Zilkha v. Zilkha ( 2016 )

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KAREN ZILKHA v. DAVID ZILKHA
(AC 38006)
(AC 38007)
Lavine, Beach and Bishop, Js.
Argued May 11—officially released August 9, 2016
(Appeals from Superior Court, judicial district of
Stamford-Norwalk, Abery-Wetstone, J. [dissolution
judgment]; judicial district of Waterbury, Hon. Lloyd
Cutsumpas, judge trial referee [motion to modify;
motion to open].)
Edward N. Lerner, for the appellant (defendant).
Opinion
BISHOP, J. In these two appeals, the defendant, David
Zilkha, appeals from the judgment of the trial court
denying his motion to modify the court’s financial
orders and his motion to open, both filed several years
following the court’s judgment dissolving his marriage
to the plaintiff, Karen Zilkha. Because the two appeals
arise from the same underlying case, we assess both
of them in this combined opinion. We affirm the judg-
ments.1 In AC 38006, the defendant appeals from the
judgment denying his motion to modify the court’s
financial orders, claiming that the court incorrectly
determined that he had not proven that his financial
circumstances had substantially changed and that the
court was biased against him when it denied his motion.
In AC 38007, the defendant appeals from the court’s
judgment denying his motion to open the dissolution
judgment, premised on his claim that he stipulated to
the terms of the marital dissolution judgment only
under duress.
The following facts and procedural history pertain
to both appeals. The parties were married on June 7,
1998. They had two children, both born on February
14, 2001. On August 1, 2003, the plaintiff brought an
action for the dissolution of the parties’ marriage, which
resulted in a stipulated marital dissolution judgment
rendered by the court, Abery-Wetstone, J., on May 31,
2005. In this combined opinion, we address the two
appeals separately, setting forth relevant facts and pro-
cedural history as appropriate.
I
AC 38006
In AC 38006, the defendant claims that the court
abused its discretion when it denied his motion to mod-
ify the financial orders, entered pursuant to the dissolu-
tion judgment. In this regard, he makes two claims: that
the court was biased against him and the case, and that
the court incorrectly found that his financial circum-
stances had not adequately changed to warrant a modifi-
cation of the orders. We are not persuaded.
The following facts and procedural history are rele-
vant to the resolution of this appeal. On the date of the
marital dissolution, the court entered financial orders
premised on the finding and the parties’ stipulation that
the defendant had a $250,000 per year earning capacity.
On August 26, 2011, the defendant filed a motion to
modify the financial orders. In support of this motion,
the defendant argued that his financial circumstances
had substantially changed from the date of the mari-
tal dissolution.
The court, Hon. Lloyd Cutsumpas, judge trial referee,
held a hearing on the defendant’s motion to modify
from April 27 to April 30, 2015. On April 28, 2015, after
hearing substantial evidence, Judge Cutsumpas made
the following comment: ‘‘These parties should have
resolved this matter amicably, that’s what they should
have done. They should realize, well, what’s the maxi-
mum exposure that I have here? And I think—I men-
tioned that [it was] about $126,000 . . . no, it’s
$126,000. They’re arguing, spending countless amounts
of money getting aggravated, irritated, throwing stones
at one another. And if you think I’m impressed with
[the plaintiff], you’re mistaken, counsel, I’m not impres-
sed with her either. I’m not impressed with either one
of these people. One of the pleadings said, [the defen-
dant’s] pleading said, more than a million dollars was
spent. More than a million dollars on legal fees and
. . . costs and therapy, a million dollars? It’s a lot of
money. These children could have been made a lot more
secure than they are now had half of that money been
used for their welfare. I’ve gone too far, counsel, but
you may continue if you wish. . . . I would like to get
to the next motion if possible.’’
