Ford v. Ford

52 Conn. App. 522

727 A.2d 254

VICKI ANN FORD v. THOMAS EDWARD FORD

(AC 17225)

Appellate Court of Connecticut.

Argued December 8, 1998.

Officially released April 6, 1999.

O'Connell, C. J., and Foti and Landau, Js.

Max F. Brunswick, for the appellant (defendant).

Morris I. Olmer, with whom, on the brief, was Robert C. Bird, for the appellee (plaintiff).

Opinion

LANDAU, J.

The defendant, Thomas Edward Ford, appeals from a postdissolution judgment holding him in wilful contempt and entering orders addressed to his alimony arrearage. The dispositive issue on appeal arises from the trial court's denial of a motion for recusal. We must decide whether, under the circumstances of this case, the trial judge's continuing to preside at the hearing created an appearance of impropriety, which required his recusal. We conclude that it did. Because our resolution of this issue is dispositive, it is unnecessary to consider the other issues raised on appeal.¹

The following facts and procedural posture are necessary for the resolution of this appeal. On September 6, 1996, at a contempt hearing,² the defendant's former counsel, Joseph Chiarelli, testified that he had an agreement with plaintiffs counsel some years prior to the contempt proceeding regarding the suspension of alimony payments, which were the subject of the contempt hearing. The hearing was continued and the trial court heard additional testimony on October 17, 1996, and again on October 21, 1996. The plaintiffs former counsel, Louis Parley, testified at the October 21, 1996 hearing that he could not recall whether he had an agreement with Chiarelli.

Following the September 6, 1996 hearing, the trial court, Skolnick, J., and Chiarelli were involved in an unrelated matter. Gordon v. Gordon, Superior Court, judicial district of New Haven, Docket No. 387386 (September 10, 1996). In Gordon, the trial court granted Chiarelli's motion for recusal, stating, "I'm going to recuse myself from all of your matters ... [b]ecause I do not approve of the way you handle yourself."³ In the present case, on October 17, 1996, the defendant filed a motion for recusal of the trial judge, arguing that on the basis of the exchange between Chiarelli and the trial judge in Gordon, the judge was biased. The trial court denied the motion on the same day.

At the conclusion of the hearing, the trial court found the defendant in contempt and found that an arrearage existed toward which the defendant should pay an additional sum each week. This appeal followed.

This action is not the first instance in which this trial judge and this attorney have been the principal players. See Consiglio v. Consiglio, 48 Conn. App. 654, 711 A.2d 765 (1998), and Gordon v. Gordon, supra, Superior Court, Docket No. 387386. In both prior instances, however, Chiarelli appeared before the trial court as an attorney; in this instance, he appeared as a witness. The defendant claims that the prior conversations between the trial judge and Chiarelli and Chiarelli's role as the defendant's chief witness in this action constitute a strong appearance of conflict of interest and partiality.

The plaintiff responds that the only evidence of unfairness to which the defendant can point occurred in an unrelated matter in which Chiarelli acted as an attorney and not as a witness. Furthermore, the prior recusal was based on Chiarelli's actions as an attorney, not on his credibility. The plaintiff also asserts that even if the trial judge was biased against Chiarelli, the finding of contempt does not constitute reversible error because no legal authority exists to support a defense in a contempt proceeding that alleges that the action is excused or justified because an attorney instructed his client to violate a court order. We agree with the defendant.

"No more elementary statement concerning the judiciary can be made than that the conduct of the trial judge must be characterized by the highest degree of impartiality. If he departs from this standard, he casts serious reflection upon the system of which he is a part. A judge is not an umpire in a forensic encounter.... He is a minister of justice.... He may, of course, take all reasonable steps necessary for the orderly progress of the trial.... In whatever he does, however, the trial judge should be cautious and circumspect in his language and conduct. A judge should be scrupulous to refrain from hearing matters which he feels he cannot approach in the utmost spirit of fairness and to avoid the appearance of prejudice as regards either the parties or the issues before him.... Cameron v. Cameron, 187 Conn. 163, 168-69, 444 A.2d 915 (1982). Moreover, disqualification of a trial judge is not dependent upon proof of actual bias. The appearance and the existence of impartiality are both essential elements of a fair trial. Id. Canon 3 (c) (1) of the Code of Judicial Conduct requires a judge to disqualify himself in any proceeding in which judicial impartiality might reasonably be doubted.⁴ Any conduct that would lead a reasonable [person] knowing all the circumstances to the conclusion that the judge's impartiality might reasonably be questioned is a basis for the judge's disqualification.... Postemski v. Landon, 9 Conn. App. 320, 322, 518 A.2d 674 (1986).

