Dubinsky v. Reich , 187 Conn. App. 255 ( 2019 )

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DAVID DUBINSKY v. VERONICA REICH
(AC 40432)
Alvord, Bright and Beach, Js.
Syllabus
The plaintiff sought to recover damages from the defendant attorney, R,
and R’s law firm, for legal malpractice and intentional and negligent
infliction of emotional distress in connection with R’s service as the
statutory (§ 46b-54) court-appointed guardian ad litem for the plaintiff’s
minor child in a marital dissolution action involving the plaintiff and
his former wife. In his complaint, the plaintiff alleged, inter alia, that
during the dissolution proceedings, R wrongfully recommended to the
trial court supervised visitation between the plaintiff and his minor child
and recommended against the use of coparenting counseling, and that
he suffered emotional distress as a result of R’s actions. The trial court
granted the defendants’ motion to dismiss the complaint for lack of
subject matter jurisdiction and rendered judgment thereon, concluding
that the defendants were entitled to absolute immunity and that the
plaintiff lacked standing as to his legal malpractice claims. On the plain-
tiff’s appeal to this court, held that the trial court properly granted the
defendants’ motion to dismiss and determined that it lacked subject
matter jurisdiction: that court properly concluded that the defendants
were entitled to absolute immunity, as the plaintiff’s complaint was not
grounded on any conduct by R in which she acted outside the role of
a court-appointed guardian ad litem, and the conduct that formed the
basis of the plaintiff’s claims was R’s recommendation to the trial court
of supervised visitation between the plaintiff and his minor child, as
well as her recommendation against the use of coparenting counseling,
which were made while R was fulfilling her statutorily prescribed duties
as guardian ad litem to the plaintiff’s minor child, thereby entitling R
to absolute immunity; moreover, contrary to the plaintiff’s assertion,
granting absolute immunity to guardians ad litem is not contrary to
public policy, as there are sufficient procedural safeguards to protect
against improper conduct by a guardian ad litem, namely, a guardian
ad litem is subject to the trial court’s oversight and discretion and may
be removed by the court at any time, either sua sponte or upon motion
of a party, and a guardian ad litem, just as any other attorney, is subject
to discipline for violations of the Code of Professional Conduct.
Argued October 24, 2018—officially released January 15, 2019
Procedural History
Action to recover damages for, inter alia, legal mal-
practice, and for other relief, brought to the Superior
Court in the judicial district of Fairfield, where the
court, Radcliffe, J., granted the plaintiff’s motion to cite
in Bai, Pollack, Blueweiss & Mulcahey, P.C., as a party
defendant; thereafter, the court, Arnold, J., granted the
defendants’ motion to dismiss and rendered judgment
thereon, from which the plaintiff appealed to this
court. Affirmed.
Kenneth A. Votre, for the appellant (plaintiff).
Michael R. Keller, with whom were Eva M. Kolstad
and, on the brief, James L. Brawley, for the appel-
lees (defendants).
Opinion
PER CURIAM. The plaintiff, David Dubinsky, appeals
from the judgment of the trial court granting the motion
to dismiss filed by the defendants, Veronica Reich and
Bai, Pollack, Blueweiss & Mulcahey, P.C. On appeal,
the plaintiff claims that the court improperly concluded
that the defendants were entitled to absolute immunity.
We disagree and, accordingly, affirm the judgment of
the trial court.
The following facts and procedural history are rele-
vant to our resolution of the plaintiff’s claim. Reich is an
attorney with the law firm of Bai, Pollack, Blueweiss &
Mulcahey, P.C. In the prior marital dissolution action
between the plaintiff and his former wife; see Dubinsky
v. Dubinsky, Superior Court, judicial district of Fair-
field, Docket No. FA-XX-XXXXXXX-S; Reich served as a
court-appointed guardian ad litem for the plaintiff’s
minor child.
In his operative complaint,1 dated September 9, 2016,
the plaintiff alleged that, on June 23, 2012, shortly before
the dissolution proceedings commenced, he was
arrested and charged with risk of injury to a child in
violation of General Statutes § 53-21, assault in the third
degree in violation of General Statutes § 53a-61, and
disorderly conduct in violation of General Statutes
§ 53a-182. The plaintiff alleged that, as a result, criminal
protective orders were issued by the court, which pre-
vented him from seeing his minor child and required
him to stay away from his marital home. The plaintiff
alleged that, on August 30, 2012, the criminal protective
orders were dismissed. The plaintiff further alleged that,
on January 28, 2013, the Department of Children and
Families concluded that the charges against him were
not substantiated and that there was no basis for a
finding of abuse or neglect of his minor child.
