D'Amato v. Hart-D'Amato , 169 Conn. App. 669 ( 2016 )

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JOHN D’AMATO v. DIANNE HART-D’AMATO
(AC 36849)
Beach, Keller and Bear, Js.
Argued September 9—officially released December 13, 2016
(Appeal from Superior Court, judicial district of
Fairfield, Regional Family Trial Docket at Middletown,
Adelman, J.)
Dianne Hart, self-represented, the appellant
(defendant).
Patrice A. Cohan, with whom was Jeanmarie A. Ric-
cio, for the appellee (plaintiff).
Opinion
BEACH, J. The defendant, Dianne Hart-D’Amato,
appeals from the judgment of the trial court dissolving
her marriage to the plaintiff, John D’Amato, and enter-
ing related custody and financial orders. The defendant
claims that the trial court (1) violated her right to due
process when it denied certain motions without a hear-
ing, (2) erred in granting sole legal custody of the minor
children to the plaintiff, (3) issued inequitable financial
orders, and (4) erred in denying her motions for disqual-
ification of the trial judge. We disagree and affirm the
judgment of the trial court.
The following facts, as found by the trial court in a
comprehensive memorandum of decision, are relevant.
The parties were married in 1989. At the time of trial
in 2014, the plaintiff was fifty years old and working as
a letter carrier for the United States Postal Service. The
defendant was forty-nine years old and working as a
juvenile probation officer. The plaintiff’s work schedule
was inflexible. The defendant’s schedule was compara-
tively flexible and she historically had been the primary
parental figure in the children’s lives. The parties have
two children, the first born in 1998 and the second in
2002. At the time of trial, the defendant was residing
alone at the marital home in Fairfield and the plaintiff
was residing in a condominium in Monroe with the
two children.
Following a trial, the court issued a memorandum of
decision on March 17, 2014. A principal issue in the
trial was the defendant’s use of alcohol. The court did
not credit the defendant’s testimony that she did not
drink much, although she said that she did use alcohol
to cope with an emotionally abusive husband. The
court, rather, found that the defendant had abused alco-
hol for a long period of time, at least since 2006. John
Mager, the children’s guardian ad litem, testified that
the children had reported to him that the defendant
had driven while intoxicated with them in the car on
more than one occasion. On December 31, 2011, the
defendant became intoxicated and was hospitalized.
Mager testified that the hospital records indicated that
the defendant’s blood alcohol level was .448 when she
was admitted and that the defendant reported to intake
staff that she routinely drank large amounts of vodka
daily for the majority of her adult life. Michael Reitman,
who was licensed as a clinical social worker and an
alcohol and drug counselor, had treated the defendant
since January, 2012. The defendant refused any other
form of treatment and Reitman continually had urged
the defendant to reconsider her refusal. Since Decem-
ber 31, 2011, the defendant had been successful in main-
taining her sobriety, but continued to minimize her
difficulty with alcohol.
The defendant’s abuse of alcohol had a significant
impact on the children. The plaintiff influenced to some
extent the children’s attitudes toward the defendant,
but, in any event, the children’s alignment with their
father grew and they reported negative feelings toward
the defendant even during the time from January, 2012,
to October, 2012, when the defendant had primary care
of the children and the plaintiff did not interfere with
her activities with the children. After October, 2012,
the children and the plaintiff moved out of the marital
home in order to reduce the strife to which the children
were being exposed. Mager testified that the defen-
dant’s unwillingness to accept responsibility for her
actions without placing blame elsewhere prevented
healing between her and the children.
The children preferred to have very little or no con-
tact with the defendant. The court found that the best
interests of the children required orders granting sole
legal and physical custody to the plaintiff, that the
defendant maintain her sobriety, and that the children
maintain a relationship with both parents. The court so
ordered and further specified that on a three week
rotating basis the defendant was to have visitation with
the younger child for three hours the first week, the
older child for three hours the second week, and both
children for three hours the third week. The court
ordered that the children, the plaintiff and, at an appro-
priate time, the defendant, were to engage in counseling
with the ‘‘goal and expectation that the parental access
between the defendant and the minor children shall
increase over time.’’ The court also ordered that the
defendant refrain from alcoholic beverages and submit
to random alcohol testing; either a positive test or a
failure to take a test would result in cancellation of that
week’s visitation.