The defendant did not object to Judge Cutsumpas’
remark and did not ask Judge Cutsumpas to recuse
himself due to any alleged bias. Instead, the defendant
proceeded with his case and the court continued to
hear testimony from the defendant and from Michael
Ramer, an expert in earning capacity, who opined that
the defendant’s earning capacity had decreased from
$250,000 per year when the dissolution orders were
entered to approximately $20,000 per year at the time
of his motion to modify. In Ramer’s opinion, the decline
in the defendant’s earning capacity was a result of the
deterioration of the defendant’s professional reputa-
tion. Specifically, Ramer identified the presence of
newspaper articles stating that the defendant had wil-
fully violated financial and federal security laws, was
a loose cannon employee, had been associated with
insider trading, had lied to authorities, and was respon-
sible for a serious incident of family violence perpe-
trated against his wife. These factors led Ramer to
conclude that the defendant could not be hired in the
financial services industry and would never be hired
by any corporation that conducts background checks
as part of its vetting process. Notwithstanding this testi-
mony, the court denied the defendant’s motion to mod-
ify. In announcing its decision from the bench, the court
stated that it had ‘‘listened to the testimony of the par-
ties and the expert witness . . . review[ed] numerous
pieces of documentary evidence [and] . . . considered
the relevant Practice Book [sections] and case law that
concerns a motion to modify financial orders and
[found] that there [was] insufficient evidence to consti-
tute a substantial change in circumstances . . . .’’
On May 1, 2015, three days following the court’s com-
ment about the parties and one day following its denial
of the defendant’s motion to modify, the defendant filed
a motion to disqualify Judge Cutsumpas. The defen-
dant’s affidavit attached to that motion alleged that
Judge Cutsumpas was biased against him on the basis
of his comment on April 28, 2015, which the defendant
perceived to be derogatory commentary on his conduct
as a party in the case. Likely because the motion to
disqualify was filed after the court had issued its ruling,
the court did not respond to the motion. Nonetheless,
the defendant raised his claim of judicial bias in this
appeal as well as his challenge to the court’s denial of
his motion to modify.
We first address the defendant’s claim of judicial bias.
On appeal, the defendant attempts to tie the court’s
ruling on his motion to modify to his perception of
judicial bias. In essence, the defendant claims that the
court’s denial of his motion to modify was invalid
because Judge Cutsumpas should have recused himself
from hearing the motion. We do not reach the merits
of this claim because ‘‘[i]t is well settled that courts
will not review a claim of judicial bias on appeal unless
that claim was properly presented to the trial court
through a motion for disqualification or a motion for
mistrial. . . . Absent plain error, a claim of judicial bias
cannot be reviewed on appeal unless preserved in the
trial court.’’ (Citations omitted; internal quotation
marks omitted.) State v. McDuffie, 51 Conn. App. 210,
216, 721 A.2d 142 (1998), cert. denied, 247 Conn. 958,
723 A.2d 814 (1999).
In the case at hand, the defendant did not raise the
issue of judicial bias during the trial proceeding when
Judge Cutsumpas made the allegedly biased remarks,
which was the defendant’s obligation to do. Tate v.
Safeco Ins. Co. of Illinois, 157 Conn. App. 432, 451, 116
A.3d 386 (2015); see Practice Book § 1-23. Instead, the
defendant waited until after the court had denied his
motions before filing his motion to disqualify. By not
timely raising his claim of bias, which he could have
done orally when the allegedly improper comments
were made, he denied the court the opportunity to
timely consider and rule on his perception of bias and
request for recusal. See State v. Weber, 6 Conn. App.
407, 413, 505 A.2d 1266, cert. denied, 199 Conn. 810,
508 A.2d 771 (1986).2 He, therefore, has not timely pre-
served his claim of bias and we do not consider his
claim here. See Burns v. Quinnipiac University, 120
Conn. App. 311, 316, 991 A.2d 666, cert. denied, 297
Conn. 906, 995 A.2d 634 (2010).
