Opinion
No. FA 96-4108659
April 6, 2010
MEMORANDUM OF DECISION ON APPEAL FROM FAMILY SUPPORT MAGISTRATE
Before the court at this time is plaintiff's appeal (#474), filed February 3, 2010, from a January 20, 2010, decision of the Family Support Magistrate (Adams, FSM). The decision appealed from is the magistrate's order that plaintiff pay $4,217 in fees to a witness whom he had subpoenaed.
I. AUTHORITY OF THIS COURT TO ACT UPON APPEAL
CONN. GEN. STAT. § 46b-231(n)(1) provides that a person who is aggrieved by a final decision of a family support magistrate may obtain judicial review by way of appeal. Any such appeal must be filed not later than fourteen days following the decision appealed from. There is no question here that plaintiff's appeal has been timely filed.
Subsection (5) permits a party to apply for leave to introduce additional evidence, but neither party so moved. This court heard oral argument from the parties at short calendar on March 1, 2010. Accordingly, the court decides this appeal on the strengths of their arguments on that date, the transcript of the January 20 hearing, and certain matters of record as identified below.
Subsection (7) of the statute provides that the court may reverse or modify the decision of the magistrate if substantial rights of the appellant have been prejudiced because the decision of the magistrate is: (A) in violation of constitutional or statutory provisions; (B) in excess of the statutory authority of the family support magistrate; (C) made upon unlawful procedure; (D) affected by other error of law; (E) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
II. PROCEEDINGS ON THE MAGISTRATE'S DOCKET CT Page 8041
Recent proceedings in this case have been pending on the dockets both of the court and of the family support magistrate. On December 15, 2009, defendant moved for a modification of alimony and support. She alleged that she had lost her employment. Her motion, along with others dealing with other topics, came before this court on the short calendar of January 11. Since on a prior occasion this court had determined that the magistrate has oversight of these financial concerns, defendant's motion was referred to that tribunal and set for a hearing on January 20.
Both parties have been self-represented at all times pertinent to this appeal. To defend against his former wife's motion, plaintiff applied for leave to issue a subpoena upon one Leon Sudowski as ". . . the boyfriend, fiancé, or husband of Bonnie Rubenstein, and he may be her third party income provider"; see subpoena application as of record appears (#471). That application is dated January 14, although for unknown reasons it was not date-stamped by the clerk's office. However, it was granted by the court (Young, J.) on January 15, and thus must have been filed not later than January 15. The return of the marshal indicates that he served it upon Mr. Sudowski on January 19.
The transcript reveals that this modification hearing was the thirty-ninth matter called by the magistrate on January 20, although it is silent as to when the hearing commenced or concluded. The transcript runs to twenty pages in length, suggesting that the proceedings occupied between twenty and thirty minutes of the magistrate's time on what was obviously a busy day. Within that time, four persons were placed under oath and addressed the court — both parties, Sudowski, and the Support Enforcement Officer, Sylvia Carter. Their input was a hodgepodge of information, demands, concerns and queries, throughout which the magistrate's principal objectives were to ascertain what issues were before him and when a meaningful hearing could be scheduled to resolve those issues.
Curiously, the first of the four to speak was non-party witness Sudowski. As the matter was called, without invitation and before either party had said a single word, he rose to address the court concerning his fee. He identified himself as "Doctor" Leon Sudowski, "DC FIACA." He further identified himself as an "expert witness" attending in response to a subpoena he characterized as late-filed and claimed disrupted his practice. He demanded the sum of $4,217, consisting of $4,000 as a testimonial fee and $217 "for his staff." Furthermore, he asserted the patient/physician privilege on behalf of the defendant. The discussion over the ensuing several minutes turned to various other details such as the presence of or need for the guardian ad litem, the amount of time that would be needed to conduct the hearing, and the availability of dates to which defendant's motion could be specially assigned. With those logistical concerns still in flux, Dr. Sudowski redirected the discussion to his demand for fees based upon his "expert" status.
He did not explain the meaning of the acronym "DC FIACA." Online medical encyclopedia "Encyclo" ( http://www.encvclo.co.uk) ascribes thirty possible definitions to "DC," with "Doctor of Chiropractic" being the one most likely applicable here. The same authority defines FIACA as "Fellow of the International Academy of Clinical Acupuncture." See, United States v. Bari, No. 09-1074-cr, US Court of Appeals, Second Circuit, March 22, 2010 (slip opinion).
The magistrate's response to this reiteration was immediately receptive. At page 15, he replied to the demand: "I think it's not unreasonable for the witness to ask for a ruling on this even though I wish I knew a lot more about the case before doing so." He thereupon granted the request for the $4,217 award. A moment later, when plaintiff requested "a hearing for that," the magistrate commented that "you can take it up with the magistrate (sic). That's the ruling. If there's some reason to reconsider that, that's another matter but that's the ruling." A few minutes hence, after the discussion had once again wandered on to other topics, plaintiff renewed his request for an opportunity "to make an argument regarding the fees that you've awarded," to which the magistrate responded that "you can appeal it if you wish or you can file other motions as may be appropriate, but that's the ruling." This was the final word on that subject for the day.
From his remarks interwoven with the above, it is apparent that the magistrate based his ruling upon the "expert" status of the witness, and upon what he implicitly found to be the plaintiff's litigation misconduct in having this "expert" subpoenaed at the last moment thereby allegedly causing him to shut down his practice for the day in court. There is no evidence in the transcript that the magistrate examined the text of the application for subpoena which the court had viewed and granted on January 15.
