Schimenti v. Schimenti , 181 Conn. App. 385 ( 2018 )

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HEATHER SCHIMENTI v. MATTHEW SCHIMENTI
(AC 39175)
Lavine, Sheldon and Bishop, Js.
Syllabus
The defendant, whose marriage to the plaintiff previously had been dis-
solved, appealed to this court from the postjudgment orders of the trial
court requiring him to pay one half of an initiation fee for the plaintiff’s
full membership into a certain country club and certain of her counsel
fees. Pursuant to an agreement of the parties, which was incorporated
into the modified judgment of dissolution, the defendant agreed to pay
50 percent of the plaintiff’s initiation fee to the subject country club.
The plaintiff subsequently filed a number of motions for contempt,
including one concerning the defendant’s alleged failure to comply with
the country club initiation fee provision in the modified judgment. The
plaintiff also sought counsel fees related to the prosecution of the
motions. Following a hearing, the trial court, although not finding the
defendant in contempt, determined that the phrase ‘‘initiation fee’’ in
the modified judgment was ambiguous and that the plaintiff was entitled
to a senior membership rather than a lower level of membership as the
defendant had argued. The defendant did not, at any time, request that
the court recuse itself or move for disqualification of the trial judge.
On appeal, the defendant claimed, for the first time, that the trial court’s
orders were improperly based on the trial judge’s admitted bias and
prejudice arising out of her personal experience as a female golfer. Held
that under the particular circumstances of this case, the trial court
committed plain error in making the subject orders and a failure to
reverse the judgment would result in manifest injustice to the defendant:
the trial judge failed to act impartially and committed obvious error in
issuing her orders, as the record clearly revealed that, in determining
the level of membership to which the plaintiff was entitled, the judge,
instead of ascertaining through a fact bound inquiry the intent of the
parties in using the ambiguous phrase ‘‘initiation fee,’’ ascribed a mean-
ing to that phrase derived solely from her own perception of the subordi-
nate role to which women golfers are relegated in country clubs, and,
therefore, the trial judge, in reaching her decision, improperly relied
exclusively on her own prejudices born of her life experiences, instead
of well established law; accordingly, the trial court’s orders concerning
the initiation fee and for the payment of counsel fees could not stand.
Argued January 10—officially released April 24, 2018
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Danbury and tried to the court, Winslow, J.;
judgment dissolving the marriage and granting certain
other relief, from which the defendant appealed to this
court; thereafter, the court, Hon. George Levine, judge
trial referee, rendered a modified judgment in accor-
dance with the parties’ agreement and the appeal was
withdrawn; subsequently, the court, Winslow, J.,
granted in part the plaintiff’s motion for contempt and
issued certain orders; thereafter, the court, Winslow,
J., denied the defendant’s motion to reargue, and the
defendant appealed to this court; subsequently, the
defendant filed an amended appeal with this court.
Reversed; further proceedings.
Jeffrey J. White, with whom, on the brief, were Kath-
leen E. Dion and Kelly Frye Barnett, for the appel-
lant (defendant).
Thomas M. Shanley, for the appellee (plaintiff).
Opinion
BISHOP, J. In this postjudgment marital dissolution
matter, the defendant, Matthew Schimenti, appeals
from the trial court’s orders requiring him to pay for
one half of the initiation fee for a full membership into
a country club for the plaintiff, Heather Schimenti, and
certain of her counsel fees. On appeal, the defendant
claims that the court’s orders were improperly based
on the trial judge’s admitted bias and prejudice arising
from her personal experience as a female golfer. He
additionally claims that the court’s order requiring him
to pay the plaintiff’s counsel fees constituted an abuse
of discretion where the court made no finding of con-
tempt on the basis of his challenged conduct and the
plaintiff had ample financial means to pay her own
counsel fees. We reverse the judgment of the trial court.
The underlying facts are uncontroverted. Following
a trial before the court, Winslow, J., the marriage of
the parties was dissolved by a memorandum of decision
dated November 18, 2014. As part of its judgment, the
court entered various orders regarding custody, sup-
port, periodic and lump sum alimony, and property.
Included in these orders was a provision that the defen-
dant would ‘‘retain sole rights to the country club mem-
bership at Silver Spring Country Club.’’ Shortly
thereafter, on December 5, 2014, the defendant
appealed to this court, outlining in his preliminary state-
ment of issues numerous claims as to the trial court’s
financial orders.1 In conjunction with the appeal, the
parties participated in a preargument conference.2 At
the conference, the parties reached an agreement
resolving all the issues on appeal. Accordingly, on May
21, 2015, their agreement was memorialized and entered
by the court, Hon. George Levine, judge trial referee,
as a modified judgment. The modified judgment
included the following provision pertinent to the issues
now before this court: ‘‘The following sentence shall
be added to paragraph 38 [of the original judgment]:
The defendant agrees to pay 50 percent of the plaintiff’s
initiation fee to Innis Arden Country Club.’’3 Thereafter,
upon the entering of the modified judgment, the appeal
was withdrawn.
