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D'Amato v. Hart-D'Amato

Court of Appeals of Connecticut

December 13, 2016


          Argued September 9, 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).

          Beach, Keller and Bear, Js.


          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 entering 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 hearing, (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 disqualification 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 plaintiffs work schedule was inflexible. The defendant's schedule was comparatively 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 alcohol 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 December31, 2011, the defendant had been successful in maintaining 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 defendant'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 contact 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 appropriate 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.


         The defendant first claims that her right to due process 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 post judgment 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 circumstances 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 testified 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 defendant 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 reopen 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 argument 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 ...

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