The court further ordered the defendant to pay $252
weekly in child support to the plaintiff and ordered
that the parties share unreimbursed medical, dental and
child care expenses. The plaintiff was to pay 53 percent
and the defendant 47 percent. The court ordered that
the parties’ deferred income was subject to equitable
distribution. The court did not order alimony. This
appeal followed.
I
The defendant first claims that her right to due pro-
cess was violated when the court denied without a
hearing her motion for a continuance, her ‘‘motion to
open and set aside judgment and for new trial,’’ her
motion to reargue/reconsideration, and her motion for
clarification.1 We disagree.
Prior to the start of trial, and almost two years after
the plaintiff initiated the action, the defendant filed a
motion for a continuance in which she argued that her
attorney failed to prepare adequately for trial because
she ‘‘can no longer pay him.’’ The court denied the
motion without elaboration. In the course of a hearing
on a postjudgment motion to disqualify the trial court,
the defendant mentioned the court’s previous denial of
her pretrial motion for a continuance. The court at that
time explained that ‘‘issues relating to the custody of
children are priority issues. This case has been pending
for a long time. The matter was scheduled in advance.
I don’t continue custody trials absent extraordinary cir-
cumstances like illness or death.’’
After the memorandum of decision was issued, the
defendant filed several motions. One was entitled
‘‘motion to open and set aside judgment and for new
trial.’’ In that motion she argued that a new trial was
warranted because her trial counsel was ‘‘ineffective’’
in that he failed to prepare adequately for trial and
engaged in ‘‘threatening behaviors.’’ She further claimed
that Mager, the guardian ad litem, ‘‘provided dishonest
testimony throughout the trial.’’ With respect to this
issue, the defendant argued that Mager falsely had testi-
fied that he had spoken with Reitman. The defendant
highlighted the court’s finding that ‘‘[Mager] testified
that in his discussion with Reitman, the therapist had
reported that he had recommended more intensive type
treatments and that he had recommended that [the
defendant] attend [Alcoholics Anonymous]. The defen-
dant refused any other form of treatment and Reitman
reported to [Mager] that he had continued to urge her
to reconsider that decision.’’ The defendant attached
to the motion an affidavit by Reitman averring that he
had neither spoken to nor met with Mager. She also
noted the court’s finding that ‘‘[i]t was only through the
efforts of [Mager] . . . that vital information from the
St. Vincent’s Hospital records were brought to the
court’s attention.’’ She argued that the hospital records
were not introduced into evidence and Mager ‘‘testified
to the contents of the record that were completely made
up and false. Another willful act of perjury . . . .’’ The
court denied the motion for clarification.
The defendant also filed a motion to reargue, which
claimed ‘‘ineffective counsel and fraudulent testimony’’
by Mager. This motion was denied.
The defendant filed a motion for clarification in which
she stated that the court denied her ‘‘motion to open
and set aside judgment and for new trial’’ without a
hearing, and asked the court to clarify the legal basis
upon which the court denied that motion. The court
also denied this motion.
The defendant argues that ‘‘[a]s a matter of law, the
trial court’s . . . failure to afford a hearing on the
defendant’s motion for a continuance, motion to re-
open judgment for a new trial based on perjury and
ineffective counsel, motion to reargue/reconsider, and
motion for clarification deprived the [defendant of her
due process right] to be heard.’’ Pursuant to Practice
Book § 11-18 (a), however, whether to hear oral argu-
ment on motions in civil matters is a matter within the
discretion of the court, except in limited circumstances,
not relevant here, in which argument is a matter of
right. Section 11-18 (a) provides in relevant part: ‘‘Oral
argument is at the discretion of the judicial authority
except as to motions to dismiss, motions to strike,
motions for summary judgment, motions for judgment
of foreclosure, and motions for judgment on the report
of an attorney trial referee and/or hearing on any objec-
tions thereto. . . .’’ We review the claim of error in not
hearing oral argument under an abuse of discretion
standard. See Brochard v. Brochard, 165 Conn. App.