In spite of the parties’ accord, disagreements between
them continued unabated. By a pleading dated August
17, 2015, the plaintiff moved that the defendant be held
in contempt for his alleged failure to comply with the
life insurance provision of the dissolution judgment, as
modified. Later, by a pleading dated October 6, 2015,
the plaintiff moved that the defendant be held in con-
tempt for not timely or fully paying his court-ordered
child support. On October 13, 2015, the plaintiff moved
that the defendant be held in contempt for his alleged
failure to comply with the country club initiation fee
provision in the modified judgment. The plaintiff also
sought counsel fees in conjunction with the prosecution
of these postjudgment contempt motions. Finally, by a
motion dated December 9, 2015, the plaintiff sought an
order that the defendant be required to timely meet his
obligation to make periodic payments to her in accor-
dance with the terms of the judgment, as modified. That
motion was subsequently marked ‘‘off.’’
These postjudgment matters first appeared on the
short calendar docket on December 14, 2015. On that
date, counsel and the court, Winslow, J., engaged in a
discussion regarding the nature of the pending motions
with an eye toward having them heard on a later date.
During this colloquy, the defendant’s counsel stated
his belief that the court would need to hear evidence
concerning the defendant’s intentions at the time he
entered into the postjudgment country club initiation
fee agreement. The court, however, disagreed, stating
as follows that the plaintiff should be entitled to a mem-
bership level at the Innis Arden Country Club equal to
that of the defendant at his own club: ‘‘Whatever it is,
it’s going to be the same for her.’’4
On February 8, 2016, the court conducted a hearing
on the pending motions for contempt and for counsel
fees.5 Heard and decided by the court on that date were
the following: the plaintiff’s request for counsel fees in
conjunction with her motion for contempt dated August
17, 2015, regarding life insurance;6 the plaintiff’s motion
for contempt dated October 6, 2015, regarding child
support and request for counsel fees in conjunction
with that motion; and the plaintiff’s motion for con-
tempt dated October 13, 2015, alleging the defendant’s
failure to comply with the country club initiation fee
provision in the modified judgment and a request for
counsel fees in conjunction with that motion. Although
not finding the defendant in contempt, the court
ordered the defendant to pay one half of the $70,000
initiation fee for a senior membership at the Innis Arden
Country Club and to contribute the sum of $5750 toward
the plaintiff’s counsel fees relating to the life insurance,
child support, and country club initiation fee contempt
motions. During the hearing, in response to the request
of the defendant’s counsel to introduce evidence of the
plaintiff’s golf history, the court stated: ‘‘Don’t care what
her golf history is, it’s what her future is going to be.’’
Subsequently, the defendant filed a motion with the
court to reargue and to reconsider its orders. The court
conducted a hearing on April 18, 2016, but denied the
motion to reargue. As part of its reasoning for the denial,
the court stated: ‘‘I don’t think it was because I had a
misapprehension of facts. I think it was because I took
what facts were presented and applied my prejudices,
and every judge has—has life history, and life experi-
ence that comes out, perhaps, in the way that we rule
on certain things. And you happened to have hit a nerve
on this one.’’ This appeal followed.
We are mindful that the defendant did not, at any
time, ask the court to recuse itself or move for disqualifi-
cation of the judge. Thus, the defendant’s claim of judi-
cial bias is raised for the first time on appeal.7 At the
outset, we acknowledge that ordinarily a reviewing
court will not entertain an issue raised for the first time
on appeal. White v. Mazda Motor of America, Inc., 313
Conn. 610, 619, 99 A.3d 1079 (2014). We also are mindful
that although this court may review an unpreserved
claim of judicial bias for plain error, not every claim
of partiality warrants reversal on the basis of plain error.
See, e.g., State v. D’Antonio, 274 Conn. 658, 690–91, 877
A.2d 696 (2005) (although it was improper for trial court
to sentence defendant after actively participating in
negotiations, court’s conduct did not rise to level of
bias or implicate integrity of process). Nevertheless,
under the present circumstances, we find it necessary
to review the defendant’s claim of judicial bias under
our doctrine of plain error. See Cameron v. Cameron,
187 Conn. 163, 168, 444 A.2d 915 (1982) (Supreme Court
reviewed unpreserved claim of judicial bias under plain
error because it ‘‘implicates basic concepts of fair
trial’’).
