Olson v. Olson

• Decision Date: 27 August 2002
• Docket Number: (AC 21438)
• Citation: Olson v. Olson, 71 Conn. App. 826, 804 A.2d 851 (Conn. App. 2002)
• Court: Connecticut Court of Appeals
• Parties: NEIL H. OLSON v. NANCY C. OLSON

71 Conn. App. 826

804 A.2d 851

NEIL H. OLSON v.NANCY C. OLSON

(AC 21438)

Appellate Court of Connecticut.

Argued April 24, 2002.

Officially released August 27, 2002.

Foti, Spear and Hennessy, Js.Alfred F. Morrocco, Jr., for the appellant(plaintiff).

Michael J. Whelton, for the appellee(defendant).

Opinion

FOTI, J.

The plaintiff, Neil H. Olson, in this dissolution of marriage action, appeals from the judgment of the trial court awarding to the defendant, Nancy C. Olson, a certain amount of alimony and various assets.The plaintiff claims that the court improperly (1) heard the case, (2) failed to consider, in determining asset distribution, the parties' stipulation of admissibility regarding financial affidavits purporting to value real property comprising part of the marital estate and (3) required the plaintiff to maintain a life insurance policy for the benefit of the defendant.We affirm the judgment of the trial court.

The following factual background is relevant to our resolution of the plaintiffs claims.The parties were married on June 28, 1970.In May, 1998, the plaintiff filed the action for dissolution, claiming that the marriage had broken down irretrievably.The plaintiff hired an attorney, Theodore J. Wurz, to represent him in the matter.Before the matter was scheduled for trial, the plaintiff filed a motion to disqualify JudgeAnne C. Dranginis from hearing the case.The motion to disqualify was based on a "prior interaction between [the]plaintiffscounsel and Judge Dranginis...."Judge Dranginis and Wurz had been involved in a matter that ultimately was resolved by the Judicial Review Council.On March 31, 2001, Judge Dranginis granted the plaintiffs motion.Prior to trial, however, the plaintiff hired new counsel, Alfred F. Morrocco, Jr., to represent him.In response, Judge Dranginis vacated her previous order granting the plaintiffsmotion to disqualify and decided to hear the case.The plaintiff objected to the court's decision and orally moved for Judge Dranginis to disqualify herself.The court denied the plaintiffs motion.On November 7, 2000, the court dissolved the parties' marriage and rendered orders involving, inter alia, alimony, property distribution and insurance.Additional facts will be set forth as necessary.

I

The plaintiff first claims that Judge Dranginis improperly decided to hear the case after she had recused herself from the proceedings.Specifically, the plaintiff claims that Judge Dranginis' alleged "bias toward [Wurz]," which necessitated her recusal in the first place, "must flow and be passed on to"the plaintiff such that she was thereby required to disqualify herself from presiding over the case.

The following additional facts are relevant to the plaintiffs claim.Prior to the plaintiffsmotion to disqualify Judge Dranginis, she had had very little do with the case or its litigation other than when the parties sought a pendente lite order, sought continuances and when Wurz made an appearance on December 20, 1999, in lieu of the plaintiffs original attorney, John F. Harvey, Jr.The plaintiff filed his first motion to disqualify Judge Dranginis about three months after Wurz had appeared on his behalf.Subsequently, the plaintiff replaced Wurz with Morrocco as his counsel.On the day of trial, after learning that Wurz had been replaced, Judge Dranginis vacated her prior order of disqualification and heard the case because the ground for her recusal, namely, Wurz's participation in the case, no longer existed.In response, the plaintiff orally moved for Judge Dranginis' recusal on the basis of a "lingering" bias and the "mere appearance" of partiality.¹The court denied that motion for lack of a sufficient basis.

Before we reach the merits of the plaintiffs claim, we must determine whether the plaintiff has provided us with an adequate record for review.The defendant argues that the plaintiffs claim should not be addressed because his oral motion to disqualify Judge Dranginis did not comply with Practice Book§ 1-23, which provides: "A motion to disqualify a judicial authority shall be in writing and shall be accompanied by an affidavit setting forth the facts relied upon to show the grounds for disqualification and a certificate of the counsel of record that the motion is made in good faith.The motion shall be filed no less than ten days before the time the case is called for trial or hearing, unless good cause is shown for failure to file within such time."