626, 638, 140 A.3d 254 (2016).
It is clear, then, that the defendant was not entitled
to oral argument as of right on her motion for a continu-
ance, her ‘‘motion to open and set aside judgment and
for new trial,’’ her motion to reargue/reconsideration,
and her motion for clarification. The trial court’s deci-
sions not to hold evidentiary hearings with respect to
these motions were, by the rules of practice and case
authority, within its discretion. There is nothing in the
record to indicate that the court abused its discretion
in ruling on the motions without a hearing.2
The defendant focuses her substantive argument
regarding the disposition of her motions on her motion
to open. She argues that Mager’s ‘‘testimony throughout
the trial, while being under oath, was deceitful and
willfully dishonest. That the defendant’s counsel did not
properly cross-examine [Mager] despite the defendant
asking him to do so. In addition, the defendant’s hospital
records were never introduced as evidence. Yet,
[Mager] dishonestly testified as to the contents of the
record. Said testimony was completely fraudulent and
deceitful. The trial court . . . relied on [Mager’s] false
testimony. This resulted in significant harm being done
to the defendant and her minor children. . . . It is clear
in the memorandum of decision that the court based its
recommendation on the testimony of [Mager]. However
the new evidence clearly shows the court that a new
trial would produce a different outcome, in light of the
fact that a key witness for the plaintiff has committed
acts of perjury.’’
The defendant presents two grounds for her argu-
ment that Mager’s testimony was ‘‘fraudulent.’’ First,
she points to the court’s statement in its memorandum
of decision regarding Mager’s testimony during trial.
The court stated that Mager had testified that, during a
discussion he had had with Reitman, Reitman indicated
that he had urged the defendant to attend Alcoholics
Anonymous and had also suggested that the defendant
needed more treatment than what was being provided,
but she refused. The statement, deemed fraudulent by
the defendant, was never made. Although Mager testi-
fied about the underlying facts, he did not testify that
he learned about the facts through a conversation with
Reitman. That the court apparently incorrectly attrib-
uted the information in its memorandum of decision
does not necessarily undermine the judgment; the man-
ner in which Mager obtained this information is not a
fact material to this case, and, thus, the finding as to
attribution is harmless.3 See Lambert v. Donahue, 78
Conn. App. 493, 507, 827 A.2d 729 (2003) (‘‘Where . . .
some of the facts found [by the trial court] are clearly
erroneous and others are supported by the evidence,
we must examine the clearly erroneous findings to see
whether they were harmless, not only in isolation, but
also taken as a whole. . . . If, when taken as a whole,
they undermine appellate confidence in the court’s fact
finding process, a new hearing is required.’’ [Internal
quotation marks omitted.]).
Second, the defendant states that Mager’s testimony
as to the contents of the hospital records regarding the
defendant’s treatment for detoxification at St. Vincent’s
Hospital was intentionally inaccurate. Mager’s testi-
mony as to the content of the records was admitted
into evidence without objection, however, and was not
inconsistent with the testimony of the defendant’s wit-
ness, Reitman; we note, however, that Reitman’s testi-
mony regarding the contents of the hospital records
was less comprehensive than that of Mager. Further,
the defendant herself presumably could have intro-
duced the hospital records themselves into evidence
in order to contest Mager’s version of events.4 In this
respect, because any discrepancies could have been
discovered at trial, the evidence could not have been
newly discovered for purposes of a motion to open.
Worth v. Korta, 132 Conn. App. 154, 160–61, 31 A.3d
804 (2011) (evidence ‘‘newly discovered’’ for purposes
of motion to open if ‘‘it could not have been discovered
earlier by the exercise of due diligence’’ [emphasis omit-
ted; internal quotation marks omitted]), cert. denied,
304 Conn. 905, 38 A.3d 1201 (2012). It was clear from
the motion to open itself that the defendant’s assertions
of perjury, in the absence of newly discovered docu-
mentation, lacked merit. The court did not abuse its
discretion in denying the motion to open without an
evidentiary hearing.