‘‘[The plain error] doctrine, codified at Practice Book
§ 60-5, is an extraordinary remedy used by appellate
courts to rectify errors committed at trial that, although
unpreserved, are of such monumental proportion that
they threaten to erode our system of justice and work
a serious and manifest injustice on the aggrieved party.
[T]he plain error doctrine . . . is not . . . a rule of
reviewability. It is a rule of reversibility. That is, it is a
doctrine that this court invokes in order to rectify a
trial court ruling that, although either not properly pre-
served or never raised at all in the trial court, nonethe-
less requires reversal of the trial court’s judgment, for
reasons of policy. . . . In addition, the plain error doc-
trine is reserved for truly extraordinary situations [in
which] the existence of the error is so obvious that it
affects the fairness and integrity of and public confi-
dence in the judicial proceedings. . . . Plain error is a
doctrine that should be invoked sparingly. . . .
Implicit in this very demanding standard is the notion
. . . that invocation of the plain error doctrine is
reserved for occasions requiring the reversal of the
judgment under review. . . .
‘‘An appellate court addressing a claim of plain error
first must determine if the error is indeed plain in the
sense that it is patent [or] readily discernable on the
face of a factually adequate record, [and] also . . .
obvious in the sense of not debatable. . . . This deter-
mination clearly requires a review of the plain error
claim presented in light of the record.
‘‘Although a complete record and an obvious error
are prerequisites for plain error review, they are not,
of themselves, sufficient for its application. . . . [I]n
addition to examining the patent nature of the error,
the reviewing court must examine that error for the
grievousness of its consequences in order to determine
whether reversal under the plain error doctrine is appro-
priate. A party cannot prevail under plain error unless
it has demonstrated that the failure to grant relief will
result in manifest injustice. . . . In State v. Fagan, [280
Conn. 69, 87, 905 A.2d 1101 (2006), cert. denied, 549
U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007)], we
described the two-pronged nature of the plain error
doctrine: [An appellant] cannot prevail under [the plain
error doctrine] . . . unless he demonstrates that the
claimed error is both so clear and so harmful that a
failure to reverse the judgment would result in manifest
injustice.’’ (Emphasis in original; internal quotation
marks omitted.) Reville v. Reville, 312 Conn. 428, 467–
69, 93 A.3d 1076 (2014). Indeed, our jurisprudence man-
dates reversal when the reviewing court determines
that manifest injustice has resulted from the trial court’s
unpreserved error. Blumberg Associates Worldwide,
Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn.
123, 150, 84 A.3d 840 (2014).8
‘‘[O]ur Supreme Court has recognized that a claim of
judicial bias strikes at the very core of judicial integrity
and tends to undermine public confidence in the estab-
lished judiciary. . . . No more elementary statement
concerning the judiciary can be made than that the
conduct of the trial judge must be characterized by the
highest degree of impartiality. If [the judge] departs
from the standard, he [or she] casts serious reflection
upon the system of which [the judge] is a part. . . .
We review this [unpreserved] claim [of partiality] there-
fore . . . under a plain error standard of review.’’
(Internal quotation marks omitted.) State v. Carlos C.,
165 Conn. App. 195, 206–207, 138 A.3d 1090, cert. denied,
322 Conn. 906, 140 A.3d 977 (2016).
The teaching of decisional law is that, although plain
error review is not automatically accorded to every
claim of judicial bias, such a claim bears close scrutiny
because it touches upon a judge’s impartiality, a core
ingredient of a fair judicial process. ‘‘In reviewing a
claim of judicial bias, this court employs a plain error
standard of review. . . . The standard to be employed
is an objective one, not the judge’s subjective view as
to whether he or she can be fair and impartial in hearing
the case. . . . Any conduct that would lead a reason-
able [person] knowing all the circumstances to the con-
clusion that the judge’s impartiality might reasonably
be questioned is a basis for the judge’s disqualification.’’
(Internal quotation marks omitted.) Id., 207.
It is axiomatic that in any judicial proceeding in a
rule of law system, the disputants are entitled to have
their issues heard and decided by an impartial arbiter.
This requirement not only benefits the litigants, but it
is an essential condition to public confidence in the
judiciary. ‘‘Of all the charges that might be leveled
against one sworn to ‘administer justice’ and to ‘faith-
fully and impartially discharge and perform all the
duties incumbent upon me,’ . . . a charge of bias must
be deemed at or near the very top in seriousness, for
bias kills the very soul of judging—fairness.’’ (Citation
omitted.) Pac-Tec, Inc. v. Amerace Corp., 903 F.2d 796,
802 (Fed. Cir. 1990), cert. denied sub nom. Perry v.
Amerace Corp., 502 U.S. 808, 112 S. Ct. 49, 116 L. Ed.
