************************************************
The “officially released” date that appears near the
beginning of an opinion is the date the opinion will be
published in the Connecticut Law Journal or the date it
is released as a slip opinion. The operative date for the
beginning of all time periods for the filing of postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut Law Journal and subsequently in the Connecticut
Reports or Connecticut Appellate Reports. In the event
of discrepancies between the advance release version of
an opinion and the version appearing in the Connecticut Law Journal and subsequently in the Connecticut
Reports or Connecticut Appellate Reports, the latest
version is to be considered authoritative.
The syllabus and procedural history accompanying
an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or
Connecticut Appellate Reports are copyrighted by the
Secretary of the State, State of Connecticut, and may
not be reproduced or distributed without the express
written permission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
************************************************
Page 0 CONNECTICUT LAW JOURNAL 0, 0
2 ,0 0 Conn. App. 1
Kosar v. Giangrande
JAROMIR KOSAR v. MARIE GIANGRANDE
(AC 46271)
Cradle, Clark and Seeley, Js.
Syllabus
The defendant appealed from, inter alia, the judgment of the trial court
dissolving her marriage to the plaintiff and its grant of the plaintiff’s amended
motion for contempt. She claimed, inter alia, that the court abused its
discretion when it limited her presentation of her case-in-chief to only fifteen
minutes during the hearing on the contempt motion. Held:
The trial court abused its discretion and violated the defendant’s right to
due process by affording her only fifteen minutes to present her case-in-chief at the hearing on the plaintiff’s amended motion for contempt and
motion for an injunction, the court having made no effort to divide the time
equitably between the parties or to otherwise ensure that the defendant had
sufficient time to put on her case; accordingly, this court reversed the
judgment of the trial court with respect to the award of attorney’s fees and
ordered a new hearing for the limited purpose of determining whether the
plaintiff was entitled to an award of attorney’s fees.
The trial court did not abuse its discretion in declining to hear the defendant’s
motion to open the parties’ pendente lite agreement regarding the marital
home during the hearing on the plaintiff’s amended motion for contempt
and motion for an injunction.
The defendant could not prevail on her claim that the trial judge committed
plain error by failing to recuse himself sua sponte from presiding over the
parties’ dissolution trial after previously holding a hearing pursuant to Matza
v. Matza (226 Conn. 166) regarding her then counsel’s motion to withdraw,
as the defendant failed to demonstrate that the claimed impropriety was so
clear, obvious and indisputable as to warrant the extraordinary remedy of
reversal, and, even if this court assumed that it was error for the trial judge
not to recuse himself, this court would be unable to conclude that the error
was so obvious as to be not debatable.
The defendant’s claim that the trial court improperly applied the missing
witness rule was without merit, the defendant having mischaracterized the
court’s decision, as the court did not draw an adverse inference as that
term is understood in the context of the missing witness rule but, rather,
the decision made clear that the defendant’s self-serving testimony, without
the benefit of corroborating evidence, was not credible.
The defendant could not prevail on her claim that the trial court improperly
relied on a prior trial court’s credibility finding in adjudicating the parties’
0, 0 CONNECTICUT LAW JOURNAL Page 1
0 Conn. App. 1 ,0 3
Kosar v. Giangrande
dissolution, as the court’s memorandum of decision made clear that it based
its credibility determinations on its own observations.
Argued May 20—officially released October 22, 2024
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the court, Hon.
Michael E. Shay, judge trial referee, granted the plaintiff’s amended motion for contempt and motion for
an emergency ex parte injunction and issued various
orders; thereafter, the court, Moukawsher, J., granted
the motion to withdraw filed by the defendant’s counsel;
subsequently, the case was tried to the court, Moukawsher, J.; judgment dissolving the marriage and
granting certain other relief, from which the defendant
appealed to this court. Reversed in part; further proceedings.
Kenneth J. Bartschi, with whom was Karen L. Dowd,
for the appellant (defendant).
Alexander Copp, for the appellee (plaintiff).
Opinion
CLARK, J. In this dissolution action, the defendant,
Marie Giangrande, appeals following the trial court’s
judgment dissolving her marriage to the plaintiff, Jaromir Kosar, and the trial court’s order on the plaintiff’s
amended motion for contempt and injunctive relief.