II
The defendant next claims that the court erred in
granting sole legal custody of the minor child to the
plaintiff.5 We disagree.
‘‘It is statutorily incumbent upon a court entering
orders concerning custody or visitation or a modifica-
tion of such order to be guided by the best interests of
the child. . . . In reaching a decision as to what is in
the best interests of a child, the court is vested with
broad discretion and its ruling will be reversed only
upon a showing that some legal principle or right has
been violated or that the discretion has been abused.’’
(Citation omitted; internal quotation marks omitted.)
Stahl v. Bayliss, 98 Conn. App. 63, 68, 907 A.2d 139,
cert. denied, 280 Conn. 945, 912 A.2d 477 (2006).
General Statutes § 46b-56 provides in relevant part:
‘‘(a) In any controversy before the Superior Court as
to the custody or care of minor children . . . the court
may make . . . any proper order regarding the cus-
tody, care, education, visitation and support of the chil-
dren . . . [and] the court may assign parental
responsibility for raising the child to the parents jointly,
or may award custody to either parent or to a third
party, according to its best judgment upon the facts of
the case and subject to such conditions and limitations
as it deems equitable. . . .
‘‘(b) In making or modifying any order as provided
in subsection (a) of this section, the rights and responsi-
bilities of both parents shall be considered and the
court shall enter orders accordingly that serve the best
interests of the child and provide the child with the
active and consistent involvement of both parents com-
mensurate with their abilities and interests. Such orders
may include, but shall not be limited to . . . (3) the
award of sole custody to one parent with appropriate
parenting time for the noncustodial parent where sole
custody is in the best interests of the child; or (4) any
other custody arrangements as the court may determine
to be in the best interests of the child.
‘‘(c) In making or modifying any order as provided
in subsections (a) and (b) of this section, the court shall
consider the best interests of the child, and in doing
so may consider, but shall not be limited to, one or
more of the following factors: (1) The temperament and
developmental needs of the child; (2) the capacity and
the disposition of the parents to understand and meet
the needs of the child; (3) any relevant and material
information obtained from the child, including the
informed preferences of the child; (4) the wishes of the
child’s parents as to custody; (5) the past and current
interaction and relationship of the child with each par-
ent, the child’s siblings and any other person who may
significantly affect the best interests of the child; (6)
the willingness and ability of each parent to facilitate
and encourage such continuing parent-child relation-
ship between the child and the other parent as is appro-
priate, including compliance with any court orders; (7)
any manipulation by or coercive behavior of the parents
in an effort to involve the child in the parents’ dispute;
(8) the ability of each parent to be actively involved in
the life of the child; (9) the child’s adjustment to his or
her home, school and community environments; (10)
the length of time that the child has lived in a stable
and satisfactory environment and the desirability of
maintaining continuity in such environment, provided
the court may consider favorably a parent who volunta-
rily leaves the child’s family home pendente lite in order
to alleviate stress in the household; (11) the stability
of the child’s existing or proposed residences, or both;
(12) the mental and physical health of all individuals
involved, except that a disability of a proposed custodial
parent or other party, in and of itself, shall not be deter-
minative of custody unless the proposed custodial
arrangement is not in the best interests of the child;
(13) the child’s cultural background; (14) 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; (15)
whether the child or a sibling of the child has been
abused or neglected, as defined respectively in section
46b-120; and (16) whether the party satisfactorily com-
pleted participation in a parenting education program
established pursuant to section 46b-69b. The court is
not required to assign any weight to any of the factors
that it considers, but shall articulate the basis for its
decision. . . .’’
The defendant argues that Mager’s testimony relevant
to the child’s best interests was erroneous and should
not have been relied on by the court. She claims he
was mistaken in testifying, inter alia, that she had been
drinking during the majority of her adult life, including
large amounts of vodka daily, and in reporting that the
children had no desire to have contact with her.6 She
also contends that the court ignored evidence favorable
to her with respect to the ‘‘best interest’’ factors under
§ 46b-56. Most of her argument regarding these factors
refers to abusive behavior on the part of the plaintiff
and the claim that the children had stronger ties to the
defendant than to the plaintiff.