2d 27 (1991).
In assessing a claim of judicial bias, we are mindful
that adverse rulings, alone, provide an insufficient basis
for finding bias even when those rulings may be errone-
ous. Massey v. Branford, 118 Conn. App. 491, 502, 985
A.2d 335 (2009), cert. denied, 295 Conn. 913, 990 A.2d
345 (2010); see also 46 Am. Jur. 2d 267, Judges § 141
(2017). ‘‘[O]pinions formed by the judge on the basis
of facts introduced or events occurring in the course
of the current proceedings, or of prior proceedings, do
not constitute a basis for a bias or partiality motion
unless they display a deep-seated favoritism or antago-
nism that would make fair judgment impossible. Thus,
judicial remarks during the course of a trial that are
critical or disapproving of, or even hostile to, counsel,
the parties, or their cases, ordinarily do not support a
bias or partiality challenge. They may do so if they
reveal an opinion that derives from an extrajudicial
source; and they will do so if they reveal such a high
degree of favoritism or antagonism as to make fair
judgment impossible.’’ (Emphasis in original.) Liteky v.
United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 127 L.
Ed. 2d 474 (1994).
Before we reach the principal issue on appeal, we
discuss, generally, the task of a court when confronted
with the language of a marital dissolution judgment
based on an agreement of the parties.9 ‘‘If the language
of a contract is clear and unambiguous, the intent of the
parties is a question of law, subject to plenary review.’’
Eckert v. Eckert, 285 Conn. 687, 692, 941 A.2d 301 (2008).
Conversely, if the language of an agreement is not clear
and is ambiguous, the court’s responsibility is to ascer-
tain the intent of the parties in using the language under
review. In such a situation, it is always appropriate
and likely necessary for the court to consider extrinsic
evidence of the parties’ intent in employing the language
under scrutiny. See Hare v. McClellan, 234 Conn. 581,
597, 662 A.2d 1242 (1995) (‘‘extrinsic evidence is always
admissible to explain an ambiguity appearing in the
instrument’’ [internal quotation marks omitted]); see
also Lakeview Associates v. Woodlake Master Condo-
minium Assn., Inc., 239 Conn. 769, 780–81, 687 A.2d
1270 (1997) (‘‘if the meaning of the language contained
in [an instrument] is not clear, the trial court is bound
to consider any relevant extrinsic evidence presented
by the parties for the purpose of clarifying the
ambiguity’’).
These general rules of contract interpretation pertain
to marital dissolution agreements. ‘‘It is well established
that a separation agreement that has been incorporated
into a dissolution decree and its resulting judgment
must be regarded as a contract and construed in accor-
dance with the general principles governing contracts.
. . . When construing a contract, we seek to determine
the intent of the parties from the language used interpre-
ted in the light of the situation of the parties and the
circumstances connected with the transaction. . . .
[T]he intent of the parties is to be ascertained by a fair
and reasonable construction of the written words and
. . . the language used must be accorded its common,
natural, and ordinary meaning and usage where it can
be sensibly applied to the subject matter of the contract.
. . . When only one interpretation of a contract is possi-
ble, the court need not look outside the four corners
of the contract. . . . Extrinsic evidence is always
admissible, however, to explain an ambiguity appearing
in the instrument. . . . When the language of a contract
is ambiguous, the determination of the parties’ intent
is a question of fact.’’ (Citations omitted; emphasis omit-
ted; internal quotation marks omitted.) Isham v. Isham,
292 Conn. 170, 180–81, 972 A.2d 228 (2009).
‘‘A contract is unambiguous when its language is clear
and conveys a definite and precise intent. . . . The
court will not torture words to impart ambiguity where
ordinary meaning leaves no room for ambiguity. . . .
Moreover, the mere fact that the parties advance differ-
ent interpretations of the language in question does not
necessitate a conclusion that the language is ambigu-
ous. . . .
‘‘In contrast, a contract is ambiguous if the intent of
the parties is not clear and certain from the language
of the contract itself. . . . [A]ny ambiguity in a contract
must emanate from the language used by the parties.
. . . The contract must be viewed in its entirety, with
each provision read in light of the other provisions . . .
and every provision must be given effect if it is possible
to do so. . . . If the language of a contract is suscepti-
ble to more than one reasonable interpretation, the
contract is ambiguous.’’ (Emphasis added; internal
quotation marks omitted.) Gabriel v. Gabriel, 324 Conn.
324, 341–42, 152 A.3d 1230 (2017).
