Matza v. Matza

• Decision Date: 29 June 1993
• Docket Number: No. 14605,14605
• Citation: 627 A.2d 414,226 Conn. 166
• Court: Connecticut Supreme Court
• Parties: Richard A. MATZA v. Jane W. MATZA.

Page 414

627 A.2d 414

226 Conn. 166

Richard A. MATZA v. Jane W. MATZA.

No. 14605.

Supreme Court of Connecticut.

Argued March 25, 1993.

Decided June 29, 1993.

Wesley W. Horton, with whom was Alexandra Davis, Hartford, for appellant-appellee (defendant).

William H. Narwold, with whom were Laura W. Ray, Hartford, William T. Fitzmaurice, Stamford, and, on the brief, C. Ian McLachlan, Hartford, for appellee-appellant (plaintiff).

Before PETERS, C.J., and BORDEN, BERDON, KATZ and PALMER, JJ.

BORDEN, Associate Justice.

The defendant, Jane W. Matza, appeals and the plaintiff, Richard A. Matza, cross appeals, upon our grant of certification, ¹ from the judgment of the Appellate Court. The Appellate Court reversed the judgment of the trial court, Hon. John Ottaviano, Jr., state trial referee, dissolving the parties' marriage, and ordered an evidentiary hearing on a motion to withdraw as counsel filed by the defendant's attorney. The principal issues in this appeal are: (1) whether the trial court, Mihalakos, J., who ruled on the motion to withdraw improperly refused to hold an evidentiary hearing on that motion; and (2) whether the trial referee, Hon. John Ottaviano, Jr., improperly drew an adverse inference from the defendant's failure to testify at trial. We reverse the judgment of the Appellate Court.

The Appellate Court opinion sets forth the history of this protracted and tortuous litigation: "The underlying dissolution of marriage proceeding was commenced on June 14, 1988. Judgment was rendered on February 21, 1991, thirty-two months later. During the course of this action, three attorneys filed appearances on the defendant's behalf but subsequently withdrew their representation of her. The first, Gary I. Cohen, filed a motion to withdraw from the case in which he claimed that 'difficulties have arisen between counsel and client which make effective representation impossible.'

"On November 29, 1988, Attorney Arnold M. Potash filed an appearance in lieu of Cohen. On December 20, 1988, the court, Harrigan, J., issued temporary alimony and support orders, but vacated those orders on June 27, 1989, after concluding that a financial affidavit filed by the defendant was 'unquestionably inaccurate' and 'misleading.' After Judge Harrigan vacated the temporary alimony and support orders, hearings on a subsequent motion for temporary alimony were held before the court, F. Freedman, J. Judge Freedman issued temporary alimony and support orders on August 8, 1989. On November 21, 1989, Judge Freedman ordered the trial to commence on February 15, 1990. On January 10, 1990, the defendant discharged Potash and on January 26, 1990, Attorney J. Daniel Sagarin filed an appearance in lieu of Potash. On January 29, 1990, Judge Freedman referred the case to the Honorable John Ottaviano, [Jr.,] state trial referee, for trial, stating '[t]here will be no further continuances.' Nonetheless, the case again was continued.

"On May 16, 1990, the first day of trial before Judge Ottaviano, the defendant attempted to fire Sagarin. Judge Freedman referred the matter, without objection, to the court, Mihalakos, J. Sagarin made an oral motion to withdraw before Judge Mihalakos on the basis of his representation that the defendant no longer wanted him to represent her. Judge Mihalakos denied the motion and the trial commenced later that day before Judge Ottaviano.

"On May 17, 1990, after one and one-half days of direct examination of the plaintiff, Sagarin began cross-examination. Judge Ottaviano then suspended the trial from May 18, 1990, to May 22, 1990, to allow the parties to conduct settlement negotiations. On May 24, 1990, with no settlement pending, Judge Ottaviano scheduled the trial to resume on July 17, 1991. Judge Ottaviano noted that the defendant had yet to file a financial affidavit and ordered her to do so or be sanctioned.

"The following day, Sagarin delivered a motion to withdraw as counsel together with a supporting memorandum under seal and a letter to Judge Freedman requesting that the motion be assigned to Judge Mihalakos to avoid prejudicing the defendant before Judge Ottaviano. On June 8, 1990, an attorney employed by Sagarin's law firm offered Judge Mihalakos a sealed affidavit in support of the motion. The defendant objected to Sagarin's motion to withdraw and his submission of the affidavit and requested a continuance to prepare a response to the motion. Attorney Dominic Barbara, a New York attorney who had represented the defendant in other matters but had not filed an appearance in this case, also objected to the affidavit's being shown to the plaintiff's counsel, but not to its review by the court. Judge Mihalakos postponed the hearing until June 12, 1990.