The plaintiff alleged claims of legal malpractice,
intentional infliction of emotional distress, and negli-
gent infliction of emotional distress against the defen-
dants. The plaintiff alleged that Reich ‘‘continued to
hold [the criminal charges and protective orders]
against the [p]laintiff, despite clear resolution in his
favor.’’ The plaintiff alleged that, in doing so, Reich
‘‘vindictively, intentionally and . . . recklessly’’ limited
the plaintiff’s access to his minor child, which was con-
trary to the best interests of the child. Specifically, the
plaintiff alleged that Reich wrongfully recommended
to the court supervised visitation between the plaintiff
and his minor child and recommended against the use
of coparenting counseling.2 The plaintiff claimed that
Reich’s actions ‘‘caused [him] to suffer severe emotional
distress and anxiety in being separated from his minor
son and stepdaughter, the humiliation of supervised
visitation with his minor son, the emotional distress of
not being able to return to [his] marital home, and the
loss of reputation in the community.’’
On November 4, 2016, the defendants filed a motion
to dismiss the plaintiff’s complaint for lack of subject
matter jurisdiction on the grounds that they were enti-
tled to absolute immunity and that the plaintiff lacked
standing to assert claims of legal malpractice. On Janu-
ary 12, 2017, the plaintiff filed a memorandum of law
in opposition to the defendants’ motion to dismiss in
which he contended that the defendants were not enti-
tled to absolute immunity and that, even if they were,
they still would be liable ‘‘for the intentional actions
undertaken by [Reich] that were outside the scope of
her duty as a [guardian ad litem].’’ The plaintiff also
asserted that he had standing because he had a relation-
ship with the defendants as a result of a retainer
agreement.3 On January 17, 2017, the court held a hear-
ing on the motion. The court issued its memorandum
of decision on April 27, 2017, granting the defendants’
motion to dismiss. The court ruled that the defendants
were entitled to absolute immunity and that the plaintiff
lacked standing with respect to his claims of legal mal-
practice.4 This appeal followed.
The standard of review for a court’s decision on a
motion to dismiss is well settled. ‘‘A motion to dismiss
tests, inter alia, whether, on the face of the record, the
court is without jurisdiction. . . . [O]ur review of the
court’s ultimate legal conclusion and resulting [determi-
nation] of the motion to dismiss will be de novo. . . .
When a . . . court decides a jurisdictional question
raised by a pretrial motion to dismiss, it must consider
the allegations of the complaint in their most favorable
light. . . . In this regard, a court must take the facts
to be those alleged in the complaint, including those
facts necessarily implied from the allegations, constru-
ing them in a manner most favorable to the pleader.
. . . In undertaking this review, we are mindful of the
well established notion that, in determining whether a
court has subject matter jurisdiction, every presump-
tion favoring jurisdiction should be indulged.’’ (Internal
quotation marks omitted.) Villages, LLC v. Longhi, 166
Conn. App. 685, 698, 142 A.3d 1162, cert. denied, 323
Conn. 915, 149 A.3d 498 (2016). ‘‘[A]bsolute immunity
protects a party from suit and implicates the trial court’s
subject matter jurisdiction . . . .’’ Bruno v. Travelers
Cos., 172 Conn. App. 717, 729, 161 A.3d 630 (2017).
On appeal, the plaintiff claims that the defendants
were not entitled to absolute immunity.5 Specifically,
he argues that absolute immunity does not apply when
a guardian ad litem performs acts outside of the scope
of her jurisdiction and that ‘‘the jurisdiction of a [guard-
ian ad litem] in a marital dissolution [action] is limited
to taking action in the best interests of the minor child.’’
The plaintiff argues that Reich ‘‘went well beyond the
best interests of the minor child and fell outside her
jurisdiction as [guardian ad litem].’’ We disagree.