We next review the defendant’s claim that the court’s
denial of his motion to modify was an abuse of discre-
tion. ‘‘Our review of a trial court’s granting or denial
of a motion for modification of [financial orders] is
governed by the abuse of discretion standard. . . . In
determining whether a trial court has abused its broad
discretion in domestic relations matters, we allow every
reasonable presumption in favor of the correctness of
its action.’’ (Citation omitted; internal quotation marks
omitted.) Light v. Grimes, 156 Conn. App. 53, 64, 111
A.3d 551 (2015); see Pace v. Pace, 134 Conn. App. 212,
217–18, 39 A.3d 756 (2012). Additionally, ‘‘[a]s a general
rule, appellate courts do not make credibility determi-
nations. [I]t is within the province of the trial court,
when sitting as the fact finder, to weigh the evidence
presented and determine the credibility and effect to
be given the evidence. . . . Credibility must be
assessed . . . not by reading the cold printed record,
but by observing firsthand the witness’ conduct,
demeanor and attitude. . . . An appellate court must
defer to the trier of fact’s assessment of credibility
because [i]t is the [fact finder] . . . [who has] an oppor-
tunity to observe the demeanor of the witnesses and
the parties; thus [the fact finder] is best able to judge
the credibility of the witnesses and to draw necessary
inferences from them.’’ (Internal quotation marks omit-
ted.) Nuzzi v. Nuzzi, 164 Conn. App. 751, 733,
A.3d (2016)
‘‘[General Statutes §] 46b-86 governs the modification
or termination of an alimony or support order after the
date of a dissolution judgment. When, as in this case,
the disputed issue is alimony [or child support] the
applicable provision of the statute is § 46b-86 (a), which
provides that a final order for alimony may be modified
by the trial court upon a showing of a substantial change
in the circumstances of either party. . . . Under that
statutory provision, the party seeking the modification
bears the burden of demonstrating that such a change
has occurred. . . . To obtain a modification, the mov-
ing party must demonstrate that circumstances have
changed since the last court order such that it would
be unjust or inequitable to hold either party to it.
Because the establishment of changed circumstances
is a condition precedent to a party’s relief, it is pertinent
for the trial court to inquire as to what, if any, new
circumstance warrants a modification of the existing
order.’’ (Citation omitted; footnote omitted; internal
quotation marks omitted.) Olson v. Mohammadu, 310
Conn. 665, 671–72, 81 A.3d 215 (2013). In addition, to
qualify as a substantial change in circumstances, a
change or ‘‘alleged inability to pay must be excusable
and not brought about by the defendant’s own fault.’’
(Internal quotation marks omitted.) Id., 674. Thus, a
mere ‘‘ ‘[i]nability to pay’ does not automatically entitle
a party to a decrease of [a support] order.’’ Sanchione
v. Sanchione, 173 Conn. 397, 407, 378 A.2d 522 (1977).
The moving party must show that the alleged change
in circumstances is ‘‘excusable and not brought about
by the defendant’s own fault,’’ such as through the mov-
ing party’s ‘‘own extravagance, neglect, misconduct or
other unacceptable reason . . . .’’ Id.
With these principles in mind, we turn to the defen-
dant’s claim that the court erred in denying his motion
to modify on the ground that he had failed to show a
substantial change in circumstances. To substantiate
this claim, the defendant asserts that his earning capac-
ity had decreased since the time that the dissolution
orders were entered, rendering a substantial change
in his financial circumstances that made the original
financial orders unjust. This assertion is premised on
Ramer’s opinion that, after the marital dissolution, the
defendant’s reputation had become so abysmal that he
is nearly unemployable, reducing his earning capacity
from $250,000 a year, when the financial orders were
entered, to $20,000 a year, presently. In assessing this
claim, the court did not credit this testimony. Rather,
the court found that ‘‘there [was] insufficient evidence
to constitute a substantial change in circumstances
. . . .’’ Under these circumstances, we conclude that
the court did not abuse its discretion in denying the
defendant’s motion to modify. In concluding that the
defendant had presented insufficient evidence of a sub-
stantial change in circumstances, the court was free to
credit or reject all or part of the testimony given by the
defendant and Ramer. On review, we do not reexamine
the court’s credibility assessments. Nuzzi v. Nuzzi,
supra, 164 Conn. App. 773. Furthermore, it appears from
the record that the defendant’s alleged decrease in earn-
ing capacity, if any, was brought about by his own
‘‘fault . . . neglect, misconduct or other unacceptable
reason.’’ Sanchione v. Sanchione, supra, 173 Conn. 407.
Specifically, Ramer’s expert opinion was predicated on
his understanding of the effect of the defendant’s multi-
ple wilful violations of federal security laws, as well as
his acts of domestic violence. Under these circum-
stances, the court’s conclusion that the defendant had
failed to meet his burden to show a substantial change
in circumstances that is excusable and not brought
about by his own fault was not an abuse of discretion.
