Ponns Cohen v. Cohen, 342 Conn. 354 (2022) (prejudgment and bias & plain error; sanctions and fees for violation of TMC)
Officially released March 8, 2022
In Short: (1) The trial court’s frustrated comments based on Wife’s behavior and conduct over two years of litigation did not rise to the level of plain error; (2) the trial court did not err in ordering attorney’s fees and sanctions for repeated violations of the trial management orders; (3) if you do not object during trial, you will be limited on appeal to the plain error doctrine.
Wife filed for divorce in 2014. A four-day trial began in November of 2015, but the trial court declared a mistrial in August of 2016. The case was then transferred to the Regional Family Trial Docket. Wife, who is an attorney, was self-represented for a period, and, at other times, by three different attorneys. Wife was granted multiple continuances and repeatedly failed to comply with the trial management orders. Husband filed numerous motions for sanctions based on Wife’s failure to comply with those orders and multiple status conferences and hearings were held.
The trial took place over 28 days from August 2017 to August 2018. Wife introduced more than 500 documents as full exhibits and had an additional 260 documents marked for identification. Throughout the trial Wife failed to provide the exhibits in an organized fashion.
The trial court ultimately awarded Wife approximately 50% of the $47.5m marital estate. Wife was ordered to pay $65,000 in legal fees and $5,000 in sanctions for her failure to comply with orders concerning exhibits. Wife appealed.
Wife’s first claim on appeal was that the Judgment should be reversed because the trial court improperly prejudged Wife’s credibility and displayed judicial bias. Wife pointed to two sets of comments which she alleged displayed judicial bias. The first set of comments occurred prior to trial during a telephonic conference when the trial court was in recess. The second set of comments occurred during trial.
Wife did not object to either set of comments before the trial court and therefore asks for a reversal under the plain error doctrine, pursuant to PB § 60-5. The Appellate Court noted that the plain error doctrine is “an extraordinary remedy used by appellate courts to rectify errors committee at trial that, although unpreserved, are of such monumental proportions that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party.”
The Appellate Court indicated that it takes judicial bias claims seriously, but that the allegations must be viewed in context, and discussed the difficulties that Wife’s conduct and behavior caused the trial court.
During the telephonic discussion, which was interrupted by Wife repeatedly, the trial court provided multiple recesses to Wife to allow her to consult with counsel so as to cease the interruptions. During the recesses, although it was declared off the record, the audio recording did not stop. The trial court could be heard to say “I just am not gonna have that stupid woman talk,” “[a]t least she’ll pay for an expedited [report],” ‘‘[i]t’s because of Marianna. … She’s not sick,” and ‘‘[s]he’s gonna be a mess until we get it done.’’ The trial court returned the matter to the record without objection. The Appellate Court found that the comments were made in justifiable frustration and there was no indication that it had any impact on the court’s ruling. The entire record indicated that Wife was treated fairly throughout the lengthy proceedings, stating “although the trial court’s comments were ill-advised” that they could not rise to the level of plain error. The Appellate Court assumed without deciding that the comments were reviewable, despite being during a recess.
The second set of comments occurred during the trial itself in open court and without objection. They included the statement “[j]ust know it’s a complete waste of time” and “[a]re you having a good time yet?” The Appellate Court concluded the comments did not constitute obvious error, where a reasonable person who was aware of all the circumstances would question the judge’s impartiality. The Appellate Court recognized that the trial court was, in fact, human, despite being held to the highest standard. The Appellate Court held that “[i]n light of the isolated nature of the comments, the fact that they did not reflect an opinion derived from an extrajudicial source, and the trial court’s ultimate award to the plaintiff of approximately 50 percent of the marital assets — hardly an outcome bespeaking bias on the part of the decision-maker — we cannot conclude that there was an obvious error that resulted in manifest injustice.” Reaction to behavior is not the same evidence of extrajudicial bias and a fair outcome undercut Wife’s claim.
Wife’s second claim on appeal was that the trial court’s orders of $65,000 in legal fees and $5,000 in sanctions were in error, and that the trial court denied her due process rights regarding failure to comply with the trial management orders. The Appellate Court made very short work of this claim and found it had no merit considering the totality of the record. Over two years, the trial court repeatedly gave Wife the opportunity to be heard regarding her failure to comply and she repeatedly failed to comply.
The Judgment was affirmed.