On appeal, the defendant claims that the court, Hon.
Michael E. Shay, judge trial referee, (1) abused its discretion and deprived her of due process of law by limiting her case-in-chief on the plaintiff’s pendente lite
amended motion for contempt and motion for injunctive relief to only fifteen minutes and (2) abused its
discretion in refusing to hear her motion to open the
parties’ pendente lite agreement regarding the marital
home. She also claims that the court, Moukawsher, J.,
Page 2 CONNECTICUT LAW JOURNAL 0, 0
4 ,0 0 Conn. App. 1
Kosar v. Giangrande
(3) committed plain error by presiding over the parties’
dissolution trial after conducting a hearing on the
motion of the defendant’s then counsel to withdraw his
appearance and (4) made credibility determinations on
improper bases.1 We agree with the defendant on her
first claim but disagree with her on her other claims.
Accordingly, we reverse in part and affirm in part the
judgment of the trial court.
We begin with the relevant facts and procedural history. The plaintiff commenced this dissolution action
against the defendant by complaint dated April 5, 2019.
In February, 2020, the parties entered into a pendente
lite agreement regarding, inter alia, the sale of the marital home. The agreement provided that the parties
would list the marital home for sale with a mutually
agreed upon broker. The parties agreed that they would
defer to the broker for reasonable and necessary repairs
and improvements prior to listing the home and that
the defendant would pay for those repairs and improvements with the understanding that those costs would
be considered when the court fashioned its financial
orders at the time of dissolution. Prior to hiring anyone
to work on the home, the parties agreed that they would
agree in writing on the provider and the cost. The parties
also agreed to defer to the broker on the listing price
of the home unless the parties otherwise agreed to a
different price. The defendant further agreed to pay
various expenses, including (1) $2060 per month to the
plaintiff, (2) certain car insurance payments, (3) the
first $400 of the marital home’s monthly oil bill, (4)
one-half of the cost of opening and closing the marital
home’s pool, and (5) a one time payment of $7000 to
assist the plaintiff in purchasing a vehicle. On February
Although the defendant additionally claims that the court’s award of
1
attorney’s fees should be reversed because it was based on the flawed
conclusion as to the motion for contempt, that issue is subsumed in the
defendant’s other claims, which we address herein.
0, 0 CONNECTICUT LAW JOURNAL Page 3
0 Conn. App. 1 ,0 5
Kosar v. Giangrande
10, 2020, the court, McLaughlin, J., approved the pendente lite agreement finding that it was fair and equitable under the law.
Following the approval of the pendente lite agreement, the parties filed a host of motions with the court.
Relevant for purposes of this appeal, the plaintiff filed
a motion for contempt on September 25, 2020,2 arguing
that the defendant violated the pendente lite order by
paying the plaintiff less than $2060 per month, failing
and refusing to pay her share of the pool costs, and
failing and refusing to pay for reasonable and necessary
repairs and improvements needed prior to listing the
marital home for sale. The plaintiff filed an amended
motion for contempt on November 10, 2020, making
additional allegations, including, inter alia, that he had
taken care of as many of the repairs and improvements
that he reasonably could with the hope that the court
would order reimbursement to be made by the defendant. He also claimed that, although he had made those
repairs and improvements, the defendant still refused
to sign an agreement to list the property for sale despite
using a broker whom she herself had selected.
On April 20, 2021, the plaintiff filed a motion for an
ex parte emergency injunction, seeking to enjoin the
defendant from further violating the parties’ pendente
lite order as it related to the sale of the marital home.
Specifically, the plaintiff sought an order requiring the
defendant to sign, within twenty-four hours, a listing
agreement for the sale of the property at the listing
price recommended by the broker. In the event the
defendant failed to sign the agreement within that time
frame, the plaintiff requested the court to ‘‘order the
property to be judicially transferred to the plaintiff,
2
The parties filed numerous motions for contempt over the course of the
litigation. The earliest such motion pertaining to the pendente lite order
was filed by the plaintiff on March 13, 2020; he alleged that the defendant
had violated the order by failing to pay her share of the marital home’s oil bill.