II
AC 38007
In AC 38007, the defendant challenges the court’s
denial of his motion to open the dissolution of marriage
judgment on two grounds: first, the defendant claims
that Judge Cutsumpas improperly failed to recuse him-
self, and second, the defendant claims that the court
abused its discretion by denying his motion to open.
He asserts that the evidence adduced at the hearing on
his motion to open demonstrated that he was acting
under duress when he consented to the terms of the
separation agreement underlying the dissolution judg-
ment. With respect to his claim of bias, the defendant
argues that the court, during its oral denial of his motion
to open, made certain remarks that indicated that it
had come to a decision to deny the motion prior to the
evidentiary hearing. In support of his claim of duress,
the defendant argues that the plaintiff procured his
assent to the separation agreement by threatening him
with criminal prosecution and with the attendant immi-
gration consequences. We are not persuaded.
The following additional facts and procedural history
are relevant to the resolution of this appeal. The parties’
marriage was marred by numerous confrontations and
disagreements, one of which is relevant to this appeal.
In 2004, a verbal argument between the parties esca-
lated to the point that the defendant struck the plaintiff
in the face several times. Police responding to this inci-
dent observed the plaintiff to have a black eye. On
medical examination, she was determined to have suf-
fered a fractured eye orbit and bridge of her nose. Ini-
tially, the defendant denied hitting the plaintiff and
blamed her injuries on their two children, who were
three and one-half years old at the time. He later
acknowledged that he had lied in this regard, justifying
his lack of truthfulness on the basis that he was not a
United States citizen and feared deportation if con-
victed of a crime. Indeed, as a result of this incident of
domestic violence the defendant was criminally
charged.
As noted, on May 31, 2005, Judge Abery-Wetstone
rendered a judgment of dissolution of the parties’ mar-
riage. The judgment of dissolution incorporated by ref-
erence the parties’ separation agreement, which
included a provision regarding the criminal charges
then pending against the defendant. Pursuant to the
provision, the plaintiff would recommend to the court
that the defendant be allowed entry into a pretrial diver-
sionary program, called the family violence program,
in lieu of a formal criminal disposition. The agreement
also included a provision that the plaintiff would not
seek the defendant’s incarceration or deportation. It is
evident that the parties believed that if the plaintiff
supported the defendant’s participation in the family
violence program, the court would accept him into the
program and he would avoid incarceration and the
adverse immigration consequences associated with a
criminal conviction of a violent crime. Although the
plaintiff could recommend that the defendant be
allowed to participate in the program, the parties both
acknowledged at the marital dissolution hearing that
they were aware that the ultimate decision as to
whether the defendant would be allowed to participate
in the family violence program would be subject to the
approval of the prosecutor and the court in that separate
criminal proceeding. Following a lengthy canvass dur-
ing which both parties unequivocally expressed their
voluntary assent to the terms of the separation
agreement, the court approved the separation
agreement and rendered a judgment dissolving their
marriage.
Nearly eight years later, on February 15, 2013, the
defendant filed a motion to open and set aside the
dissolution judgment. The defendant’s motion alleged
that, during the negotiations regarding the separation
agreement, the plaintiff threatened to oppose his entry
into the family violence program if he did not agree to
her financial demands. In other words, the defendant
argued that the separation agreement was void because
his assent to its terms was procured by duress. On April
30, 2015, Judge Cutsumpas, after hearing testimony
from the defendant and other witnesses, denied his
motion to open. In its oral denial of the defendant’s
motion, the court stated: ‘‘I’m going to issue an order
regarding this motion, because I’ve given this motion
a great deal of thought, I had my own research that I
did, I had our own clerks to do research for me, I’m
very familiar with the specific issues involved in this
case and I’m prepared to rule. The court listened to the
parties and their witnesses and heard their argument,
and I’ve reviewed all of the relevant exhibits to this
motion and I considered the Connecticut Practice Book
rules, the pertinent statutory case law and I find that
there was insufficient clear and convincing evidence to
reopen this ten year old dissolution of marriage judg-
ment on the ground of duress. I find that there was a
lack of evidence to open it on any other basis and, even
in the fair preponderance of the evidence standard, the
court would be hard pressed to reopen this judgment.