Applying this general overlay to the facts of the pre-
sent case, the threshold task confronting the court in
this instance was to determine whether the phrase ‘‘ini-
tiation fee,’’ as used by the parties in the modified judg-
ment, was clear and unambiguous. On the basis of
representations by counsel, the Innis Arden Country
Club offers three levels of membership, with an initia-
tion fee of $70,000 for a senior membership, $38,000
for an associate membership, and $5000 for a house
membership. The court opined that it suspected that
‘‘neither party anticipated the problem’’ as to the level
of the plaintiff’s membership in their agreement, or thus
in the modified judgment, and that the judgment ‘‘is
vague, and needs to be defined.’’ We agree with this
legal determination. Because the phrase ‘‘initiation fee’’
in the modified judgment could have referred to any
one of three available levels of membership in the Innis
Arden Country Club, each with its distinct initiation
fee, that phrase, as used in the modified judgment,
was ambiguous.
Once the court made this correct determination, its
task became to ascertain, through a fact bound inquiry,
the intent of the parties in using the subject language
in their postjudgment agreement. Rather than doing so,
however, the court took a different tack. Instead of
attempting to ascertain the intent of the parties, the
court read its own outcome preference into the disputed
language. In doing so, the trial judge explicitly based
her ruling on her personal experiences and resulting
prejudices instead of seeking to determine the parties’
intent in utilizing the language in question. In other
words, the court did not undertake the fact bound task
of discerning the parties’ intent but, instead, ascribed
a meaning to the phrase ‘‘initiation fee’’ derived solely
from its own perception of the historically unfair treat-
ment of women golfers in country clubs.10
During the hearings on the motions under review,
although the trial judge made clear her intent to base
the order regarding the country club initiation fee on her
own experiences and prejudices, and not the parties’
intent, the defendant at no time sought the court’s recu-
sal; nor did the defendant bring to the judge’s attention
any concerns he may have had regarding her impartial-
ity. Rather, we reiterate, he raises the issue of judicial
bias for the first time on appeal.
‘‘[A]n appellate court may reach an unpreserved issue
sua sponte, pursuant to the plain error doctrine, if: (1)
the parties have had a chance to brief the issue; (2)
further factual findings are not needed to resolve the
issue; (3) the answer to the issue is so obvious as to
be not debatable; and (4) leaving the judgment intact
would work a manifest injustice.’’ Matos v. Ortiz, 166
Conn. App. 775, 790, 144 A.3d 425 (2016). We determine
that these requirements have all been met.
As discussed previously in this opinion, the parties
filed supplemental briefs on the issue of whether this
court should accord plain error review. The record
clearly reveals that the trial judge repeatedly stated her
perception of the subordinate role to which women are
relegated in country clubs and, borrowing from her
personal experience, determined that the plaintiff
should be entitled to precisely the same level of mem-
bership in her country club as the defendant enjoyed
in his. The court telegraphed this inclination at the
December 14, 2015 hearing on this matter and later
simply confirmed this view based, not on evidence of
the parties’ intent in utilizing the language in question,
but on the court’s stated unfavorable experiences as a
woman golfer. Thus, the court not only acted in a partial
manner, but it also made plain its biased and prejudiced
pathway to making its decision. This impropriety was
clear, obvious, and indisputable.
In response, the plaintiff correctly argues that a trial
judge need not leave insights and common sense
derived from her life’s experience at the courthouse
door. We do not disagree.11 Nevertheless, attitudes gar-
nered from personal life experience cannot serve as a
substitute for properly admitted evidence at a hearing
where the court’s mandate is to ascertain the intent of
the parties. ‘‘Judicial impartiality is the hallmark of the
American system of justice.’’ 48A C.J.S., Judges § 247
(2018). The background and experience of a trial judge
are disqualifying only if they prevent that judge from
assessing the evidence fairly and impartially. ‘‘It is
assumed that judges, regardless of their personal back-
grounds and experiences in life, will be able to set
aside any biases or predispositions they might have and
consider each case in light of the evidence presented.’’
People v. Tye, 141 Ill. 2d 1, 25, 565 N.E.2d 931 (1990),
cert. denied, 502 U.S. 833, 112 S. Ct. 112, 116 L. Ed. 2d
81 (1991). In the present case, however, the trial judge’s
responsibility did not allow her to borrow from her life
experiences extrinsic to the law. As the record plainly
reflects, the trial judge did not follow her prescribed
decision-making pathway but, instead, relied exclu-
sively on her own prejudices born of her life experi-
ences. The court’s proper focus should have been on
the well established decisional pathway for determining
the intent of parties who use ambiguous language in
a contract, requiring it to determine the meaning of
that language.
‘‘[T]he floor established by the Due Process Clause
clearly requires a fair trial in a fair tribunal . . . before
a judge with no actual bias against the defendant or
interest in the outcome of [a] particular case.’’ (Citation
omitted; internal quotation marks omitted.) Bracy v.
