minor child and the defendant's fiance, recommended that custody be awarded to the defendant. The court also heard testimony pertaining to battered woman's syndrome by Evan Stark, a sociologist, who met with the defendant and concluded that she had been a victim of battered woman's syndrome.

The trial court rendered final judgment on June 12, 1991, dissolving the marriage of the parties on the ground that the marriage had broken down irretrievably. The dissolution decree awarded primary custody of the child to the defendant with reasonable visitation rights to the plaintiff. The trial court also entered specific financial orders, which will be discussed as they become relevant. The plaintiff and the minor child appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c).

I

The plaintiff claims that the trial court improperly admitted Stark's testimony because: (1) the defendant had failed to comply with the disclosure requirements of Practice Book § 220(D); and (2) Stark was not qualified to testify as to custody and his testimony was not relevant to the court's custody determination. We disagree.

A

The plaintiff first contends that the trial court improperly admitted Stark's testimony because the defendant had failed to comply with Practice Book § 220(D). Specifically, the plaintiff contends that the defendant violated Practice Book § 220(D) by failing to make a timely written disclosure of Stark's name, the subject matter on which he was expected to testify, the substance of the facts and opinions to which he was expected to testify and the summary of the grounds for each opinion. Because of the defendant's noncompliance with the requirements of § 220(D), the plaintiff claims that Stark's testimony should have been excluded and that the trial court had therefore improperly exercised its discretion in allowing him to testify.

The facts relevant to this claim are as follows. This case was claimed to the trial list on January 30, 1991, and the trial began on April 23, 1991. Prior to April 10, 1991, there had been two experts disclosed, the family relations counselor, Luise, and the court appointed psychologist, Gang. ² Luise's evaluation favored the defendant, while Gang's position was neutral. Due to financial constraints, the defendant had not sought any additional expert assistance.

On April 10, 1991, Gang changed his recommendation to favor the plaintiff's position. On April 12, 1991, the plaintiff disclosed another expert witness, Baez, who also favored the plaintiff's position. At that point the defendant decided that expert assistance had become essential to her case. The defendant was able to obtain Stark as an expert within a short period of time. She disclosed the expert to the plaintiff by phone, the day before the trial commenced and more than three weeks before Stark was to testify. The plaintiff did not move for a continuance.

Practice Book § 220(D) provides in relevant part that "any plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within 60 days from the date the case is claimed to a trial list. Each defendant shall disclose the names of his or her experts in like manner within 120 days from the date the case is claimed to a trial list. If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subsection, or if an expert witness who is expected to testify is retained or specially employed after that date, such expert shall not testify except in the discretion of the court for good cause shown."

The plaintiff concedes that the defendant orally disclosed her intention to use Stark as an expert witness on April 22, 1991, less than 120 days from January 30, 1991, when the case had been claimed to a trial list. The plaintiff claims, however, that the disclosure was not made in writing and that, even if it is found to be within the technical requirements of § 220(D), the last minute disclosure imposed an unfair burden on the plaintiff.

Practice Book § 220(D) does not explicitly require that the disclosure be in writing. The plaintiff has not cited, nor have we found, any case in which we have concluded that a writing is required. The discovery rules, however, "are designed to make a ' "trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practical extent." ' " Sturdivant v. Yale-New Haven Hospital, 2 Conn.App. 103, 106, 476 A.2d 1074 (1984), quoting United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958); see also Pool v. Bell, 209 Conn. 536, 541, 551 A.2d 1254 (1989). Although the text of the rule does not explicitly require the writing, in order for the trial court to proceed with the orderly flow of business, disclosure must be made in writing. It would be a cumbersome task for a trial court to determine a party's compliance with § 220(D) without a written disclosure. The record discloses that the defendant did not comply with the requirements for a written disclosure of her intent to call Stark as an expert witness.

The trial court, however, had the discretion to allow Stark to testify despite noncompliance with § 220(D), if good cause was shown. Berry v. Loiseau, 223 Conn. 786, 800, 614 A.2d 414 (1992); Eslami v. Eslami, 218 Conn. 801, 803, 591 A.2d 411 (1991); Wilhelm v. Czuczka, 19 Conn.App. 36, 43, 561 A.2d 146 (1989). "Neither § 220(D) nor the cases interpreting it define what constitutes 'good cause.' The...