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Emerick v. Emerick

Court of Appeals of Connecticut

January 31, 2017


          Argued October 20, 2016

         Appeal from Superior Court, judicial district of Hartford, Ficeto, J.

          Roger Emerick, self-represented, the appellant (defend).

          Jon T. Kukucka, with whom were Johanna S. Katz, and, on the brief, Campbell D. Barrett, for the appellee (plaintiff).

          Beach, Sheldon and Flynn, Js. [*]


          FLYNN, J.

         In this marital dissolution action, the self-represented defendant, Roger Emerick, appeals from the judgment of the trial court, Ficeto, J., claiming that the court (1) demonstrated bias against him on the basis of his gender and status as a self-represented party; (2) abused its discretion in awarding the plaintiff, Denise Emerick, $100, 000 in lump sum alimony and in distributing the marital property; (3) improperly denied his request for an order regarding the plaintiff's grandchildren; (4) improperly denied his request for a jury trial; and (5) improperly denied his motions for reargument and for a mistrial. We find none of these claims persuasive and, accordingly, affirm the judgment of the trial court.

         The following facts, as found by the court in its memorandum of decision, and procedural history are relevant to this appeal. The parties were married on February 11, 1994.At the time their marriage was dissolved, which occurred by judgment of the court more than twenty-one years later on June 25, 2015, both parties were sixty-five years old. Throughout the marriage, the plaintiff earned a modest income as a self-employed typist and bookkeeper, with her ‘‘best'' year occurring prior to the marriage, in 1992, when she earned approximately $30, 000. She retired in 2013, and during her last three years of employment earned an income that was in ‘‘the teens.'' At the time of dissolution, the plaintiff received $241.38 per week in social security benefits and $400 per week in pendente lite alimony. As a result of spinal fusion surgery she had undergone in October of 2012 that did not heal properly, the plaintiff experienced pain in her hands and arms. The plaintiff also was diagnosed with recurring ‘‘panic attacks'' in 1996, and takes a multitude of prescription medications to manage the panic attacks and her pain. The defendant was employed as an engineer at the time of dissolution and earned a net income of $1462 per week. He was in good health and desired to retire.

         The defendant owned the marital home, located at 580 Hopewell Road in South Glastonbury, prior to the marriage. While the plaintiff and the defendant did not have children, the plaintiff was the primary caregiver for an assortment of family members who came to reside in the marital home, some of whom were more than ninety years old and required constant care. At some point during the marriage, the plaintiff's daughter and her two children began residing in the marital home.[1]

         In 1996, the parties constructed a substantial addition to the marital home in order to accommodate the plaintiff's mother. The plaintiff's mother paid for the renovations, which cost $212, 000 and added an 850 square foot apartment and bedroom suite to the home. The value of the marital home, which was owned exclusively by the defendant, significantly appreciated as a result of the construction financed by the plaintiff's mother.[2]

         In addition to her role as caregiver, the plaintiff handled the family's finances. She paid the bills, handled some of the investments, and prepared federal and state tax filings. The defendant was unemployed for a period of time in the mid to late 1990s.[3] While the defendant was unemployed, the plaintiff's mother contributed her social security benefits plus an additional $70 per month to pay for the family's household expenses. The defendant began day trading in 1999, and financed the endeavor with $175, 000 in credit card debt and by taking out a line of credit on the marital home. He lost the entire $175, 000. The plaintiff and the defendant repaid the $175, 000 debt over the course of nine years, in part with a $66, 000 contribution from the plaintiff's mother.[4]

         Over time, the marriage began to deteriorate. The defendant lived a ‘‘very structured'' and ‘‘routine based'' life, which took its toll on the plaintiff. The defendant also was generally unsupportive of the plaintiff. In 2013, the plaintiff disclosed to the defendant that she had been sexually abused as a child, to which the defendant ‘‘had no real response'' and ‘‘was indifferent.'' After the plaintiff's spinal surgery in 2012, the defendant was ‘‘shocked'' that the plaintiff had decided to retire and that she had hired a maid to help clean the marital home. Following two physical altercations between the parties in late-2012 and mid-2013, the plaintiff resolved to leave the marriage. In both incidents, the defendant grabbed and pulled the plaintiff's wrists and hands, which, due to her surgery, caused her severe pain. On March 18, 2014, after surreptitiously purchasing a home at 15 Briarwood Road in West Hartford, the plaintiff informed the defendant that she was leaving him. The plaintiff commenced this dissolution action on June 3, 2014.

         On June 25, 2015, following a two day trial, the court entered judgment dissolving the marriage on the ground of irretrievable breakdown, finding that the breakdown was primarily the fault of the defendant. As to the approximate value of the plaintiff's assets at the time of dissolution, the court found that her West Hartford home was valued at $232, 500 and that she had bank accounts totaling $14, 700, a bond in the amount of $8000, and $334, 111 in retirement assets. With respect to the defendant's assets, the court found that his Glastonbury residence, to which the plaintiff did not make any claim in the dissolution proceeding, had an approximate value of $654, 200.[5] The defendant also had $277, 000 in a checking account and approximately $653, 365 in retirement assets, including a 401 (K) plan valued at $375, 153 and an individual retirement account (IRA) valued at $22, 270. In its financial orders, the court awarded the plaintiff lump sum alimony in the amount of $100, 000, payable in four $25, 000 installments, and further ordered the defendant to transfer to the plaintiff all sums in his 401 (K) plan and IRA, which totaled $397, 423. The court declined to award periodic alimony.

         On July 24, 2015, the defendant filed a ‘‘motion to reargue/reconsider'' and a motion for a mistrial. The court denied both motions. This appeal followed. Additional facts and procedural history will be set forth where necessary.


         The defendant's first claim is that the court was biased against him, and in favor of the plaintiff, on the basis of his gender and status as a self-represented party. We disagree.

         As an initial matter, the defendant has failed to comply with Practice Book § 1-23, which provides in relevant part that ‘‘[a] motion to disqualify a judicial authority shall be in writing and shall be accompanied by an affidavit setting forth the facts relied upon to show the grounds for disqualification and a certificate of the counsel of record that the motion is made in good faith.'' This court has held that § 1-23 ‘‘creates a mandatory procedure to be followed by any party seeking to recuse a judge . . . and, if a party fails to follow such procedures, the record is deemed to be inadequate for our review because [the procedures] are a condition precedent to a hearing on a judge's disqualification.'' (Citation omitted; internal quotation marks omitted.) Olson v. Olson, 71 Conn.App. 826, 830, 804 A.2d 851 (2002). Despite raising the issue of judicial bias at several junctures during trial, the defendant never filed a written motion to disqualify the court in accordance with § 1-23.[6] Thus, the defendant has not provided us with an adequate record to review this claim.

         While that procedural deficiency is reason enough to reject the defendant's claim, given the grave nature of his accusation, we, as this court did in Wendt v.Wendt, 59 Conn.App. 656, 693, 757 A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000), address the substance of the claim. ‘‘The standard to be employed when determining whether a judge should recuse herself or himself pursuant to canon 3 (c) [of the Code of Judicial Conduct] is well established. The standard . . . is an objective one [meant to assess] whether [the judge] can be fair and impartial in hearing the case. . . . 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. Thus, an impropriety or the appearance of impropriety . . . that would reasonably lead one to question the judge's impartiality in a given proceeding clearly falls within the scope of the general standard. . . . The question is not whether the judge is impartial in fact. It is simply whether ...

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