Gramley, 520 U.S. 899, 904–905, 117 S. Ct. 1793, 138 L.
Ed. 2d 97 (1997). In sum, the responsibility of the court
in hearing a disputed matter is to act with impartiality.
This requirement entails not only being impartial but
also acting in a manner that projects impartiality.
Because neither occurred in this case, the judgment
cannot stand as to either the court’s order concerning
the country club initiation fee or as to its order for the
payment of counsel fees.12 Reversal under the plain
error doctrine requires ‘‘the existence of [an] error so
obvious that it affects the fairness and integrity of and
public confidence in the judicial proceedings.’’ (Internal
quotation marks omitted.) Reville v. Reville, supra, 312
Conn. 468. We conclude that under the particular cir-
cumstances of the present case, not reversing the judg-
ment would result in manifest injustice to the
defendant.
The judgment is reversed and the case is remanded
for further proceedings according to law.
In this opinion the other judges concurred.
1
That appeal was docketed as AC 37462.
2
A preargument conference is a mandatory settlement meeting held in
conjunction with a pending appeal and hosted by a judge or judge trial
referee. Its purpose, generally, is to explore the possibility of resolving the
issues on appeal without the added expense and time of further pursuing
an appeal. It is generally scheduled before briefs have been written and
before oral argument in order to offer parties the possibility of an expeditious
and relatively economical path to resolution by agreement. See Practice
Book § 63-10.
3
We note that the proper name of the club is the to Innis Arden Golf
Club, Inc., but because the modified judgment, the parties, and the trial
judge referred to it as the Innis Arden Country Club, we do so as well
for consistency.
4
In explaining the nature of the agreement regarding payment of the
plaintiff’s initiation fee at the Innis Arden Country Club, the defendant’s
counsel, Attorney Daniel Kennedy, stated: ‘‘We have a disagreement over
what level of membership. She applied for the top level of full golf privileges,
when it was my client’s understanding [that] she’d be applying for, what
they refer to as, ‘house,’ but a social membership with some limited play-
ing privileges.’’
Later, in the same colloquy, the following exchange took place when the
plaintiff’s counsel indicated that he had not been aware of this issue:
‘‘[The Defendant’s Counsel]: There was correspondence, on October 6,
indicating that my client was more than willing to immediately pay half the
amount of the money for the membership level that he anticipated [the
plaintiff was] applying for. That was—
‘‘The Court: All right.
‘‘[The Defendant’s Counsel]: —I believe, a day after—
‘‘The Court: I mean, I can give you—
‘‘[The Defendant’s Counsel]: —the motion was filed.
‘‘The Court: —a quick answer on this. Do you want it? . . . What’s the
level of his ownership—of his membership at his club?
‘‘[The Plaintiff’s Counsel]: Right. And—that’s what I’m saying. It’s a
simple—
‘‘The Court: Whatever it is, it’s going to be the same for her.
***
‘‘The Court: Why wouldn’t it be the same as his membership?
‘‘[The Defendant’s Counsel]: Because she’s not—he’s an active, couple of
days a week golfer. She has never been. He never anticipated—and we’re
going to need testimony on that. He never anticipated that she was going
to apply for—
‘‘The Court: And take up golf.
‘‘[The Defendant’s Counsel]: —the full soup to nuts membership.
***
‘‘The Court: All right. Well, I mean, I’ll give you a heads up on it. I’m
gonna—I’m going to rule, if it’s left to me, but maybe you should take it
back to Judge Levine.
‘‘[The Plaintiff’s Counsel]: I don’t think there’s any need to do that, number
one. The other motion—
‘‘[The Defendant’s Counsel]: I disagree.
‘‘[The Plaintiff’s Counsel]: —is simply that—
‘‘[The Defendant’s Counsel]: I disagree with him.
‘‘The Court: Okay.’’
Following discussion on another unrelated motion, the parties and the
court agreed to continue the matter to February 1, 2016. In closing, the
court indicated it would hear all the pending motions and evidence on the
plaintiff’s contempt motion. As to the motion regarding the country club
initiation fee, the court commented:
‘‘The Court: All right. Mr. Kennedy, you got a hint on that first one?
‘‘[The Defendant’s Counsel]: Loud and clear.
‘‘The Court: Okay.’’
5
The court marked ‘‘off’’ the plaintiff’s December 9, 2015 motion for an
order because although the motion alleged that the defendant was not
making his periodic payments in a timely manner, the motion sought only
an order that the defendant comply with the terms of the judgment in this
regard. Because it did not ask that the defendant be found in contempt, the
court correctly discerned that it would be superfluous for the court to order
the defendant to do what the judgment already required him to do.
