LaBow v. LaBow, 4511

• Decision Date: 10 March 1988
• Docket Number: No. 4511,4511
• Citation: 537 A.2d 157,13 Conn.App. 330
• Court: Connecticut Court of Appeals
• Parties: Myrna LaBOW v. Ronald LaBOW.

Page 157

537 A.2d 157

13 Conn.App. 330

Myrna LaBOW v. Ronald LaBOW.

No. 4511.

Appellate Court of Connecticut.

Argued Oct. 7, 1987.

Decided Feb. 2, 1988.

Certification Denied March 10, 1988.

Stuart M. Roth, with whom were Leonard Berringer and, on the brief, Edith S. Rosen and Cindy S. Schwartz, Hartford, for appellant (defendant).

Myrna LaBow, pro se, appellee (plaintiff).

Before DUPONT, C.J., and BIELUCH and NORCOTT, JJ.

DUPONT, Chief Judge.

The defendant appeals from the modification of the original monetary awards granted to the plaintiff in 1978 upon the dissolution of a twenty-eight year marriage. The original judgment had awarded custody of the parties' three minor children to the plaintiff, and had ordered the defendant to pay the following amounts: $4500 per month unallocated alimony and child support; $566.85 per week for expenses relating to certain real estate properties; $220 per week for utilities; up to $10,000 per year for medical and dental expenses for the plaintiff and the minor children; up to $30,000 per year for educational expenses for the minor children; and life insurance premiums for existing policies insuring the defendant's life which name the plaintiff as beneficiary.

In 1982, the defendant filed a motion for modification, alleging a substantial downward change in his financial circumstances. The plaintiff subsequently filed a motion seeking an upward modification of the original award. After extensive hearings, a state trial referee, acting as the trial court, rendered judgment for the plaintiff. The court's orders included the following: $4500 per week alimony; $200 per week child support; ¹ $95,655 plus interest in reimbursement for property taxes previously paid by the plaintiff; up to $10,000 per year for all medical and dental expenses of the plaintiff; and the cost of leasing, garaging and operating an automobile.

The defendant claims that the trial court abused its discretion in ruling on the motion for modification (1) by acting in a biased manner toward the plaintiff which deprived the defendant of his right to a fair hearing, and (2) in its monetary awards.

I

The first issue is whether the court erred in not granting the defendant's motion for recusal. The defendant's accusations are four fold. First, the defendant claims that the trial court assisted the plaintiff in introducing exhibits into evidence, made objections on her behalf, questioned her witnesses, and gave instructions as to how she should proceed in the case. The defendant argues that such conduct is adversarial in nature and constitutes acting as counsel for the plaintiff. Second, the defendant asserts that the court showed favoritism toward the plaintiff in ruling on discovery matters, and also made several statements which evidenced distrust of the defendant. Third, the defendant asserts that the trial court treated the litigants disparately for the same or similar conduct in its issuing of penalties for violations of its discovery orders. Finally, the defendant argues that the trial court's "outrageous awards entered in its Memorandum of Decision" illustrate the "court's final act of favoritism" toward the plaintiff.

These charges by the defendant accuse the trial judge of bias or prejudice and, as such, are accusations which "[strike] at the very core of judicial integrity and [tend] to undermine public confidence in the established judiciary...." Felix v. Hall-Brooke Sanitarium, 140 Conn. 496, 501, 101 A.2d 500 (1953). Such accusations "[implicate our] basic concepts of [a] fair trial." Cameron v. Cameron, 187 Conn. 163, 168, 444 A.2d 915 (1982). They necessitate a thorough review of all portions of the transcript which the defendant believes support his claim that he was denied the right to a fair trial by an impartial judge. Szypula v Szypula, 2 Conn.App. 650, 653, 482 A.2d 85 (1984).

Canon 3(C)(1) of the Code of Judicial Conduct requires a judge to disqualify himself or herself in any judicial proceeding in which his or her impartiality might reasonably be questioned. This canon has been explicated in a number of Connecticut decisions. It is axiomatic that a trial judge must conduct all trial proceedings with the "highest degree of impartiality"; Felix v. Hall-Brooke Sanitarium, supra; Postemski v. Landon, 9 Conn.App. 320, 322, 518 A.2d 674 (1986); and that, as a minister of justice, a trial judge ought to be "cautious and circumspect in his language and conduct." Felix v. Hall-Brooke Sanitarium, supra, 140 Conn. at 502, 101 A.2d 500. The trial judge "should be careful to refrain from any statement or attitude which would tend to deny the defendant a fair trial." State v. Gionfriddo, 154 Conn. 90, 97, 221 A.2d 851 (1966).