Page 4 CONNECTICUT LAW JOURNAL 0, 0
6 ,0 0 Conn. App. 1
Kosar v. Giangrande
granting the plaintiff final decision-making authority as
to all decisions related to the sale of the property so
that he [could] effectuate the order to list and sell the
property, all net proceeds of which [would] be held in
escrow pending agreement of the parties or further
order of the court . . . .’’ The court did not grant ex
parte relief but scheduled the matter for a hearing.
On July 2, 2021, the defendant filed a motion to open
and set aside the court’s February 10, 2020 order
accepting and approving the parties’ pendente lite
agreement. In her motion, the defendant claimed that
the plaintiff’s financial affidavit, dated February 10,
2020, fraudulently misrepresented the plaintiff’s income
and assets.
On July 7, 2021, the court held a virtual hearing to
address the various motions that were pending. At the
outset of the hearing, the court observed that there
were thirteen motions on its docket for that day, which
it described as ‘‘a couple of discovery motions regarding
the Bitcoin,’’ ‘‘a motion to modify which is a little bit
different,’’ and ‘‘a whole mess of contempts . . . that
seem to [involve] an agreement that the parties reached
in . . . 2020.’’ The court also observed that there was
a pending motion to open and to set aside the parties’
pendente lite agreement but that the motion was not
scheduled to be heard that day. Although the defendant’s counsel argued that the defendant’s motion to
open and set aside should be addressed during that
hearing in light of the fact that many of the pending
motions pertained to the pendente lite order that the
defendant sought to set aside, the court nevertheless
ruled that the motion to open would be ‘‘for another
day.’’ After some further discussion about which
motions would be heard that day, the court indicated
that it would focus on the plaintiff’s amended motion
for contempt and motion for an injunction and proceeded with the hearing on those motions.
0, 0 CONNECTICUT LAW JOURNAL Page 5
0 Conn. App. 1 ,0 7
Kosar v. Giangrande
On August 17, 2021, the court issued a memorandum
of decision on the plaintiff’s amended motion for contempt and motion for an injunction. The court concluded that the defendant had violated the pendente
lite order by, among other things, refusing to agree to
and pay for any reasonable and necessary repairs and
improvements to the marital home as recommended by
the broker, obstructing and impeding the listing of the
property, and failing to make the full monthly payment
of $2060. It characterized the defendant’s conduct as
‘‘well outside of the realm of good faith and fair dealing.’’
Although the court denied the plaintiff’s motion for
contempt, it nevertheless ordered the defendant to pay
the plaintiff his reasonable attorney’s fees and the costs
that he incurred.3 The court also granted in part the
plaintiff’s motion for injunctive relief, giving the plaintiff
(1) exclusive possession of the marital home, (2) sole
authority to sign any and all documents necessary to
list the marital property for sale, and (3) sole authority
to engage any person or entity and to contract for all
reasonable and necessary repairs and improvements as
recommended by the broker. The court also ordered
that the cumulative total of any and all sums owed by
the defendant due to her failure to abide by the terms
of the pendente lite order, including all reasonable and
necessary costs for repairs and improvements, would
become a charge against her share of the net proceeds
from the sale of the marital home.
On November 4, 2021, following the denial of her
motion for reargument, the defendant appealed to this
court challenging the court’s August 17, 2021 decision.
On November 26, 2021, the defendant amended her
appeal to also challenge the court’s November 17, 2021
attorney’s fees award. The plaintiff moved to dismiss
3
On November 17, 2021, after a hearing on attorney’s fees, the court
ordered the defendant to the pay the plaintiff $18,792.50 for attorney’s
fees incurred.
Page 6 CONNECTICUT LAW JOURNAL 0, 0
8 ,0 0 Conn. App. 1
Kosar v. Giangrande
the appeal and the amended appeal on the ground that
they were not taken from a final judgment. This court
dismissed the portion of the appeal ‘‘challenging the
pendente lite order of exclusive possession and pendente lite order for injunctive relief’’ but denied the
motion to dismiss ‘‘as to the portion of the appeal challenging the pendente lite award of attorney’s fees.’’