6
During the hearing, the plaintiff’s counsel represented that the life insur-
ance issue was complied with after the motion was filed. Nevertheless, the
plaintiff requested counsel fees in conjunction with the filing of that motion.
7
We note that the defendant did not, in his appellate brief or during oral
argument, explicitly request plain error review of his claim of judicial bias.
Following oral argument, this court ordered the parties to submit supplemen-
tal briefs to address the question of whether we should, sua sponte, accord
plain error review to the defendant’s unpreserved claim of judicial bias.
In response, both parties submitted briefs for this court’s review. In his
supplemental brief, the defendant raises the argument we should review
his claim of judicial bias under our plain error doctrine. In her supplemental
brief, the plaintiff contends that the defendant cannot prevail under the
plain error doctrine.
8
Specifically, our Supreme Court has stated that ‘‘we can perceive no
reason why a reviewing court should be precluded from raising issues
involving plain error or constitutional error sua sponte, as long as the court
provides an opportunity for the parties to be heard by way of supplemental
briefing and the other threshold conditions for review are satisfied.’’ Blumb-
erg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc.,
supra, 311 Conn. 161–62. From this review of decisional law, it is apparent
that a party who seeks plain error review and who adequately briefs such
a claim will, indeed, obtain a review of that claim on appeal. That party,
however, will obtain a reversal only if the reviewing court finds plain error.
9
As noted previously in this opinion, although the original judgment of
marital dissolution stemmed from a trial, the modified judgment resulted
from the parties’ postjudgment agreement.
10
Indeed, the court did not mask its approach or its outcome preferences
based on its own experiences. At the outset of the hearing on February
8, 2016, the court observed: ‘‘Working our way backwards, we had some
discussion about this country club business the last time we were in court.
We didn’t have a hearing, but I understood what the positions were on each
side. And I dropped a very heavy hint as to where the court could be coming
from.’’ See footnote 4 of this opinion.
Further on, the following exchange occurred:
‘‘The Court: ‘‘[A]ll this discussion last time we were in court and I said
she’s entitled to the same form of membership that her husband has at the
country club he belonged to. Her former husband. You [don’t] remember
my saying that?
‘‘[The Defendant’s Counsel]: I did. But I didn’t know at the time . . .
what the associate membership provided her with. And I did some digging
pursuant to the subpoena—
‘‘The Court: Well, you told me. It was essentially the same as what a social
membership would be, pool privileges, restaurant and so forth—
‘‘[The Defendant’s Counsel]: She still ha[s]—
‘‘The Court: —but excluding golf.
‘‘[The Defendant’s Counsel]: That’s not my understanding now is what
I’m saying.
‘‘The Court: Ah. What is it?
‘‘[The Defendant’s Counsel]: My understanding speaking to Innis Arden,
we can certainly bring them here if need be, is that the associate membership
still has golf associated but not full golf privileges—
‘‘[The Plaintiff’s Counsel]: That’s the difference.
‘‘[The Defendant’s Counsel]: —but enough. And we looked at—
‘‘The Court: And you’re saying that to a female—
‘‘[The Plaintiff’s Counsel]: Right.
‘‘The Court: —who’s had to put up with golf, having to get different times
because the men always get Saturday and Sunday mornings?
‘‘[The Defendant’s Counsel]: No. Well, there’s an equal number of men
who are associate members as well. This isn’t a gender thing, Your Honor.
‘‘The Court: Oh, it is so. Don’t be ridiculous, Mr. Kennedy.
***
‘‘The Court: You take your judges as you find them and unfortunately—
‘‘[The Defendant’s Counsel]: Well, I—Respectfully, Your Honor, I don’t
think that the associate in 2016 at Innis Arden is meant to be discriminatory
. . . . I looked up—
‘‘The Court: You’re 100 percent wrong, Mr. Kennedy.
‘‘[The Defendant’s Counsel]: Okay. I will—
‘‘The Court: This is [a] grandfathering issue. Country clubs are male domi-
nated, they are—set up their golf privileges for the purposes of allowing
the men to play and not be bothered with having to deal with those females
who are on the course at the same time.
‘‘[The Defendant’s Counsel]: If I could, Your Honor, well, I think the issue
here is what the parties agreed to. And if you look at—I printed out [the
plaintiff’s] golf history, 2015—
‘‘The Court: Don’t care what her golf history is, it’s what her future is
going to be.
‘‘[The Defendant’s Counsel]: I’ve given you my . . . argument.
‘‘The Court: I mean now this is—I told you last time what this was going
to be. She’s going to be entitled to the same level of membership that her
husband enjoys at his club. And if that is a full number one golf membership,
that’s what she’s going to get too.’’