Disqualification of a trial judge is not dependent upon proof of actual bias. See Dacey 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, supra, 187 Conn. at 170, 444 A.2d 915. 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).

It is the defendant's claim that the court acted as counsel for the plaintiff. This claim must be examined in its proper perspective based upon certain facts. The defendant is a nonpracticing lawyer and a shrewd businessman who was represented by competent counsel. The plaintiff is a pro se litigant who claimed at trial that she could not afford legal representation because of the defendant's intentional withholding of more than $300,000 in back alimony and support payments. The record supports the fact that the plaintiff was unable to collect the sums awarded her by the Connecticut court which rendered the original judgment until after her extensive pro se litigation efforts in the New York courts.

Although the trial court is permitted to take those steps which are necessary to ensure the orderly progress of a trial; Cameron v. Cameron, supra, 187 Conn. at 169, 444 A.2d 915; a trial court may not make remarks or exhibit any conduct which is indicative of favor. Therefore, a trial judge must not exhibit an apparent position of advocacy in the case before him or her. State v. Bember, 183 Conn. 394, 402, 439 A.2d 387 (1981).

The transcript indicates that on several occasions the trial court asked the defendant a question while he was being cross-examined by the plaintiff. " 'Whether or not the trial judge shall question a witness is within his sound discretion. The extent of the examination is likewise within his sound discretion. Its exercise will not be reviewed unless he has acted unreasonably, or, as it is more often expressed, abused his discretion. The judge must not exhibit bias or prejudice nor take sides.' " Id., at 401-402, 439 A.2d 387, quoting State v. Cianflone, 98 Conn. 454, 469, 120 A. 347 (1923). The questions asked by the court in this case indicate that it rephrased questions that were put to the defendant by the plaintiff, but that the rephrasing occurred only after the defendant stated: "I am not sure I understand the question." ² The transcript also indicates several occasions when the court assisted the plaintiff in introducing exhibits into evidence, in making objections, and in giving instructions on how to proceed in the case. Such conduct, however, was not adversarial but, rather, was an attempt by the trial court to conduct a fair and impartial proceeding. Our review of the transcript indicates that the trial court was mindful of the pro se plaintiff's earnest but sometimes ineffective efforts to present her case. See Connecticut Light & Power Co. v. Kluczinsky, 171 Conn. 516, 519-20, 370 A.2d 1306 (1976). In Connecticut, the trial courts as well as the appellate courts have been solicitous of the rights of pro se litigants. See Keane v. Smith, 163 Conn. 606, 316 A.2d 416 (1972), cert. denied, 409 U.S. 1113, 93 S.Ct. 927, 34 L.Ed.2d 696 (1973); Bitonti v. Tucker, 162 Conn. 626, 295 A.2d 545, cert. denied, 409 U.S. 851, 93 S.Ct. 62, 34 L.Ed.2d 94 (1972). "In such a situation not only this court, but our [trial courts], so far as they properly can, will endeavor to see that such a plaintiff shall have the opportunity to have [her] case fully and fairly heard, and will endeavor to aid a result, such as this case presents, brought about by [the] plaintiff's lack of legal education and experience, rather than to deny [her] an opportunity to be heard through a too strict construction of a rule of practice, when this course does not interfere with the just rights of the [other party], nor unduly impede the court in making a proper record for appeal." Higgins v. Hartford County Bar Assn., 109 Conn. 690, 692, 145 A. 20 (1929).

We conclude that the trial court's conduct was appropriate under the circumstances and that the court did not act as counsel on behalf of the plaintiff.

The defendant also claims that the trial court showed favoritism toward the plaintiff. The defendant avers that such "favoritism" is evidenced, in part, by the trial court's leniency with the plaintiff on discovery and evidentiary matters. We note, however, that the defendant has failed to claim any error on appeal regarding discovery or evidentiary issues.

The defendant's other proffered evidence of "favoritism" is that the trial court "made several statements which evidenced his distrust of the defendant." The defendant draws our attention to designated pages of the transcript which contain certain statements in which the trial court made a remark about the defendant or his attorney. In the context in which they were made, however, they do not show bias.

In the first...