Although this court denied the motion to dismiss as to
the portion of the appeal challenging the pendente lite
award of attorney’s fees, the defendant nevertheless
withdrew her appeal on August 10, 2022.
On June 30, 2022, Attorney Ross Kaufman, the defendant’s then counsel, moved to withdraw his firm’s
appearance on behalf of the defendant. A virtual hearing
on the motion to withdraw was held by the trial court
on July 21, 2022, at which time Attorney Kaufman
requested a hearing pursuant to Matza v. Matza, 226
Conn. 166,
627 A.2d 414 (1993), a hearing colloquially
referred to as a ‘‘Matza hearing.’’4 The plaintiff and his
counsel were ordered to leave the hearing, at which
time the court heard from Attorney Kaufman and the
defendant. By written order dated July 21, 2022, the
court, Moukawsher, J., granted counsel’s motion to
withdraw.
The trial on the dissolution that had been scheduled
for July, 2022, was postponed to a later date so that
the defendant could obtain new counsel. The defendant
subsequently retained counsel, who filed an appearance
on September 23, 2022, and a trial was held on the
dissolution on October 24 and December 16, 2022, and
January 19, 2023. On February 2, 2023, the court rendered judgment dissolving the parties’ marriage and
issued various financial orders. This appeal followed.
A Matza hearing is a hearing on an attorney’s request to withdraw
4
his or her representation of a client because of concerns that continued
representation of that client would result in a violation of the Rules of
Professional Conduct.
0, 0 CONNECTICUT LAW JOURNAL Page 7
0 Conn. App. 1 ,0 9
Kosar v. Giangrande
I
The defendant first claims that the court abused its
discretion and deprived her of due process of law when
it afforded her only fifteen minutes to present her case-in-chief at the July 7, 2021 virtual hearing on the plaintiff’s amended motion for contempt and motion for
injunction. She claims that, although the court ultimately did not find her in contempt following that hearing, it nevertheless concluded that she violated the pendente lite order and awarded the plaintiff attorney’s
fees without affording her a full and fair opportunity
to present her case. She also claims that the court
abused its discretion in refusing to hear her motion to
open at that same hearing. We address the defendant’s
claims in turn.5
5
The plaintiff contends that the defendant waived her right to challenge
the court’s order requiring her to pay the plaintiff’s attorney’s fees because
she previously raised the same issue in an earlier appeal and subsequently
withdrew it. We disagree. The plaintiff points to our decision in Detar v.
Coast Venture XXVX, Inc., 91 Conn. App. 263, 266,
880 A.2d 180 (2005), for
the proposition that a failure to raise an issue in an initial appeal to this
court constitutes a waiver of the right to bring the claim in a subsequent
appeal. The facts of Detar, however, are different from the facts of the
present case, and we are not persuaded that declining review of the defendant’s claim under these circumstances is appropriate. In Detar, this court
decided the merits of an appeal and remanded the case to the trial court
for further proceedings out of which a subsequent appeal later ensued. Id.,
265–66. This court explained that a ‘‘[f]ailure to raise an issue in an initial
appeal to this court constitutes a waiver of the right to bring the claim.’’
Id., 266. Because the defendant in that case failed to challenge the trial
court’s prejudgment interest award in the first appeal when it had the
opportunity to do so, we declined to address the claim in the subsequent
appeal that came before the court. Id. In the present case, however, this
court never decided the merits of the initial appeal because it dismissed
part of the appeal, and the defendant withdrew the remaining part of the
appeal pertaining to the court’s award of attorney’s fees. To the extent the
facts of Detar are similar in some respects to the facts of the present case,
we agree with the defendant that it nevertheless was reasonable under the
circumstances of this case for her to withdraw the remaining portion of her
earlier appeal as to the attorney’s fees because, as the defendant correctly
points out, her challenge to the attorney’s fees award was tied inextricably
to the dismissed portion of the appeal, which challenged the merits of
the underlying judgment out of which the attorney’s fees award arose.
