Opinion
WWMFA114011541S
08-04-2017
Christina Medeiros v. David M. Medeiros
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Angelo L. dos Santos, Senior Judge.
A hearing was held on April 13, 2017 on three motions: (1) the plaintiff's motion for contempt, dated February 6, 2017 (Motion #241), (2) the plaintiff's postjudgment motion for modification, dated February 13, 2017 (Motion #240), and (3) the defendant's motion for recusal, dated March 28, 2017 (Motion #244). The plaintiff filed revised proposed orders (#246) and the defendant filed proposed orders (#242). Both parties were represented by counsel.
RELEVANT PROCEDURAL HISTORY
On April 7, 2015, the court entered orders concerning the custody and access with the parties' minor child, Aiden. On October 27, 2015, the parties entered into an agreement to engage in co-parenting counseling. On December 23, 2015 the parties named two counselors to be contacted to commence co-parenting counseling. The defendant commenced meeting with the selected counselor, Dr. Paige Westerfield, until the end of April 2016. The plaintiff also engaged in counseling with the selected counselor and continued to meet with her individually into February 2017.
On February 13, 2017, the plaintiff filed a motion for contempt alleging that the defendant failed to satisfy the order to enter into co-parenting counseling and a motion to modify the current orders, but does not specify any requested modifications to the current custody or visitation orders between the parties. Before the hearing on the two motions, defendant filed a motion seeking recusal of the court.
Motion for Recusal #244
The defendant seeks the court's recusal alleging that an appeal from the court's finding the defendant in contempt in the past, precludes the court from hearing and considering the remaining pending motion. In the alternative, the defendant seeks to transfer the case to the Tolland Judicial District. In his motion for recusal, the defendant alleges that, " he has an Appeal presently pending concerning decisions and orders issued by Judge Dos Santos, and any decision made by Judge Dos Santos concerning the pending Motions may be prejudiced by the fact of a pending Appeal. In said Appeal, the parties have been ordered to file additional briefs concerning issues similar and related to those presented by the pending motions."
Canon 3(c) of the Code of Judicial Conduct governs judicial disqualification. That canon provides in relevant part that " (1) A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: (A) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding . . ." Canon 3(c) thus encompasses two distinct grounds for disqualification: actual bias and the appearance of partiality. " The appearance and the existence of impartiality are both essential elements of a fair trial." (Internal quotation marks omitted.) Consiglio v. Consiglio, 48 Conn.App. 654, 659, 711 A.2d 765 (1998). As such, " [t]o prevail on its claim of a violation of this canon, [a party] need not show actual bias. The [party] has met its burden if it can prove that the conduct in question gave rise to a reasonable appearance of impropriety." Abington Ltd. Partnership v. Heublein, 246 Conn. 815, 819-20, 717 A.2d 1232 (1998), aff'd after remand, 257 Conn. 570, 778 A.2d 885 (2001). As the defendant has not alleged actual bias, the proper inquiry is whether the involvement of a trial judge in a prior motion for contempt and the court's finding of contempt by the defendant give rise to a reasonable appearance of impropriety.
" Disqualification of a trial judge is not dependent upon proof of actual bias. See Darcey v. Connecticut Bar Ass'n, 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, [187 Conn. 163, 170, 444 A.2d 915 (1982)]. 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)." LaBow v. LaBow, supra, 13 Conn.App. at 334, 537 A.2d 157. Unlike Cameron, supra, where there were many instances where the trial judge acted improperly, the defendant only cites the pending appeal as the reason for the defendant's requested recusal.
Since the court heard these motions, the appellate court has ruled on the court's prior finding of contempt by the defendant. Although the appellate court affirmed the court's finding of contempt by the defendant, it reversed in part and ordered the court to vacate the $800 fines imposed on the defendant. Medeiros v. Medeiros, 175 Conn.App. 174 (2017). Although the court can properly rule on the two remaining pending motions, the appellate court's order vacating the $800 might lead one to conclude that the court is no longer impartial. Canon 3(c)(1) of the Code of Judicial Conduct requires a judge to disqualify himself in any proceeding in which judicial impartiality might reasonably be doubted.
Therefore, the defendant's motion for recusal is granted. The two remaining motions (Motion for Modification #240 and Motion for Contempt #241) are referred to another court for a hearing on the merit of the motions.