The defendant essentially requests us to reassess the
credibility of witnesses. ‘‘[I]t is well established that the
evaluation of a witness’ testimony and credibility are
wholly within the province of the trier of fact. . . . An
appellate court must defer to the trier of fact’s assess-
ment of credibility because [i]t is the [fact finder] . . .
[who has] an opportunity 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 therefrom.’’ (Citation
omitted; internal quotation marks omitted.) Schoenborn
v. Schoenborn, 144 Conn. App. 846, 851, 74 A.3d 482
(2013). The court found the testimony of Mager credible
and the testimony of the defendant and her family,
to the effect that her issues with alcohol were recent
phenomena and were caused by the behavior of the
plaintiff, not credible. We decline to second-guess
this determination.
The court found that the defendant had been success-
ful in maintaining her sobriety since January, 2012, but
she continued to minimize the significance and extent
of her alcohol related difficulty. The court noted that
it did not credit the testimony of the defendant or her
family that her issues with alcohol were a short term
reaction to circumstances. The court stated that it was
not ignoring emotional abuse by the plaintiff, but that
the defendant’s placing blame elsewhere for her alcohol
issues only placed her and the children at greater risk
and prevented healing between the defendant and the
children.7 The court, on the other hand, noted that the
plaintiff encouraged the children’s negative attitude
toward the defendant and contributed to the breakdown
of the marriage. The court nevertheless found that the
children reported their feelings about the defendant in
very negative terms, even when the defendant was the
primary parent and the plaintiff was not interfering.
The court found that the children considered the defen-
dant’s actions to be harmful to them. The court stated
that the ‘‘strong and consistent preference’’ of the chil-
dren was to have ‘‘very limited contact with the
defendant.’’
The court concluded that, despite the children’s pref-
erence, ‘‘the best interests of the children are served
here by having a meaningful relationship with both par-
ents.’’ The court discussed the difficulty in achieving
that goal in light of the strong views of the children
and the facts that at least one child was almost sixteen
at the time of trial and the children had not experienced
helpful therapy during the pendency of trial. The court
concluded by noting that ‘‘the defendant’s request for
joint legal custody is shocking based on the reality of
this case and truly demonstrates the defendant’s total
lack of insight into her children and the impact her
alcoholism has had on them. . . . She and the plaintiff
have not been able to communicate on any meaningful
level for a very long period of time. While such a lack
of co-parenting communication is not completely her
fault under any sense of the concept it is simply not
a viable path for protecting the minor children and
promoting their best interests at this time.’’ Although
the court ordered that the defendant’s visitation with
the children was set at three hours per week, contingent
upon the defendant refraining from alcoholic bever-
ages, the court also ordered that the children engage
in therapy with the goal of increasing the defendant’s
access to them.
It is clear that the court carefully examined all of the
evidence, analyzed the § 46b-56 factors, and determined
that it was in the children’s best interest to award sole
custody to the plaintiff. ‘‘The controlling principle in a
determination respecting custody is that the court shall
be guided by the best interests of the child.’’ (Internal
quotation marks omitted.) Ford v. Ford, 68 Conn. App.
173, 187, 789 A.2d 1104, cert. denied, 260 Conn. 910,
796 A.2d 556 (2002). We cannot conclude that the court’s
conclusion in this regard was an abuse of discretion.
III
The defendant next claims that the court erred in its
distribution of the marital assets. We disagree.
‘‘[T]his court will not disturb trial court orders unless
the trial court has abused its legal discretion or its
findings have no reasonable basis in the facts. . . .
[T]he foundation for this standard is that the trial court
is in a clearly advantageous position to assess the per-
sonal factors significant to a domestic relations case
. . . . 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.) Misthopoulos v. Mistho-
poulos, 297 Conn. 358, 366–67, 999 A.2d 721 (2010).