Page 8 CONNECTICUT LAW JOURNAL 0, 0
10 ,0 0 Conn. App. 1
Kosar v. Giangrande
It is well known that ‘‘[m]atters involving judicial
economy, docket management [and control of] courtroom proceedings . . . are particularly within the
province of a trial court. . . . Connecticut trial judges
have inherent discretionary powers to control proceedings, exclude evidence, and prevent occurrences that
might unnecessarily prejudice the right of any party to
a fair trial. . . . The [trial] court has wide latitude in
docket control and is responsible for the efficient and
orderly movement of cases. . . . The trial court has
inherent authority to control the proceedings before it
to ensure that there [is] no prejudice or inordinate
delay.’’ (Citations omitted; internal quotation marks
omitted.) Ill v. Manzo-Ill, 210 Conn. App. 364, 374,
270
A.3d 108, cert. denied,
343 Conn. 909,
273 A.3d 696
(2022).
In reviewing the court’s exercise of its discretion,
however, we are cognizant that ‘‘[t]he court’s discretion
. . . is not unfettered; it is a legal discretion subject to
review. . . . [D]iscretion imports something more than
leeway in [decision making]. . . . It means a legal discretion, to be exercised in conformity with the spirit
of the law and in a manner to subserve and not to
impede or defeat the ends of substantial justice . . . .’’
(Internal quotation marks omitted.) C. A. v. G. L., 201
Conn. App. 734, 739,
243 A.3d 807 (2020).
A court’s obligation to conform with the spirit of the
law necessarily requires conformity with the principles
of due process. When one is charged with contempt,
for instance, due process requires that the person be
‘‘advised of the charges against [her], have a reasonable
opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and
have a chance to testify and call other witnesses [o]n
Accordingly, under the facts of this case, we conclude that the defendant
did not waive her claim.
0, 0 CONNECTICUT LAW JOURNAL Page 9
0 Conn. App. 1 ,0 11
Kosar v. Giangrande
[her] behalf, either by way of defense or explanation.’’
(Emphasis omitted; internal quotation marks omitted.)
Ill v. Manzo-Ill, supra, 210 Conn. App. 376.
‘‘A fundamental premise of due process is that a court
cannot adjudicate any matter unless the parties have
been given a reasonable opportunity to be heard on the
issues involved . . . . Generally, when the exercise of
the court’s discretion depends on issues of fact which
are disputed, due process requires that a trial-like hearing be held, in which an opportunity is provided to
present evidence and to cross-examine adverse witnesses. . . . It is a fundamental tenet of due process
of law as guaranteed by the fourteenth amendment to
the United States constitution and article first, § 10, of
the Connecticut constitution that persons whose . . .
rights will be affected by a court’s decision are entitled
to be heard at a meaningful time and in a meaningful
manner. . . . Where a party is not afforded an opportunity to subject the factual determinations underlying
the trial court’s decision to the crucible of meaningful
adversarial testing, an order cannot be sustained.’’
(Internal quotation marks omitted.) Morera v. Thurber,
187 Conn. App. 795, 799–800,
204 A.3d 1 (2019). As such,
a court does ‘‘not have the right to terminate [a] hearing
before [the parties have] had a fair opportunity to present evidence on the contested issues.’’ Szot v. Szot, 41
Conn. App. 238, 242,
674 A.2d 1384 (1996). ‘‘Whether a
party was deprived of [her] due process rights is a
question of law to which appellate courts grant plenary
review.’’ McFarline v. Mickens, 177 Conn. App. 83, 100,
173 A.3d 417 (2017), cert. denied,
327 Conn. 997,
176
A.3d 557 (2018).
With these principles in mind, we turn to the record
in this case. At the outset of the court’s July 7, 2021
hearing, during which it heard the plaintiff’s amended
motion for contempt and motion for injunction, the
court explained to the parties’ counsel that ‘‘we’ve been
Page 10 CONNECTICUT LAW JOURNAL 0, 0
12 ,0 0 Conn. App. 1
Kosar v. Giangrande
assigned one day. You’re both very experienced counsel. This will take one day. This is not going over into
another day. There was a time when thirteen motions
[would] strike terror in my heart, it does not anymore.’’
