Zilkha v. Zilkha

167 Conn.App. 480

144 A.3d 447

Karen ZILKHA

v.David ZILKHA.

Nos. 38006

38007.

Appellate Court of Connecticut.

Argued May 11, 2016.

Decided Aug. 9, 2016.

Edward N. Lerner, Stamford, for the appellant (defendant).

LAVINE, BEACH and BISHOP, Js.

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 judgments.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 procedural history as appropriate.

I AC 38006

In AC 38006, the defendant claims that the court abused its discretion when it denied his motion to modify the financial orders, entered pursuant to the dissolution 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 circumstances had not adequately changed to warrant a modification of the orders. We are not persuaded.

The following facts and procedural history are relevant 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 marital 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 maximum exposure that I have here? And I think—I mentioned 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 impressed with her either. I'm not impressed with either one of these people. One of the pleadings said, [the defendant'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 reputation. Specifically, Ramer identified the presence of newspaper articles stating that the defendant had wilfully violated financial and federal security laws, was a loose cannon employee, had been associated with insider trading, had lied to authorities, and was responsible for a serious incident of family violence perpetrated 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 testimony, the court denied the defendant's motion to modify. In announcing its decision from the bench, the court stated that it had “listened to the testimony of the parties 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 constitute a substantial change in circumstances....”

On May 1, 2015, three days following the court's comment 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 defendant'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 preserved 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 discretion. “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 determinations. [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 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 from them.” (Internal quotation marks omitted.) Nuzzi v. Nuzzi, 164 Conn.App. 751, 753, 138 A.3d 979 (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...