The defendant argues essentially that she is unable
to comply with the financial orders that she pay $252
weekly in child support, 47 percent of all unreimbursed/
uncovered medical/dental expenses, 47 percent of all
reasonably necessary child care, and her share of the
expenses required to place the marital home on the
market.8 She contends that she has been ordered to pay
‘‘child support twice’’ because, in addition to the $252
weekly child support, she would expect to spend addi-
tional money on the children during visitations. She
further argues that her recent retirement9 caused a
decrease in her income and that she is unable to pay
the amount required under the financial orders.10
The defendant has not supplied a persuasive reason
to disturb the court’s exercise of discretion in fashion-
ing its orders.11 She was not required to pay child sup-
port twice: courts routinely order a parent who enjoys
visitation also to pay a share of child support.12 The
defendant’s argument that the amount that she was
required to pay exceeded her current income refers to
facts not in the record before the trial court at the time
of the decision and, as such, we cannot consider it.
‘‘[W]e cannot consider evidence not available to the
trial court to find adjudicative facts for the first time
on appeal. . . . It is well established that this court
does not find facts.’’ (Footnote omitted.) State v.
Edwards, 314 Conn. 465, 478, 102 A.3d 52 (2014).
IV
The defendant last claims that the court abused its
discretion in denying her motions for recusal. We
disagree.
‘‘Canon 3 (c) of the Code of Judicial Conduct governs
judicial disqualification. That canon provides in rele-
vant part that (1) A judge should disqualify himself or
herself in a proceeding in which the judge’s impartiality
might reasonably be questioned, including but not lim-
ited to instances where: (A) the judge has a personal
bias or prejudice concerning a party, or personal knowl-
edge of disputed evidentiary facts concerning the pro-
ceeding . . . . Canon 3 (c) thus encompasses two
distinct grounds for disqualification: actual bias and
the appearance of partiality. The appearance and the
existence of impartiality are both essential elements of
a fair trial. . . . As such, [t]o prevail on its claim of a
violation of this canon, [a party] need not show actual
bias. The [party] has met its burden if it can prove
that the conduct in question gave rise to a reasonable
appearance of impropriety.’’ (Internal quotation marks
omitted.) McKenna v. Delente, 123 Conn. App. 137, 143,
1 A.3d 260 (2010). ‘‘A trial court’s ruling on a motion
for disqualification is reviewed for abuse of discretion.
. . . In determining whether there has been an abuse
of discretion, every reasonable presumption should be
given in favor of the correctness of the court’s ruling. . .
Reversal is required only where an abuse of discretion
is manifest or where injustice appears to have been
done.’’ (Internal quotation marks omitted.) In re Chris-
topher C., 134 Conn. App. 464, 471–72, 39 A.3d 1122
(2012).
The defendant asked Judge Adelman several times
to recuse himself. At a hearing held on February 13,
2015, regarding the plaintiff’s motion to vacate the
appellate stay, the defendant requested Judge Adelman
to ‘‘permanently recuse [himself] from my case.’’ After
hearing from the defendant, the court stated: ‘‘[Y]ou’ve
repeatedly made claims that I’m biased against you,
primarily because I’ve ruled against you, although I have
also entered rulings in your favor. . . . If someone
rules against you or does something that is adverse to
your position you immediately assume that person is
biased against you. I certainly regret that you have that
opinion. I’ve certainly done everything I can to give you
a fair hearing on every motion that you’ve raised. Your
motion for me to recuse myself is denied, as it has been
in the past.’’
The defendant argues on appeal that the court
engaged in behaviors showing bias against her, such
as transferring the case to Bridgeport when he was
assigned to Bridgeport, denying her rights to due pro-
cess, relying on the testimony of Mager, and making
certain comments at a July 11, 2014 hearing held on
various postjudgment motions,13 and engaging in retalia-
tion against her for expressing her concerns about the
guardian ad litem system. The citations to the record
referenced in her brief and the motions for disqualifica-
tion to which the defendant directs our attention sug-
gest that the defendant’s argument of bias stems largely
from the court’s rulings that were adverse to her.14
‘‘[T]he fact that a trial court rules adversely to a litigant
. . . does not demonstrate personal bias.’’ (Internal
quotation marks omitted.) Burns v. Quinnipiac Uni-
versity, 120 Conn. App. 311, 317, 991 A.2d 666, cert.
denied, 297 Conn. 906, 995 A.2d 634 (2010). The defen-
dant has offered no valid reason why a reasonable
observer would suspect partiality. McKenna v. Delente,
supra, 123 Conn. App. 143 (‘‘[i]f an objective observer,
in view of all of the facts would reasonably doubt the
court’s impartiality, the court’s discretion would be
abused if a motion to recuse were not granted’’ [internal
quotation marks omitted]). We have carefully examined
the record, including the court’s decision, and find that
the defendant was accorded fair and reasonable consid-
eration. We see absolutely no appearance of impropri-
ety and, indeed, the record reflects nothing other than
a conscientious effort to resolve a contentious case.