After additional colloquy between the parties regarding the sales tax
related to the country club initiation fee, the court further stated: ‘‘Your
party agreed to it, Mr. Kennedy, and the motion is granted insofar as it
requests that the level of membership needs to be the same as that which
is enjoyed by [the defendant] at his club.’’
The court conducted another hearing on this topic on April 18, 2016, in
response to the defendant’s motion to reargue the court’s ruling that the
defendant pay the highest level of initiation fee at the Innis Arden Country
Club. At this hearing, once again, the court fully and firmly stated its view
of the role and status of women in country clubs. At this hearing, the
defendant expressly sought the opportunity to present evidence regarding
his intent when he signed the agreement. The transcript reflects the fol-
lowing:
‘‘[The Defendant’s Counsel]: Well, we did try to introduce evidence as
[to] . . . the number of rounds [the plaintiff] played of golf, in the last four
or five years. Which would fall within that asso—
‘‘The Court: I didn’t think she played any. She played a few?
‘‘[The Defendant’s Counsel]: I believe—I don’t have it in front of me,
again, but she entered into the GHIN system between one and five rounds
per year, the last couple years. And that level of play would fit into this
associate membership in Innis Arden. It does allow golf, just doesn’t allow
golf any day of the week, at any time you want it.
‘‘The Court: Right. It’s always difficult when you have a judge who has prej-
udices.
‘‘[The Defendant’s Counsel]: It’s a golf day today, by the way, Your Honor?
‘‘The Court: Well, my golf days are on Tuesdays. But in my very limited
experience with a country club, which I left because of the surcharge I was
having to pay in order to play on the mornings on the weekends, which
really frosted me, if I may say so. Because there are some built-in prejudices
with country clubs, and their historical makeup, and the way they treat golf.
And so, you sort of deal with some of those problems, when you have a
judge that feels rather strongly about the access that males and females
should have to the golf course.
‘‘I don’t think that it’s going to be productive to take more evidence from
what I already heard, [be]cause you made the same statement to [me] before.
I mean, I already was aware that there was a claim that [the plaintiff] had
had very limited golfing, in the recent years. In fact, I thought it was virtually,
nothing. But I guess, maybe from a golfer’s point of view, what you just
said is virtually nothing, too. But what I heard was . . . [that] even if she
hadn’t been doing it, she was going to take it, or wanted the option of taking
it up.
‘‘So, it was not from any lack of factual evidence. I mean, if you feel to
make a further record that you want [the defendant] to testify as to what
you just said, I guess you could do so. . . . I had that information, and
maybe it wasn’t taken from formal testimony. Maybe it was from argument.
I presumed it to be correct when I interpreted the judgment.
‘‘[The Defendant’s Counsel]: Okay.
‘‘The Court: I don’t think it was because I had a misapprehension of facts.
I think it was because I took what facts were presented and applied my
prejudices, and every judge has—has life history, and life experience that
comes out, perhaps, in the way that we rule on certain things. And you
happened to have hit a nerve on this one.
‘‘[The Defendant’s Counsel]: Understood. I do have one other motion,
Your Honor. I take it that’s denied?
‘‘The Court: Well, I’m not going to allow further evidence. So, I guess I
should just—the easiest way to deal with it is to deny it, yeah.’’
11
We do not dispute the principles that ‘‘[e]ach judge brings to the bench
the experiences of life, both personal and professional. A lifetime of experi-
ence that has generated a number of general attitudes cannot be left in
chambers when a judge takes the bench. Thus, a judge’s average personal
experiences do not generally lead to reasonable questions about the judge’s
impartiality and subsequent disqualification.’’ (Footnotes omitted.) 46 Am.
Jur. 2d, supra, § 139, p. 265.
Nevertheless, a judge is also ‘‘a minister of justice’’ and ‘‘should be careful
to refrain from any statement or attitude which would tend to deny [a party]
a fair trial. . . . It is his [or her] responsibility to have the trial conducted
in a manner which approaches an atmosphere of perfect impartiality which
is so much to be desired in a judicial proceeding.’’ (Internal quotation marks
omitted.) In re Nathan B., 116 Conn. App. 521, 525, 977 A.2d 224 (2009);
accord Cameron v. Cameron, supra, 187 Conn. 168–69.
12
On review, we cannot parse the court’s bias to determine that it infected
only its order regarding the country club initiation fee. Nor do we know
from the record the portion of the counsel fees ordered that pertained to
the country club initiation fee dispute and the portion that may have related
to other pending motions. Additionally, because we resolve this matter on
the basis stated, we do not reach the question of whether the court properly
could have ordered the defendant to pay counsel fees to the plaintiff where
he was not held in contempt and where she had adequate funds to pay her
own counsel fees.