Schimenti v. Schimenti

181 Conn.App. 385

186 A.3d 739

Heather SCHIMENTI

v.Matthew SCHIMENTI

AC 39175

Appellate Court of Connecticut.

Argued January 10, 2018

Officially released April 24, 2018

Jeffrey J. White, with whom, on the brief, were Kathleen E. Dion and Kelly Frye Barnett, for the appellant (defendant).

Thomas M. Shanley, for the appellee (plaintiff).

Lavine, Sheldon and Bishop, Js.

BISHOP, J.

In this postjudgment marital dissolution matter, the defendant, Matthew Schimenti, appeals from the trial court's orders requiring him to pay for one half of the initiation fee for a full membership into a country club for the plaintiff, Heather Schimenti, and certain of her counsel fees. On appeal, the defendant claims that the court's orders were improperly based on the trial judge's admitted bias and prejudice arising from her personal experience as a female golfer. He additionally claims that the court's order requiring him to pay the plaintiff's counsel fees constituted an abuse of discretion where the court made no finding of contempt on the basis of his challenged conduct and the plaintiff had ample financial means to pay her own counsel fees. We reverse the judgment of the trial court.

The underlying facts are uncontroverted. Following a trial before the court, Winslow, J. , the marriage of the parties was dissolved by a memorandum of decision dated November 18, 2014. As part of its judgment, the court entered various orders regarding custody, support, periodic and lump sum alimony, and property. Included in these orders was a provision that the defendant would "retain sole rights to the country club membership at Silver Spring Country Club." Shortly thereafter, on December 5, 2014, the defendant appealed to this court, outlining in his preliminary statement of issues numerous claims as to the trial court's financial orders.¹ In conjunction with the appeal, the parties participated in a preargument conference.² At the conference, the parties reached an agreement resolving all the issues on appeal. Accordingly, on May 21, 2015, their agreement was memorialized and entered by the court, Hon. George Levine , judge trial referee, as a modified judgment. The modified judgment included the following provision pertinent to the issues now before this court: "The following sentence shall be added to paragraph 38 [of the original judgment]: The defendant agrees to pay 50 percent of the plaintiff's initiation fee to Innis Arden Country Club."³ Thereafter, upon the entering of the modified judgment, the appeal was withdrawn.

In spite of the parties' accord, disagreements between them continued unabated. By a pleading dated August 17, 2015, the plaintiff moved that the defendant be held in contempt for his alleged failure to comply with the life insurance provision of the dissolution judgment, as modified. Later, by a pleading dated October 6, 2015, the plaintiff moved that the defendant be held in contempt for not timely or fully paying his court-ordered child support. On October 13, 2015, the plaintiff moved that the defendant be held in contempt for his alleged failure to comply with the country club initiation fee provision in the modified judgment. The plaintiff also sought counsel fees in conjunction with the prosecution of these postjudgment contempt motions. Finally, by a motion dated December 9, 2015, the plaintiff sought an order that the defendant be required to timely meet his obligation to make periodic payments to her in accordance with the terms of the judgment, as modified. That motion was subsequently marked "off."

These postjudgment matters first appeared on the short calendar docket on December 14, 2015. On that date, counsel and the court, Winslow, J. , engaged in a discussion regarding the nature of the pending motions with an eye toward having them heard on a later date. During this colloquy, the defendant's counsel stated his belief that the court would need to hear evidence concerning the defendant's intentions at the time he entered into the postjudgment country club initiation fee agreement. The court, however, disagreed, stating as follows that the plaintiff should be entitled to a membership level at the Innis Arden Country Club equal to that of the defendant at his own club: "Whatever it is, it's going to be the same for her."⁴

On February 8, 2016, the court conducted a hearing on the pending motions for contempt and for counsel fees.⁵ Heard and decided by the court on that date were the following: the plaintiff's request for counsel fees in conjunction with her motion for contempt dated August 17, 2015, regarding life insurance;⁶ the plaintiff's motion for contempt dated October 6, 2015, regarding child support and request for counsel fees in conjunction with that motion; and the plaintiff's motion for contempt dated October 13, 2015, alleging the defendant's failure to comply with the country club initiation fee provision in the modified judgment and a request for counsel fees in conjunction with that motion. Although not finding the defendant in contempt, the court ordered the defendant to pay one half of the $70,000 initiation fee for a senior membership at the Innis Arden Country Club and to contribute the sum of $5750 toward the plaintiff's counsel fees relating to the life insurance, child support, and country club initiation fee contempt motions. During the hearing, in response to the request of the defendant's counsel to introduce evidence of the plaintiff's golf history, the court stated: "Don't care what her golf history is, it's what her future is going to be."

Subsequently, the defendant filed a motion with the court to reargue and to reconsider its orders. The court conducted a hearing on April 18, 2016, but denied the motion to reargue. As part of its reasoning for the denial, the court stated: "I don't think it was because I had a misapprehension of facts. I think it was because I took what facts were presented and applied my prejudices, and every judge has—has life history, and life experience that comes out, perhaps, in the way that we rule on certain things. And you happened to have hit a nerve on this one." This appeal followed.

We are mindful that the defendant did not, at any time, ask the court to recuse itself or move for disqualification of the judge. Thus, the defendant's claim of judicial bias is raised for the first time on appeal.⁷ At the outset, we acknowledge that ordinarily a reviewing court will not entertain an issue raised for the first time on appeal. White v. Mazda Motor of America, Inc. , 313 Conn. 610, 619, 99 A.3d 1079 (2014). We also are mindful that although this court may review an unpreserved claim of judicial bias for plain error, not every claim of partiality warrants reversal on the basis of plain error. See, e.g., State v. D'Antonio , 274 Conn. 658, 690–91, 877 A.2d 696 (2005) (although it was improper for trial court to sentence defendant after actively participating in negotiations, court's conduct did not rise to level of bias or implicate integrity of process). Nevertheless, under the present circumstances, we find it necessary to review the defendant's claim of judicial bias under our doctrine of plain error. See Cameron v. Cameron , 187 Conn. 163, 168, 444 A.2d 915 (1982) (Supreme Court reviewed unpreserved claim of judicial bias under plain error because it "implicates basic concepts of fair trial").

"[The plain error] doctrine, 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 ....

"An appellate court addressing a claim of plain error first must determine if the error is indeed plain in the sense that it is patent [or] readily discernable on the face of a factually adequate record, [and] also ... obvious in the sense of not debatable .... This determination clearly requires a review of the plain error claim presented in light of the record.

"Although a complete record and an obvious error are prerequisites for plain error review, they are not, of themselves, sufficient for its application .... [I]n addition to examining the patent nature of the error, the reviewing court must examine that error for the grievousness of its consequences in order to determine whether reversal under the plain error doctrine is appropriate. A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice .... In State v. Fagan , [280 Conn. 69, 87, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S.Ct. 1491, 167 L.Ed. 2d 236 (2007) ], we described the two-pronged nature of the plain error doctrine: [An appellant] cannot prevail under [the plain error doctrine] ... unless 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." (Emphasis in original; internal quotation marks omitted.) Reville v. Reville , 312 Conn. 428, 467–69, 93 A.3d 1076 (2014)....