Opinion
FSTFA094016002S
05-16-2017
Nelson M. Pena v. Laura Gladstone
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR DISQUALIFICATION DATED MARCH 22, 2017 (#388)
Robert L. Genuario, J.
I. INTRODUCTION
The plaintiff has moved to disqualify the Honorable Erika M. Tindill " from any further proceedings relating to the plaintiff's postjudgment motion for counsel fees (#322)." Rather than decide the motion to disqualify herself, Judge Tindill has referred the motion to the undersigned for consideration and decision. Oral argument was held on May 1, 2017.
II. BACKGROUND
While more details involving the background and litigation history of what the Appellate Court has described as " a contentious family case, " can be found in the Appellate Court decision in Pena v. Gladstone, 168 Conn.App. 141, 144 A.3d 1085 (2016) (hereinafter Pena I ), for purposes of this motion to disqualify the following background is pertinent.
The parties were divorced on August 17, 2010. Pursuant to the divorce decree the defendant was awarded sole legal and physical custody of the parties' minor child. The plaintiff was provided with liberal parenting rights consistent with a separation agreement executed by the parties. See Pena I at 143. The litigation continued between the parties relating to parenting issues. In May 2014 the plaintiff filed a motion for modification of legal custody seeking joint legal custody. At the same time the plaintiff filed a motion for attorneys fees in an amount sufficient to prosecute the motion for modification. On November 19, 2014 the court (Heller, J.) issued a memorandum of decision and ordered the defendant to pay $75,000 towards the plaintiff's attorneys fees. While the trial court, in entering its decision awarding $75,000 in attorneys fees included fees for past legal services, fees related to the motion for modification and a retainer for future legal services, the court did not specify how much of the $75,000 was allocated as to each of the three components that comprised the total amount of $75,000. The defendant appealed the decision awarding the $75,000 in attorneys fees and on appeal the Appellate Court held as follows:
the judgment is reversed only as to the award of attorneys fees for past legal services rendered that were unrelated to the plaintiff's May 6, 2014 motion for modification of custody, and the case is remanded for further proceedings on the plaintiff's motion for attorneys fees, consistent with this opinion to reduce the amount of the award by the amount of past legal fees awarded to the plaintiff that were not directly related to the prosecution of his motion for modification of custody. The judgment is affirmed in all other respects.Pena I at 175. On December 19, 2014 the plaintiff filed a motion for attorneys fees to defend the appeal representing among other things that he was unemployed was not earning income and that he was unable to pay counsel fees. This motion for counsel fees to defend the appeal was heard by the court (Tindill, J.) on February 23, 2015. Both the plaintiff and the defendant testified at the hearing. The plaintiff was subject to extensive cross examination. Pena v. Gladstone, 168 Conn.App. 175, 180, 146 A.3d 51 (2016) (hereinafter Pena II ). The court delivered its decision orally from the bench on the same day as the hearing. The court indicated that it found the plaintiff's testimony regarding his expenses and available financial resources, not to be credible. It determined that the plaintiff could earn a minimum of $90,000 per year in the field in which he was actively looking for work, and that, given his age, experience and education level, he had an earning capacity of at least $200,000 per year. Pena II at 183.
In response to an order of the Appellate Court requiring the court to articulate the basis for its finding that the plaintiff had an earning capacity of $200,000 annually, the court wrote:
The court found that the plaintiff's testimony regarding his current earnings, monetary and other contributions from his mother, current rent, payments to his attorney, unemployment compensation, and American Express credit card were neither forthcoming nor honest; the information on the plaintiff's sworn financial affidavit regarding his current earnings and expenses was not truthful; and his claimed expenses and financial resources were not credible . . . [the court further] noted that [the plaintiff's] testimony as to salary requirements compensation discussions or offers from companies where he had sought employment was dishonest and that he concealed the amount of potential compensation for such jobs which constituted a violation of his duty to provide a full and frank disclosure to the court.Pena II at 184-85.