In response to the defendant's argument, the plaintiff asserts that because the court previously had granted his written motion to disqualify, there was no need to file another written motion because the first motion already was part of the record.He further claims that the basis of the recusal cannot cure itself automatically and that for a client's sake, once a judge is recused, that recusal should continue.We are not persuaded.

Practice Book§ 1-23"`creates a mandatory procedure to be followed by any party seeking to recuse a judge'";Wendt v. Wendt,59 Conn. App. 656, 694, 757 A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044(2000); and, if a party fails to follow such procedures, the record is deemed to be inadequate for our review because they are "a condition precedent to a hearing on a judge's disqualification."State v. Weber,6 Conn. App. 407, 413, 505 A.2d 1266, cert. denied, 199 Conn. 810, 508 A.2d 771(1986).Further, "[r]epresentations made by counsel are not evidence in the record upon which we can rely in our review of the judge's conduct....The lack of a recusal hearing leaves the record bereft of any factual basis upon which we may base our review."(Citation omitted.)Id.

We conclude that the plaintiff has failed to provide an adequate record because he failed to follow the procedures in Practice Book§ 1-23.The plaintiff, in making his second motion to disqualify, completely failed to comply with even a single requirement set forth in Practice Book§ 1-23.His motion was made orally, it lacked an affidavit containing factual allegations, and there was no certificate by counsel that the motion was made in good faith."Furthermore, the [plaintiff] never requested nor demanded a hearing in order to present evidence to support his claim of judicial recusal";State v. Weber,supra, 6 Conn. App. 413; and he did not request a continuance to gather evidence thereof.²

The plaintiffsfirst motion to disqualify Judge Dranginis was grounded specifically on past interactions between her and Wurz.That ground no longer existed when the plaintiff made his oral motion for Judge Dranginis' disqualification.Stated differently, the two motions were mutually exclusive such that the plaintiff cannot now successfully argue that the record is adequate for this court to review the trial court's denial of his oral motion to disqualify Judge Dranginis on the basis of the record of the first motion to disqualify.Essentially, the plaintiff attempts to cure fatal procedural defects in his second motion to disqualify by tying it into and making it part of his previous motion to disqualify.We will not reward such an attempt to circumvent our well established procedural rules concerning the disqualification of judges.Moreover, the plaintiff could have requested a continuance to give him time to file a second motion to recuse and thereby to comply with Practice Book§ 1-23, but failed to do so.

"Since the [plaintiff] has failed to supply the necessary record, as was his burden, we are precluded from finding that the action of the trial judge in refusing to recuse [herself] was clearly erroneous."State v. Weber,supra, 6 Conn. App. 413.Additionally, the plaintiff has failed to marshal any support for his contention that once a judge has granted a motion to disqualify, the disqualified judge is stripped of his or her discretion on the matter and permanently barred from hearing the case, even if the grounds for disqualification cease to exist before the trial commences.

II

The plaintiff next claims that the court, in determining asset distribution, failed to take into consideration the parties' stipulation regarding the admissibility of all financial affidavits valuing real estate that comprised part of the marital estate.Specifically, the plaintiff claims that because the parties stipulated to the admissibility of such affidavits, the court"should have considered [the] evidence and awarded more of the assets to the plaintiff...."

It is well settled that in a dissolution of marriage action, the distribution of assets rests within the sound discretion of the court, which is guided by several factors set forth in General Statutes § 46b-81 (c).³"While a trial court must consider a number of factors in awarding alimony and distributing the assets of the parties, and may exercise broad discretion in that consideration... it need not recite each factor in its decision, and it is sufficient that the memorandum of decision "at least reflect a proper consideration and weighing of the factors set forth in the statute."(Citation omitted; internal quotation marks omitted.)Siracusa v. Siracusa,30 Conn. App. 560, 564, 621 A.2d 309(1993)."In determining whether the trial court abused its discretion the ultimate issue is whether the court could reasonably conclude as it did."(Internal quotation marks omitted.)Fucci v. Fucci,179 Conn. 174, 181, 425 A.2d 592(1979).

The plaintiff and the defendant had stipulated to the admissibility at trial of financial affidavits concerning the value of certain real property.Specifically, one particular financial affidavit purported to value an office condominium wherein the plaintiff conducted his medical practice.The affidavit was admitted into evidence for the court's...