We, therefore, reject the assertion that the court abused
its discretion in denying the motion to recuse in this
matter.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant seeks review of these claims under the plain error doc-
trine. This doctrine, codified at Practice Book § 60-5, is an extraordinary
remedy. ‘‘[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
preserved or never raised at all in the trial court, nonetheless requires
reversal of the trial court’s judgment, for reasons of policy. . . . In addition,
the plain error doctrine 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 confidence in the judicial proceedings. . . . Plain
error is a doctrine that should be invoked sparingly.’’ (Internal quotation
marks omitted.) State v. Myers, 290 Conn. 278, 289, 963 A.2d 11 (2009).
The present claim, however, is reviewable without resort to doctrines
reserved for unpreserved claims of error. We will review the merits of this
claim under the abuse of discretion standard.
2
Although notions of due process include the opportunity to be heard;
see Barros v. Barros, 309 Conn. 499, 507–508, 72 A.3d 367 (2013); the
defendant patently was afforded the opportunity to present her points of
view in writing. Such opportunity satisfies due process. See Bojila v.
Shramko, 80 Conn. App. 508, 518, 836 A.2d 1207 (2003) (absence of hearing
on motion to open not violation of procedural due process where hearing
not required under Practice Book § 11-18 [a]).
3
We also note that the evidence regarding the defendant’s difficulties with
alcohol was overwhelming and was provided by several sources.
4
We have examined the exhibits, and do not find the St. Vincent’s Hospital
records to be among those submitted into evidence.
5
The older child has reached the age of majority. We address the claims
only as they relate to the younger child, who is a minor at the time of
this appeal.
6
In her statement of issues regarding this claim the defendant also includes
an argument that the trial court erred in failing to establish a holiday,
vacation, and birthday visitation schedule that included her. Our Supreme
Court ‘‘has consistently held in matters involving child custody, and, by
implication, visitation rights, that while the rights, wishes and desires of
the parents must be considered it is nevertheless the ultimate welfare of
the child which must control the decision of the court.’’ (Internal quotation
marks omitted.) Ridgeway v. Ridgeway, 180 Conn. 533, 541, 429 A.2d 801
(1980). The court’s holiday visitation schedule included visitation on Christ-
mas and Mother’s Day. The court found that the children’s expressed desire
was to have no contact with the defendant, but the court nonetheless found
that it was in the children’s best interest to try to develop a meaningful
relationship with defendant; it ordered therapy for the children in an effort
to try to mend their relationship with the defendant. The court expressed
the ‘‘goal and expectation that the parental access between the defendant
and the minor children shall increase over time . . . .’’ The court further
ordered that the children were free to contact the defendant any time and
the plaintiff was not to interfere, except incident to legitimate discipline.
We conclude that the court did not abuse its discretion in fashioning its
visitation orders.
7
The court also noted that much of the emotional abuse described by
the defendant occurred after the filing of the complaint and after her hospital-
ization.
8
The court ordered that the defendant pay for any improvements or minor
repairs costing less than $500 that might be recommended by the realtor
or required by the buyer’s lender. The cost of major items exceeding $500
were to be shared equally by the parties.
9
Her retirement occurred after the court’s judgment and while this appeal
was pending. Evidence regarding it is not part of the record in this appeal.