On appeal the Appellate Court found that Judge Tindill's conclusion that the plaintiff had an earning capacity of $200,000 annually was not supported by the record and was error, albeit harmless error, since it was " not the only factor that the court expressly considered or may have considered in determining that he had resources or could garner the resources to pay $25,000 in appellate attorneys fees." Pena II at 190. The Appellate Court affirmed the judgment of the court (Tindill, J.) denying the plaintiff's motion for appellate attorneys fees in Pena II .
Currently pending before the court is the plaintiff's motion for attorneys fees that has been remanded by the Appellate Court in Pena I for further proceedings consistent with that opinion. Judge Heller has, sua sponte, recused herself from further proceedings relating to the postjudgment motion for counsel fees. The plaintiff now seeks to disqualify Judge Tindill " from any further proceedings relating to the plaintiff's postjudgment motion for counsel fees (#332)."
III. DISCUSSION
A. The Plaintiff's Claims
At the heart of the plaintiff's claims, in support of his motion to disqualify, is his argument that Judge Tindill's continued participation in the case would give rise to the appearance of, if not the actual existence of, partiality since she has already found on the record that the plaintiff's testimony was not credible and that the plaintiff's testimony was neither forthcoming nor honest and that the plaintiff failed to provide a full and frank disclosure to the court. The plaintiff additionally argues that Judge Heller who found in favor of the plaintiff on a motion for attorneys fees has recused herself and that Judge Tindill's failure to recuse herself would by contrast give rise to an appearance of impropriety since Judge Tindill in deciding the plaintiff's subsequent motion for counsel fees ruled against the plaintiff.
B. Applicable Standards
Practice Book § 1-22(a) states in pertinent part:
A judicial authority shall, upon motion of either party or upon its own motion, be disqualified from acting in a matter if such judicial authority is disqualified from acting therein pursuant to Rule 2.11 of the Code of Judicial Conduct or because the judicial authority previously tried the same matter and a new trial was granted therein or because the judgment was reversed on appeal.
Connecticut Practice Book § 1-22(a). Of course Judge Tindill did not try the motion for attorneys fees that is the subject of the remand, nor was the decision that she rendered with regard to the motion for appellate counsel fees reversed on appeal. Thus, the only grounds for disqualifying Judge Tindill would be pursuant to Rule 2.11 of the Code of Judicial Conduct. The only grounds that the plaintiff has raised pursuant to Code of Judicial Conduct 2.11 is the provision of Rule 2.11(a)(1) which states
A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned including, but not limited to the following circumstances: (1) the judge has a personal bias or prejudice concerning a party or a party's lawyer or personal knowledge of facts that are in dispute in the proceeding.
Our Appellate Court has stated:
The standard for determining whether a judge should recuse himself or herself pursuant to [Cannon 2.11] is well established. The standard to be employed is an objective one, not that judge's subjective view as to whether he or she could be fair and impartial in hearing the case . . . Any conduct that would lead a reasonable [person] knowing all the circumstances to the conclusion that the judge's impartiality might reasonably be questioned is a basis for the judge's disqualification.St. Germain v. LaBrie, 108 Conn.App. 587, 595, 949 A.2d 518 (2008). In the St. Germain case the court repeated the longstanding rule that " adverse rulings by the judge do not amount to evidence of bias sufficient to support a claim of judicial disqualification." Id. at 596 quoting State v. Bunker, 89 Conn.App. 605, 613, 874 A.2d 301 (2005), appeal dismissed, 280 Conn. 512, 909 A.2d 521 (2006).
The case of Tracey v. Tracey, 97 Conn.App. 278, 903 A.2d 679 (2006), provides clarity with regard to the application of this standard. While first noting that it is common practice in Connecticut courts for the same trial judge who has rendered a judgment dissolving a marriage to subsequently decide a subsequent motion for fees to defend an appeal, it rejected the notion that " once a trial judge decides a matter before him or her, the judge necessarily is biased against any subsequent action challenging the validity or propriety of that judgment." Tracey at 283. Acknowledging that each claim of judicial impropriety must be evaluated on its own facts the Tracey court went on to discuss three " precepts" set forth in case law addressing the appearance of impropriety.