"On June 12, 1990, Sagarin pursued the motion to withdraw at a hearing before Judge Mihalakos, arguing that his continued representation of the defendant would result in his participation in the defendant's fraudulent or improper conduct and urging Judge Mihalakos to conduct an in camera review of his affidavit. After the plaintiff's attorney objected to an in camera review, the defendant stated: 'I ... definitely do not want this affidavit opened up. I think it's privileged, and if it is submitted I think there should be a hearing without [the plaintiff's attorney] present so we can ask them questions about this affidavit.'

"Judge Mihalakos then recessed and read Sagarin's affidavit, the contents of which may be summarized as follows: The defendant's use of $196,000 in proceeds from the sale of a Florida condominium was in dispute in the case. After reviewing testimony given by the defendant before Sagarin entered the case as her attorney, Sagarin advised the defendant that her prior testimony regarding the use of the proceeds from the condominium's sale was 'not inherently credible.' The defendant then told Sagarin that she had used $75,000 of the proceeds to repay a loan from her father. Sagarin's interview with her father, however, left him skeptical of this claim. Although Sagarin advised the defendant that he would not allow perjurious testimony or fraudulent documents to be admitted at trial, the defendant refused to admit the falsity of her claim and refused to sign a financial affidavit that was prepared with her approval.

"The affidavit further stated the following: On May 14, 1990, Sagarin had received a call from Barbara who claimed that he had been retained by the defendant's family to protect her interests. Barbara stated that he previously had advised the defendant not to tell the 'phony story' about the condominium's proceeds. Sagarin considered the conversation with Barbara to be 'extrinsic proof ... that the story should not be presented to the court.' On May 17, 1990, Barbara appeared in court in Connecticut and told Sagarin that he had been retained by the defendant's father and was being paid $4000 per day. Sagarin concluded that because her father could not afford to pay the retainer, the retainer was being paid out of funds hidden by the defendant. From these facts, Sagarin concluded that the defendant's refusal to sign her financial affidavit was based on 'concerns over perjury and fraud.'

"After reviewing Sagarin's affidavit, Judge Mihalakos returned to the bench and granted Sagarin's motion to withdraw as counsel. When the trial resumed on July 17, 1990, the defendant sought another continuance for the purpose of obtaining counsel. Over the plaintiff's objection, Judge Ottaviano granted her a one week continuance. He also granted Barbara's request to appear on the defendant's behalf pro hac vice, provided Barbara retain local counsel. See Practice Book § 24.

"Barbara failed, however, to appear in court on July 23, 1990, or any time thereafter. Instead, Attorney Donald Cantor, the defendant's fifth attorney, appeared on the defendant's behalf and requested a three month continuance and an order that the plaintiff pay him a $50,000 retainer. Judge Ottaviano denied both requests, and trial resumed the following day. The defendant appeared, unaccompanied by an attorney, and requested another continuance for the purpose of engaging counsel, which the court denied. The defendant represented herself throughout the remainder of the trial. On February 21, 1991, Judge Ottaviano rendered judgment dissolving the parties' marriage and entering consequential orders regarding custody, support and visitation of the parties' children, alimony and the division of the parties' assets and liabilities." Matza v. Matza, 27 Conn.App. 769, 770-74, 610 A.2d 702 (1992).

The defendant appealed to the Appellate Court claiming, inter alia, that: (1) the judge who ruled on the motion to withdraw improperly refused to conduct an evidentiary hearing on that motion; and (2) the trial referee improperly drew an adverse inference from the defendant's failure to testify. The Appellate Court, having agreed with the defendant on the first claim, ² remanded the case for a hearing on Sagarin's motion to withdraw. The Appellate Court's rescript provided that "if that motion is denied, the judgment is reversed and the case is remanded for a new trial; if the motion to withdraw is granted, the judgment is affirmed." Id., at 780, 610 A.2d 702. This appeal and cross appeal followed.

I

We first address the issue presented by the cross appeal. The plaintiff contends that the Appellate Court improperly concluded that the defendant was entitled to an evidentiary hearing on her attorney's motion to withdraw from the case. We agree. ³

It is useful to begin by clearing away those issues upon which resolution of this question does not depend. First, the facts of this case do not raise the question of whether a party to a dissolution proceeding has a right to have appointed counsel. Cf. Lavertue v. Niman, 196 Conn. 403, 493 A.2d 213 (1985). Second, the facts of this case do not raise the issue of whether an indigent party in a civil case is entitled to legal...