10
The defendant argues consistently throughout her discussion of this
claim that the court failed to use a ‘‘mosaic approach’’ in crafting its financial
orders. It is true that ‘‘financial orders are entirely interwoven. The rendering
of judgment in a complicated dissolution case is a carefully crafted mosaic,
each element of which may be dependent on the other.’’ (Internal quotation
marks omitted.) Watrous v. Watrous, 108 Conn. App. 813, 818, 949 A.2d 557
(2008). This statement refers to the practical impossibility of reversing only
one financial order when the entirety of the financial orders are interwoven.
The concept of the mosaic does not specifically apply to the defendant’s
claims.
11
The defendant also argues that the court’s order that she transfer a
percentage of her pension to the plaintiff, while not requiring him to transfer
a portion of his pension to her, was punitive, and that the court’s order
requiring her to maintain life insurance naming the plaintiff as beneficiary
is ‘‘encouraging the plaintiff to have the defendant murdered.’’ The plaintiff’s
arguments are without merit.
12
The duty to support is, however, wholly independent of the right of
visitation. Raymond v. Raymond, 165 Conn. 735, 742, 345 A.2d 48 (1974).
13
At the hearing, Mager testified that, despite his efforts, he was unable
to find a therapist for the minor children by the date specified in the court’s
orders. He stated that he was unable to find a therapist in the immediate
geographical area with a PhD because some declined to provide services
after hearing about the file and the others declined after reviewing the
memorandum of decision. Mager testified that there seemed to be a trend
that therapists refuse to take on high conflict divorce cases. The defendant,
who was self-represented at the hearing, questioned Mager regarding
whether he was adverse to the children engaging in therapy and about her
concerns regarding Mager as the children’s guardian ad litem. The court
sustained the objections of the plaintiff’s attorney as to these questions and
then stated that ‘‘the attack on the therapeutic community by litigants who
have not been successful in court has, obviously, made many of these
therapists adverse to getting involved in these cases. They’re getting sued
and there’s plenty of therapy work for people who are not involved in
litigation. . . . That’s tragic because you and these girls need some thera-
peutic assistance . . . .’’ The court explained, ‘‘I’m going to have to go down
the stream to other therapeutic individuals because you and others like you
have created a hostile environment . . . .’’ The defendant argues that this
statement by the court indicated bias and that the court’s orders were
punitive. We do not agree.
In the course of its remarks, the court was restating Mager’s testimony
regarding a trend in the provision of care by therapists in high conflict
divorce cases, such as the current case. The court’s statements at a post-
judgment hearing, in which an issue was whether orders in the memorandum
of decision had been executed, do not reflect bias in crafting orders months
earlier in its memorandum of decision. The court’s statements reflect its
findings in the memorandum of decision that the defendant refused to
authorize communications between the family relations counselor and one
of the therapists, that the selection of a co-parenting counselor was unduly
delayed at least in part due to the defendant’s procrastination, that, when
therapists were found, the defendant ended therapy more than once, claim-
ing that the therapist was not working well with the children or the parties,
and that the children blamed the defendant for undermining their therapy
and were unwilling to engage in more therapy.
The court, then, expressed factual findings leading to a conclusion that
the defendant was making progress difficult; the court further noted, essen-
tially, that such behavior extrapolated over a larger population caused diffi-
culty for many people. These statements were not in themselves indicative
of a personal bias. See Barca v. Barca, 15 Conn. App. 604, 613, 546 A.2d
887 (‘‘[t]he alleged bias and prejudice, to be disqualifying, must stem from
an extrajudicial 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’’[emphasis omitted; internal quotation marks omitted]), cert. denied,
209 Conn. 824, 552 A.2d 430 (1988).
14
We note that not all of the court’s rulings were adverse to the defendant.
For example, the court decided several contempt motions in favor of the
defendant and, perhaps more markedly, awarded no alimony, despite finding
that the defendant’s income was greater than that of the plaintiff.
At least one of the defendant’s complaints, however, is not grounded in
an adverse ruling. When Judge Adelman was transferred from the regional
family docket in Middletown to an assignment in Bridgeport, he retained
this case. The defendant argues that his retaining the case indicated an
animus toward her. The argument overlooks the more obvious motive of
judicial efficiency and, indeed, the parties resided in Monroe and Fairfield,
far closer to Bridgeport than to Middletown. We do not draw an inference
of animus from a neutral act.