"It is [the judge's] responsibility to have the trial conducted in a manner which approaches an atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding. State v. Echols, 170 Conn. 11, 13, 364 A.2d 225 (1975), quoting Glasser v. United States, 315 U.S. 60, 82, 62 S. Ct. 457, 86 L. Ed. 680 (1942).... Cameron v. Cameron, supra, 187 Conn. 169.

"[E]very litigant is entitled to nothing less than the cold neutrality of an impartial judge. It is the duty of [c]ourts to scrupulously guard this right and to refrain from attempting to exercise jurisdiction in any matter where his qualification to do so is seriously brought in question. The exercise of any other policy tends to discredit the judiciary and shadow the administration of justice. It is not enough for a judge to assert that he is free from prejudice. His mien and the reflex from his court room speak louder than he can declaim on this point. If he fails through these avenues to reflect justice and square dealing, his usefulness is destroyed. The attitude of the judge and the atmosphere of the court room should indeed be such that no matter what charge is lodged against a litigant or what cause he is called on to litigate, he can approach the bar with every assurance that he is in a forum where the judicial ermine is everything that it typifies — purity and justice. The guaranty of a fair and impartial trial can mean nothing less than this. Hayslip v. Douglas, 400 So. 2d 553, 557 (Fla. App. 1981), quoting State ex rel. Davis v. Parks, 141 Fla. 516, 519-20, 194 So. 613 (1939)." (Internal quotation marks omitted.) Consiglio v. Consiglio, supra, 48 Conn. App. 659-60.

Furthermore, "an inquiry into disqualification of a judge requires a sensitive evaluation of all the facts and circumstances in order to determine whether a failure to disqualify the judge was an abuse of sound judicial discretion." Abington Ltd. Partnership v. Heublein, 246 Conn. 815, 823, 717 A.2d 1232 (1998). "Accordingly, our review ordinarily is limited to the question of whether a trial judge has abused his discretion." Id., 824.

The plaintiff first asserts that the prior recusal of the trial judge involved Chiarelli's status as an attorney and that in this action he was a witness.⁵ Under these circumstances, this is a distinction without a difference. "Once [a judge] declares that he believes a party or a witness has been deceitful ... he cannot continue to preside in his role of impartial arbiter." Cameron v. Cameron, supra, 187 Conn. 170. While the trial judge, in prior proceedings, did not characterize Chiarelli as "deceitful," he did state, "I do not approve of the way you handle yourself and recused himself from all matters involving Chiarelli.

The plaintiff also maintains that Chiarelli's testimony was not material and that his credibility, therefore, was not really at issue. We disagree.

"In order to constitute contempt, a party's conduct must be wilful. Connolly v. Connolly, 191 Conn. 468, 483, 464 A.2d 837 (1983). The contempt remedy is particularly harsh ... and may be founded solely upon some clear and express direction of the court.... Blaydes v. Blaydes, 187 Conn. 464, 467, 446 A.2d 825 (1982). A good faith dispute or legitimate misunderstanding of the terms of an alimony or support obligation may prevent a finding that the payor's nonpayment was wilful. This does not mean, however, that such a dispute or misunderstanding will preclude a finding of wilfulness as a predicate to a judgment of contempt. Whether it will preclude such a finding is ultimately within the trial court's discretion. It is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court's order. Marcil v. Marcil, 4 Conn. App. 403, 405, 494 A.2d 620 (1985)." (Internal quotation marks omitted.) Eldridge v. Eldridge, 244 Conn. 523, 529, 710 A.2d 757 (1998). The contempt remedy is particularly drastic. "In the summer of 1631 at the Salisbury assizes, a prisoner aggravated at his sentence `ject un Brickbat a le dit Justice que narrowly mist....' An indictment was immediately drawn and `son dexter manus ampute & fix al Gibbet sur que luy mesme immediatement hange in presence de Court.'"⁶ While a misunderstanding or good faith dispute regarding the failure to honor a court order is ultimately within the trial court's discretion; Marcil v. Marcil, supra, 405; the exercise of the trial court's discretion must be surrounded by a pureness and chastity untainted by the appearance of partiality.⁷

Undertaking the necessary review, we must decide whether the circumstances in this case would have led...