It is well [settled] in this state and in every other state in
the union that stipulations and agreements are judicially
favored and will not be lightly set aside. That language
is quoted from Connecticut case after case after case,
as well as cases from other jurisdictions as well. And
to reopen a ten year [old] case that has—that has had
this malodorous history here, thousands and thousands
of pages, motions, would be highly inappropriate. The
parties need to get over their anger at this failed relation-
ship and move—and turn the page on this chapter in
their lives and move on and try to parent their children
in a rational manner. . . . And now to reopen the judg-
ment after ten years, try to piece together what the
financial situations were at that time would be highly
inappropriate. Therefore, this court denies the defen-
dant’s motion to reopen the judgment . . . .’’
On May 1, 2015, the day after the court’s denial of
the defendant’s motion to open, the defendant filed a
motion to disqualify Judge Cutsumpas. The defendant’s
affidavit attached to the motion to disqualify alleged
that Judge Cutsumpas was predetermined to deny the
motion on the basis of his comment that ‘‘to reopen
the judgment after ten years, try to piece together what
the financial situations were at that time would be
highly inappropriate.’’ Although the defendant’s motion
to disqualify was not ruled on, the defendant raised his
claim of judicial bias in this appeal from the denial of
his motion to open. On appeal, the defendant challenges
the denial of his motion to open on the grounds that
the court was biased against the case and that the
court’s denial of his motion was an abuse of discretion.
As we noted in our discussion of AC 38006, the defen-
dant’s claim of judicial bias was not timely raised before
the court and was not accompanied with a motion to
reconsider when it was filed after the court had ruled
on the defendant’s motion. Therefore, for the reasons
stated in our discussion of the defendant’s indistinguish-
able claim in AC 38006, we reject consideration of the
defendant’s claim of judicial bias.3
We next turn to the defendant’s claim that the court’s
denial of his motion to open was an abuse of discretion.
‘‘Our review of a court’s denial of a motion to open
. . . is well settled. We do not undertake a plenary
review of the merits of a decision of the trial court to
grant or to deny a motion to open a judgment. . . . In
an appeal from a denial of a motion to open a judgment,
our review is limited to the issue of whether the trial
court has acted unreasonably and in clear abuse of its
discretion. . . . In determining whether the trial court
abused its discretion, this court must make every rea-
sonable presumption in favor of its action. . . . The
manner in which [this] discretion is exercised will not
be disturbed so long as the court could reasonably
conclude as it did.’’ (Internal quotation marks omitted.)
Weinstein v. Weinstein, 275 Conn. 671, 685, 882 A.2d
53 (2005). When exercising its discretion on a motion
to open, the court may consider ‘‘the totality of the
circumstances’’ under which the motion to open is filed;
Percy v. Lamar Central Outdoor, LLC, 147 Conn. App.
815, 819, 83 A.3d 1212, cert. denied, 311 Conn. 932, 87
A.3d 58 (2014); including the passage of time since the
entry of the judgment and the failure of the moving
party to timely seek to open the judgment. See Turner
v. Commissioner of Correction, 163 Conn. App. 556,
564–65, 134 A.3d 1253 (2016); Jeudy v. Jeudy, 106 Conn.
App. 372, 378, 942 A.2d 476 (2008).
‘‘For a party to demonstrate duress, it must prove
[1] a wrongful act or threat [2] that left the victim no
reasonable alternative, and [3] to which the victim in
fact acceded, and that [4] the resulting transaction was
unfair to the victim. . . . The wrongful conduct at issue
could take virtually any form, but must induce a fearful
state of mind in the other party, which makes it impossi-
ble for [the party] to exercise his own free will.’’ (Cita-
tion omitted; internal quotation marks omitted.) Noble
v. White, 66 Conn. App. 54, 59, 783 A.2d 1145 (2001).
‘‘A motion to open grounded on duress necessarily
requires a court to make factual determinations with
respect to the elements of duress and, therefore, any
allegation of duress must be accompanied by support-
ing evidence, either documentary or testimonial, on
which such factual determinations can rest. . . .
Those determinations as to the elements of duress are
findings of fact that we will not disturb on appeal unless
they are clearly erroneous.’’ (Citation omitted; internal
quotation marks omitted.) In re Travis R., 80 Conn.