In Carrubba v. Moskowitz, 274 Conn. 533, 537, 877
A.2d 773 (2005), our Supreme Court recognized that
attorneys appointed by the court pursuant to General
Statutes § 46b-54 are entitled to absolute, quasi-judicial
immunity for actions taken during, or activities neces-
sary to, the performance of functions that are integral
to the judicial process. Reich, as a guardian ad litem,
was an attorney appointed by the court pursuant to
§ 46b-54.6 Therefore, under Carrubba, Reich is entitled
to absolute immunity for any actions taken within her
role as guardian ad litem.7
The conduct that forms the basis of the plaintiff’s
underlying claims is Reich’s recommendation to the
court of supervised visitation between the plaintiff and
his minor child, as well as her recommendation against
the use of coparenting counseling. Reich made these
recommendations to the court while fulfilling her statu-
torily prescribed duties as guardian ad litem to the
plaintiff’s minor child.8 The plaintiff has not pointed to
any actions taken by Reich outside of her role as guard-
ian ad litem.9 Therefore, Reich is entitled to absolute
immunity.
The plaintiff further argues that ‘‘[p]ublic policy
requires that the trial court recognize that there is a
limitation to the actions of a [guardian ad litem]’’ and
that ‘‘[t]he grant of immunity allows unchecked abuses
of power by a [guardian ad litem].’’ We disagree. Grant-
ing absolute immunity to guardians ad litem is not con-
trary to public policy.10 There are sufficient procedural
safeguards to protect against improper conduct by a
guardian ad litem. Because a guardian ad litem is
appointed by the court, the guardian ad litem is subject
to the court’s oversight and discretion and may be
removed by the court at any time, either sua sponte or
upon motion of a party. See Carrubba v. Moskowitz,
supra, 274 Conn. 543; see, e.g., Connecticut Judicial
Branch, Code of Conduct for Counsel for the Minor
Child and Guardian Ad Litem, available at https://
www.jud.ct.gov/family/GAL_code.pdf. (last visited Jan-
uary 9, 2019). Additionally, the guardian ad litem, just
as any other attorney, is subject to discipline for viola-
tions of the Code of Professional Conduct. See Car-
rubba v. Moskowitz, supra, 543. Therefore, because the
complaint was not grounded on any conduct by Reich
in which she acted outside the role of a court-appointed
guardian ad litem, the defendants are entitled to abso-
lute immunity and the trial court lacked subject mat-
ter jurisdiction.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff filed his original complaint on April 20, 2016, in which he
named Reich as the sole defendant. The plaintiff later filed a motion to cite
in Bai, Pollack, Blueweiss & Mulcahey, P.C., as an additional defendant,
which the court granted on August 29, 2016. On September 26, 2016, the
plaintiff filed his amended complaint, which serves as the operative com-
plaint, in which he alleged additional claims against Bai, Pollack, Blueweiss &
Mulcahey, P.C., in its capacity as Reich’s employer.
2
We note that, although Reich made these recommendations, it was indis-
putably the role of the court to make the final determinations as to custody,
visitation, and parenting issues.
3
‘‘The court may order either party to pay the fees for [a] guardian ad
litem pursuant to General Statutes § 46b-62, and how such expenses will
be paid is within the court’s discretion.’’ (Footnote omitted.) Ruggiero v.
Ruggiero, 76 Conn. App. 338, 347–48, 819 A.2d 864 (2003). In its memorandum
of decision, the trial court found that ‘‘[t]here was no retainer agreement,
as the court ordered the plaintiff to pay fees incurred by Reich for the
execution of her duties in her role as the guardian ad litem for the minor
child.’’
4
On appeal, the plaintiff does not challenge the trial court’s finding that
he lacked standing to bring the legal malpractice claims. Therefore, this
appeal relates solely to the issue of whether the defendants were entitled
to absolute immunity with respect to the plaintiff’s claims of intentional
infliction of emotional distress and negligent infliction of emotional distress.
5
In his reply brief, the plaintiff claims, for the first time, that ‘‘[i]t was error
for the court to dismiss the [plaintiff’s] cause of action on the sufficiency
of the pleadings rather than treating the motion to dismiss as a motion to
strike.’’ We decline to review this claim. See Medeiros v. Medeiros, 175
Conn. App. 174, 190 n.12, 167 A.3d 967 (2017) (‘‘[i]t is well established . . .
that [c]laims . . . are unreviewable when raised for the first time in a reply
brief’’ [internal quotation marks omitted]).
6
General Statutes § 46b-54 (a) provides: ‘‘The court may appoint counsel
or a guardian ad litem for any minor child or children of either or both
parties at any time after the return day of a complaint under section 46b-
45, if the court deems it to be in the best interests of the child or children.