III. LEGAL DISCUSSION
First, it appears beyond dispute that the order of the magistrate was final as to this item, and that the plaintiff is aggrieved by the order. It is therefore ripe for appeal.
Next, the question of whether or not Dr. Sudowski was appearing as an expert or not was one of fact, and was disputed. This court notes that the application for a subpoena describes Dr. Sudowski as the "boyfriend, fiancé, or husband" of the defendant, that is, someone whose presence at a hearing on modification of financial orders would hardly be considered unusual, and a subpoena directed to a person in that status would not be presumptively vexatious. Indeed, the immediately-following language of the application — that this witness "may be her third party income provider" — makes him exactly the kind of witness from whom the factfinder should hear in order to conform to the rulings in Unkelbach v. McNary, CT Page 8043 244 Conn. 350 (1998) and Zahringer v. Zahringer, 262 Conn. 360 (2003)(". . . payments that are made regularly and consistently to one of the former spouses are to be considered by a trial court in setting financial orders . . ."), 262 Conn. 360, at 368. The fact that this witness is a doctor does not transmute him into an expert each and every time he appears before a tribunal, and his claims to the magistrate in this instance as to the reason he was placed under subpoena are completely contradicted by the indications in plaintiff's application.
It is elementary that before a tribunal can reach a finding upon a disputed question of fact, opportunity must be provided to all parties to confront the evidence adduced and offer conflicting evidence, itself subject to confrontation by the initial proponent. "Although the extent of the cross examination is within the court's discretion . . ., cross-examination is a right, and its undue restriction is error." The need for acid test of cross-examination here is higher than it would otherwise be had the witness's demand not come "out of the blue," but rather had been presented by written notice to plaintiff that he would be exposed to such an award. Here, the manner in which this issue was raised is akin to what in street language would be referred to as a "sucker punch," that is, an aggressive blow delivered without forewarning. Plaintiff twice requested a "hearing" to subject the witness's assertions to cross-examination, both of which the magistrate denied peremptorily. In so doing, he deprived plaintiff of a fair hearing on this important point.
Colin C. Tait and Eliot D. Prescott, Tait's Handbook of Connecticut Evidence § 6.16.1 (4th ed. 2008) (citations omitted).
In addition to this procedural shortcoming, there does not appear to be any substantive underpinning for the order of payment of this award. CONN. GEN. STAT. § 52-260 outlines the circumstances under which a tribunal may award fees to a witness. Subsection (a) affords ordinary fact witnesses a nominal fee which, the court notes, is routinely tendered to a witness by the marshal and then included by him in the bill for service; such a nominal fee is not the issue here. Subsection (f) deals with the fee requests of experts testifying in a case. In Dematteo Construction Co. v. City of New London, 236 Conn. 710 (1996), our supreme court ruled that "[b]y its express terms, § 52-260(f) treats as taxable only those costs that arise from an expert's testimony at trial . . ." 236 Conn. 710, 717 (emphasis added). In Arnone v. Town of Enfield, 79 Conn.App. 501 (2003), the appellate court held that fee award statutes are in derogation of the common law and must be strictly construed, and that nontestimonial charges are not provided for by this statute. Dr. Sudowski gave no testimony as an expert, and such testimony is a prerequisite to an award in his favor. To the extent that the magistrate's order was premised upon Dr. Sudowski's "expert" status, the court finds that order improper for exceeding the statute's terms.
Conversely, if the award was predicated upon conduct by plaintiff which the magistrate sought to punish or deter, this court finds that no such occasion for punishment or deterrence exists in this record. Practice Book § 7-19 authorizes a party representing himself to file an application for the issuance of a subpoena to compel the attendance of "necessary witnesses" in connection with any civil matter. Plaintiff availed himself of this provision not later than on January 15. CONN. GEN. STAT. § 52-143 provides that such subpoenas be served upon the witness "not less than eighteen hours prior to the time designated for the person summoned to appear." There is no indication in the record that Dr. Sudowski received the subpoena less than eighteen hours prior to the time designated for him to appear. Plaintiff filed for a subpoena within three or at most four days of his being informed that a hearing would be held on January 20, and five calendar days before that hearing. He did so in the manner prescribed, and his application was approved by a judge of this court. The magistrate's imposition upon him of a sanction of $4,217 was unauthorized and could only have an undeservedly chilling effect upon his ability to pursue a perhaps legitimate defense against his ex-wife's motion to open and modify.
Indeed, if late service were truly the problem, Dr. Sudowski's dramatic demands to the magistrate were not the appropriate remedy. Instead, he ought to have sought a protective order.
In addition to the numerous other dispositive defects inherent in the issuance of this award, its amount, incidentally, shocks the conscience of this court. Connecticut Sav. Bank v. Obenauf, 59 Conn.App. 351 (2000).
IV. CONCLUSION AND ORDER
For the foregoing reasons, this court concludes that the magistrate's fee award in favor of Dr. Sudowski exceeds the magistrate's statutory authority, was made upon unlawful procedure in that it deprived plaintiff of his right of cross-examination, and was an unwarranted exercise of such discretion as a magistrate may possess to police a litigant's abuse of legal process. Accordingly, the plaintiff's appeal is sustained, and the award vacated.