App. 777, 782–83, 838 A.2d 1000, cert. denied, 268 Conn.
904, 845 A.2d 469 (2004). In making those factual deter-
minations, ‘‘[i]t is within the province of the trial court,
as the fact finder, to weigh the evidence presented and
determine the credibility and effect to be given the
evidence. . . . Where testimony is conflicting the trier
may choose to believe one version over the other . . .
as the probative force of the evidence is for the trier to
determine.’’ (Citation omitted; internal quotation marks
omitted.) Briggs v. McWeeny, 260 Conn. 296, 327, 796
A.2d 516 (2002).
In the present case, we are not persuaded that the
trial court’s denial of the defendant’s motion to open
was an abuse of discretion. In assessing the motion,
the court was entitled to view the defendant’s allegation
of duress in light of the procedural history of the case;
see Celanese Fiber v. Pic Yarns, Inc., 184 Conn. 461,
465–66, 440 A.2d 159 (1981); and did so, noting that ‘‘to
reopen the Judgment after 10 years, try to piece together
what the financial situations were at that time would
be highly inappropriate.’’ The trial court was aware,
from evidence adduced at the hearing, that despite the
defendant’s current allegation of duress, ten years ear-
lier, when judgment entered, the defendant had affirma-
tively represented to that court that his assent to the
agreement was completely voluntary. The trial court
was also aware, from the docket sheets made part of
its file, that the defendant had filed multitudinous post-
judgment motions; see footnote 2 of this opinion; and
had appeared in court on several occasions in conjunc-
tion with postjudgment motions. The record is barren
of any suggestion that, at any time, either when the
separation agreement was entered into or in any of the
subsequent court appearances, did the defendant—or
his lawyers—raise this claim of duress. Indeed, the
record reveals that on February 3 and 4, 2010, the defen-
dant appeared in court to oppose the plaintiff’s motion
to open the dissolution judgment on the ground that
he had committed fraud in negotiating the agreement.
See Zilkha v. Zilkha, 159 Conn. App. 167, 170–71, 123
A.3d 439 (2015). In sum, the record reflects that the
defendant had many opportunities in the nearly decade
long interval between the date of the marital dissolution
judgment and the filing of his motion to open to apprise
the court of his belief that the agreement was signed
under duress, but failed to do so until the filing of
the instant motion. Therefore, the court’s denial of the
defendant’s motion to open, made after the court con-
ducted an evidentiary hearing and considered the par-
ties’ lengthy history of postjudgment litigation, was not
an abuse of discretion.
The judgments are affirmed.
In this opinion the other judges concurred.
1
Although the defendant’s former spouse, the plaintiff, was a party to the
marital dissolution and defended against both motions under review, she
has not participated in these appeals.
2
We note that, even if the defendant had properly preserved his motion
to disqualify, keeping in mind that ‘‘opinions that judges may form as a
result of what they learn in earlier proceedings in the same case ‘rarely’
constitute the type of bias, or appearance of bias, that requires recusal’’;
State v. Rizzo, 303 Conn. 71, 121, 31 A.3d 1094 (2011), cert. denied, U.S.
, 133 S. Ct. 133, 184 L. Ed. 2d 64 (2012), overruled in part on other
grounds by State v. Santiago, 318 Conn. 1, 140, 122 A.3d 1 (2015); see also
id., 125–26; a favorable judgment on that motion would have made no
difference in the case. The defendant’s motion to disqualify was filed after
the court entered final judgments in the case and the defendant did not
accompany his motion to disqualify with a motion to reconsider. Under
these circumstances, had the defendant’s motion been granted, it would not
have affected the prior judgment. Additionally, we note that the trial court
docket sheet reveals that between the date of the marital dissolution and
the hearing on the defendant’s motions, the parties, combined, had filed in
excess of 290 postjudgment motions. In short, it is no surprise and, indeed,
very understandable, that this history of litigiousness and attendant waste
of resources could operate to frustrate the court.
3
We note too, as to the claim of bias and contrary to the defendant’s bald
assertion, it is evident from the record that the court listened attentively
to the defendant’s testimony and witnesses prior to determining that the
defendant had not met his burden of proving that he had entered into the
agreement under duress.