The court may appoint counsel or a guardian ad litem on its own motion,
or at the request of either of the parties or of the legal guardian of any child
or at the request of any child who is of sufficient age and capable of making
an intelligent request.’’
The plaintiff argues that Carrubba is distinguishable from the present
case because Carrubba involved an attorney for the minor child rather than
a guardian ad litem. We find this argument unpersuasive. In Carrubba, our
Supreme Court granted attorneys for the minor child the same level of
immunity as guardians ad litem. The court stated: ‘‘[F]or the purposes of
an immunity analysis, the court-appointed attorney for the minor child most
closely resembles a guardian ad litem,’’ and ‘‘we see no reason to accord
appointed attorneys for minor children a lesser level of immunity than that
traditionally accorded to guardians ad litem, at least in the performance
of those functions that are integral to the judicial process.’’ Carrubba v.
Moskowitz, supra, 274 Conn. 546–47. Further, the court acknowledged that
‘‘[c]ourts in other jurisdictions have almost unanimously accorded guardians
ad litem absolute immunity for their actions that are integral to the judicial
process. . . . Courts have reasoned that the duty of a guardian ad litem to
secure the best interests of the minor children places the guardian squarely
within the judicial process to accomplish that goal . . . and, therefore, that
a grant of absolute immunity is both appropriate and necessary in order to
ensure that the guardian will be able to function without the worry of
possible later harassment and intimidation from dissatisfied parents. . . .
These same reasons support the extension of the same scope of immunity
to attorneys appointed pursuant to § 46b-54.’’ (Citations omitted; internal
quotation marks omitted.) Id., 547–48. Thus, in granting attorneys for the
minor child absolute immunity, the court recognized that guardians ad litem
had traditionally possessed such immunity.
7
Because the plaintiff did not allege any claims against Bai, Pollack,
Blueweiss & Mulcahey, P.C., outside of its role as Reich’s employer, it is
similarly entitled to absolute immunity for any actions taken by Reich within
her role as guardian ad litem.
8
General Statutes § 46b-54 (e) provides in relevant part: ‘‘[A] guardian ad
litem for the minor child or children shall be heard on all matters pertaining
to the interests of any child, including the custody, care, support, education
and visitation of the child, so long as the court deems such representation
to be in the best interests of the child. . . .’’
General Statutes § 46b-54 (f) provides in relevant part: ‘‘[A] guardian ad
litem for the minor child shall consider the best interests of the child, and
in doing so shall consider, but not be limited to, one or more of the following
factors . . . the past and current interaction and relationship of the child
with each parent, the child’s siblings and any other person who may signifi-
cantly affect the best interests of the child . . . the willingness and ability
of each parent to facilitate and encourage such continuing parent-child
relationship between the child and the other parent as is appropriate, includ-
ing compliance with any court orders . . . the effect on the child of the
actions of an abuser, if any domestic violence has occurred between the
parents or between a parent and another individual or the child . . . [and]
whether the child or a sibling of the child has been abused or neglected
. . . .’’
9
To the extent that the plaintiff argues that Reich’s conduct fell outside
the scope of her role as guardian ad litem because it was intentional, the
plaintiff’s claim fails. See Carrubba v. Moskowitz, supra, 274 Conn. 548–49
(‘‘the fact that some of the allegations of the complaint claim that she did
so in an intentional, rather than a merely negligent manner, does not defeat
absolute immunity’’).
In addition, we reject the plaintiff’s argument that Reich should not be
afforded absolute immunity because, in his view, she did not act in the best
interests of the child. This is precisely the type of claim that the court in
Carrubba sought to protect against in affording absolute immunity to attor-
neys appointed pursuant to § 46b-54. See id., 543 (‘‘the threat of litigation
from a disgruntled parent, unhappy with the position advocated by the
attorney for the minor child in a custody action, would be likely not only
to interfere with the independent decision making required by this position,
but may very well deter qualified individuals from accepting the appointment
in the first instance’’).
10
The court in Carrubba similarly analyzed public policy considerations.
First, the court examined the policy reasons underlying judicial immunity.
Carrubba v. Moskowitz, supra, 274 Conn. 539–40. In addition, the court
considered whether procedural safeguards existed to protect against
improper conduct by an attorney for the minor child. Id., 543. Although
not specifically framed as a public policy analysis, the court’s discussion
addresses the same concerns that the plaintiff raises regarding guardians
ad litem.