Cohen v. Cohen

342 Conn. 354

270 A.3d 89

Marianna Ponns COHEN

v.Benjamin H. COHEN

SC 20605

Supreme Court of Connecticut.

Argued October 13, 2021

Officially released March 8, 2022

James P. Sexton, with whom were Emily Graner Sexton and, on the brief, Julia K. Conlin and Meryl R. Gersz, for the appellant (plaintiff).

Sarah E. Murray, with whom were Eric J. Broder, Christopher J. DeMattie and, on the brief, Robert Dean Vossler, for the appellee (defendant).

McDonald, D'Auria, Mullins, Kahn, Ecker and Keller, Js.

MULLINS, J.

This appeal arises from a lengthy divorce proceeding in which the marriage of the plaintiff, Marianna Ponns Cohen, and the defendant, Benjamin H. Cohen, was dissolved. On appeal, the plaintiff asserts that the judgment of the trial court should be reversed because that court (1) prejudged the plaintiff's credibility and displayed judicial bias, and (2) improperly awarded the defendant $65,000 in legal fees and $5000 in sanctions.¹ We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On February 3, 2014, the plaintiff filed this dissolution action. The case proceeded to trial in November, 2015. The trial court, Tindill , J. , heard evidence over the course of four days. Then, in August, 2016, the trial court declared a mistrial.

Thereafter, the case was transferred to the regional family trial docket. In October, 2016, the trial court ordered the parties to comply with the Superior Court for Family Matters standing trial management orders by November 7, 2016, because trial was scheduled to begin in November, 2016. The defendant complied with the trial management orders but the plaintiff did not. In the months that followed, the trial court, Hon. Barbara M. Quinn , J., judge trial referee, granted numerous motions for continuances filed by the plaintiff because of issues related to her health and that of her family. During this time, two different attorneys entered appearances on behalf of the plaintiff and then subsequently withdrew. At some points during the pretrial proceedings, the plaintiff, who is herself an attorney, proceeded as a self-represented party. Approximately two months before trial was set to begin in July, 2017, another attorney entered an appearance on behalf of the plaintiff, and the trial court again granted a continuance to accommodate the scheduling needs of the plaintiff's new attorney. During this pretrial period, the defendant filed numerous motions for sanctions based on the plaintiff's failure to comply with the trial management orders, which required the parties to share and produce their proposed exhibits in a timely and organized fashion. Instead of issuing sanctions at that point in time, the trial court gave the plaintiff more time to comply with the trial management orders, but the plaintiff failed to comply.

As a result of the numerous motions for continuances, discovery disputes and the plaintiff's failure to comply with the court's trial management orders, the trial court held numerous hearings and status conferences. During many of these hearings and conferences, the plaintiff repeatedly attempted to speak to the court herself, despite being represented by counsel. In response, the trial court repeatedly advised the plaintiff to speak through her counsel and recessed the hearings and conferences on multiple occasions to give the plaintiff an opportunity to confer with counsel.

Trial took place over twenty-eight days from August, 2017, through August, 2018. Prior to trial, the court notified the parties that, "if either side is going to introduce more than 100 exhibits, [the court wanted] those exhibits scanned and available to the court on a thumb drive or a [compact disc] ...." The plaintiff indicated that she would be able to provide her exhibits in an electronic format, stating that "[i]t seems like a sensible thing to do." Nevertheless, throughout the course of the trial, the plaintiff continued to fail to comply with the trial management orders, and the trial court held additional hearings and conferences, attempting to resolve issues surrounding the plaintiff's exhibits.

During the course of the trial, the plaintiff introduced more than 500 documents as full exhibits and had more than 260 additional documents marked for identification. Even after the close of evidence, the plaintiff's failure to provide the exhibits in an organized fashion continued, and the court spent considerable time reconciling exhibits and giving the parties an opportunity to do the same. Ultimately, the trial court issued a memorandum of decision, in which it awarded the plaintiff approximately 50 percent of the total marital assets of $47.5 million.² In addition, the court ordered the plaintiff to pay the defendant $65,000 in legal fees and $5000 in sanctions for her failure to comply with orders concerning exhibits. This appeal followed.³

For the first time on appeal, the plaintiff asserts that the judgment of the trial court should be reversed for plain error because the court improperly prejudged the credibility of the plaintiff and displayed judicial bias. Specifically, the plaintiff points to two sets of comments in which, the plaintiff alleges, the trial court displayed judicial bias. The first set of comments occurred on July 17, 2017, during a telephonic conference, when the court was in recess. The plaintiff claims that these comments indicated that the trial court had predetermined that she was deceitful prior to her testifying at trial. The second set of comments occurred during trial. The plaintiff never raised any objection to either set of comments before the trial court and therefore asks us to reverse the judgment on the basis of plain error. See Practice Book § 60-5.

"The plain error doctrine, which is 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 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. ... 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. ... [Thus, an appellant] cannot prevail under [the plain error doctrine] ... unless [s]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." (Internal quotation marks omitted.) State v. Diaz , 302 Conn. 93, 101, 25 A.3d 594 (2011). In the present case, the plaintiff cannot prevail under the plain error doctrine.

At the outset, it is important to note that the claim of judicial bias is a serious matter, which we do not take lightly. We do not, however, review such allegations in a vacuum, divorced from the context in which the events took place. In order to understand that context, it is important to understand the following background. During the course of the pretrial period, the plaintiff had at least three different attorneys. In addition, the plaintiff, who is an attorney, also entered an appearance as a self-represented party. The trial court allowed the plaintiff to argue on her own behalf when she was in between attorneys and did not have counsel for a particular hearing or conference. This was not a case of hybrid representation, however. Once represented by counsel, the trial court repeatedly reminded the plaintiff, during multiple hearings and conferences, that she could not interrupt the proceedings and must speak through her counsel. Despite the court's repeated reminders about not interrupting and speaking through her counsel, the plaintiff continued to interrupt the proceedings.

On July 17, 2017, the trial court held a telephonic status conference. The plaintiff and her attorney both dialed in to the conference from different locations. Therefore, if the plaintiff tried to add anything to the discussion, it resulted in an interruption of the proceedings. After multiple interruptions and admonishments, the trial court agreed to take a recess to allow the plaintiff to confer with her attorney on a separate line. The trial court then announced: "We'll take a recess ... [a]nd we'll call you back. Bye." The plaintiff suggested that she and her attorney could just put the court on hold, and the trial court agreed. The defendant's attorney then acknowledged that he was still there and would put his phone "on mute, so we can't hear each other." The audio recording of the conference apparently was not stopped or paused during the recess.

As a result, one can hear the trial court whispering during the recess. The plaintiff points to one of the statements made during this recess in support of her plain error claim—namely, the trial court said, "I just am not gonna have that stupid woman talk." Thereafter, the plaintiff's attorney returned to the call and said "[h]ello." The defendant's attorney also said "[h]ello." The trial court then said, "[w]e are returning on to the record then." The conference then continued for more than one hour.

The plaintiff then interrupted again, and the court offered another recess. At that point, the trial court clearly said, "[t]ake a...