The first concerns the so-called extra judicial source rule, which holds that the bias or prejudice sufficient to result in disqualification " must stem from a extra judicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case."Tracey at 283-84 quoting United State v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966). The second precept pertains to the judge's involvement in multiple proceedings with the same party. " Courts have routinely held that the prior appearance of a party before a trial judge does not reflect upon the judge's impartiality in a subsequent action involving that party." State v. Webb, 238 Conn. 389, 461, 680 A.2d 147 (1996). The third precept is that speculation is insufficient to establish the appearance of an impropriety.
When this court considers the first and second precepts in relation to the case at bar it becomes clear that there is no basis for disqualification of Judge Tindill. There is no allegation or scintilla of a suggestion that Judge Tindill maintains any bias or prejudice against the plaintiff based upon an extra judicial source. Rather the plaintiff posits that Judge Tindill's candid explanation of her evaluation of the plaintiff's actual testimony and other evidence that was properly before the court give rise to grounds that would support her disqualification. In this regard Judge Tindill's conclusions with regard to the credibility of the plaintiff's testimony in the proceeding that was tried before her does not exhibit a bias or prejudice from a " extra judicial source" but rather articulates her conclusions from the evidence that she actually heard. To suggest that such conclusions from evidence properly presented before her would disqualify Judge Tindill from further proceedings would run afoul of the second precept set forth in the Tracey case which states that " the prior appearance of a party before a judge does not reflect upon the judge's impartiality in a subsequent action involving that party." Id. at 284. Since the first two precepts effectively eliminate the claimed grounds which the plaintiff argues support his motion for disqualification, the plaintiff is left with mere speculation.
The conclusion reached by this court is supported by the decision in Barca v. Barca, 15 Conn.App. 604, 546 A.2d 887 (1988). In Barca the trial court made several comments about testimony during and after the examination of the defendant therein and certain witnesses. In Barca after the defendant's cross examination the court expressed the opinion that " there is something smelling in Denmark" and after cross examination of the defendant's father the court told the witness that in her judgment the defendant had " lied." The Barca court distinguished the trial court's comments therein with the trial court's conduct in the case of Cameron v. Cameron, 187 Conn. 163, 444 A.2d 915 (1982). In Cameron the trial court had made comments concerning the credibility of a witness who had not yet testified. In Barca the trial court's comments occurred at the end of the trial during the testimony of the defendant's last witness. The Barca court reiterated that " the alleged bias and prejudice, to be disqualifying, must stem from an extra judicial source and result in an opinion on the merits on some basis other than what the judge learned from his [or her] participation in the case." Barca at 613. (Internal quotations and citations omitted, emphasis in original.)
Simply put there is no basis for concluding that Judge Tindill's evaluation of the plaintiff's testimony from over two years ago was based upon any extra judicial sources. Nor does her decision, notwithstanding the fact that it was adverse to the plaintiff and based at least in part in her judicial evaluation of his in-court testimony, disqualify her from hearing further proceedings in the same case consistent with the second precept.
Finally the fact that Judge Heller reached a decision that was favorable to the plaintiff based upon different evidence in a different proceeding involving a different claim for attorneys fees does not provide any basis whatsoever for the disqualification of Judge Tindill. Two judges heard different evidence concerning different proceedings and concerning different requests for attorneys fees. It raises no impropriety nor any appearance of impropriety that one issued a ruling favorable to the plaintiff and one issued a ruling favorable to the defendant. Nor does Judge Heller's decision to recuse herself lend any basis for a determination that Judge Tindill is disqualified from hearing this matter.
Since Judge Heller was reversed in part, in an exercise of caution, she may have considered the import of C.G.S. section 51-183c or Practice Book section 1-22 in determining to recuse herself. This court offers no opinion as to whether or not such recusal was required under either provision. See Lafayette Bank & Trust Company v. Szentkuti, 27 Conn.App. 15, 603 A.2d 1215 (1992).
IV. CONCLUSION
For all these reasons the motion to disqualify (#388) is denied. However, since the undersigned has taken the time to become familiar with the Appellate Court mandate, regarding the issue of attorneys fees, issued as a part of the remand, in the interest of judicial economy, the undersigned will hear the issue of attorneys fees consistent with that remand. Other issues that have been or will be raised in this case will be assigned in the normal course.