A few moments later, the court reiterated that ‘‘[t]his
is [the] time that you guys have been allotted, this is
the judge that you have been allotted, and this will
finish by no later than 4:45 this afternoon and, maybe,
hopefully sooner.’’ The court indicated that it would
focus on the plaintiff’s amended motion for contempt
and motion for injunction.
The plaintiff proceeded to put on his case. The plaintiff’s counsel called as witnesses the plaintiff, the defendant, and Timonthy Dent, the parties’ real estate agent.
At no point during the hearing did the court give the
plaintiff’s counsel a tentative deadline by which she
was required to conclude her presentation of evidence
to ensure that the defendant had ample time to present
her case. After the plaintiff rested his case late in the
afternoon, the court said to the defendant’s counsel:
‘‘Okay. [Attorney] Kaufman, you have sixteen minutes,
so I would, you know, urge you to if you have any
witnesses that you want to call, [that] you use your
time wisely. You know . . . as I said, this is my function
is to manage this case. We have two motions, one of
them [is] a contempt motion. Contempt is a relatively,
you know, easy motion. You know, we’re now five hours
down the road so I think that we’ve aired this out pretty
well. . . . [I]f you do have some testimony that you
think is relevant to the points that are . . . seminal
whatever you want to call it, you know, the gravamen
of these two motions, then please call them. You’ve got
fifteen minutes to do it.’’6
6
By that point, the court already had been put on notice that the defendant
intended to present a case-in-chief and did not intend to rely solely on her
cross-examination of the witnesses. Indeed, earlier in the hearing, the court
pressured the parties during the plaintiff’s direct examination and the defendant’s cross-examination of the defendant to finish up with that witness. It
stated: ‘‘I think we need to button this witness down here. . . . [W]e need
0, 0 CONNECTICUT LAW JOURNAL Page 11
0 Conn. App. 1 ,0 13
Kosar v. Giangrande
The defendant’s counsel then proceeded to recall the
defendant. After some questioning, the court interrupted counsel, stating: ‘‘We’ve reached the witching
hour, folks, it’s 4:45.’’ At this point, the court had already
reminded the parties multiple times that it would be
concluding the proceedings at 4:45 p.m. The court
extended the hearing five minutes to allow both attorneys to tell the court ‘‘what you think [it] need[s] to do
and what . . . the evidence show[s].’’ When the defendant’s counsel was afforded the opportunity to speak,
he stated: ‘‘I just want to state for the record I did
not have a chance to complete my case-in-chief.’’ The
defendant’s counsel then proceeded to make his closing
argument, stating at one point during the argument that
‘‘[y]ou heard counsel just say there was no evidence
about that. You know what? She’s right. There was no
evidence because we didn’t get to it. And I’m certain
that, had we gotten to it, there would have been evidence to that point. But we didn’t get to it.’’ The court
responded: ‘‘[W]ould have, should have, could have.
You know, everybody knew at ten o’clock this morning
what the ground rules were. So, you know . . . I make
no apologies.’’
A
The defendant claims that the court abused its discretion and violated her due process rights by affording
to finish with this witness.’’ Although the defendant’s counsel had more
questions for his client on cross-examination, he assuaged the court, stating:
‘‘Your Honor, I can pass the witness, I can take up the rest of my inquiry
on the defendant’s case-in-chief.’’ The court responded: ‘‘Okay.’’ Later in the
hearing, the court inquired on whether the defendant’s counsel intended to
rely on his cross-examination or planned on presenting a case-in-chief. The
court stated: ‘‘[C]ertainly, if there’s some, you know, burning issue that, you
know, that you feel that you need to get to that you didn’t cover on your
cross-examination I certainly want to give you the opportunity to do that.’’
Defense counsel reiterated to the court: ‘‘I have a case-in-chief that I’d like
to put on, I intend to recall my client . . . . [Y]ou know, I—I passed over
her previously so that we could get to Mr. Dent while he was on the screen
and prepared to go.’’
Page 12 CONNECTICUT LAW JOURNAL 0, 0
14 ,0 0 Conn. App. 1
Kosar v. Giangrande
her only fifteen minutes to present her case-in-chief at
the hearing during which the court heard the plaintiff’s
amended motion for contempt and motion for an injunction. We agree.
There is no question that a court may limit the time
allowed for an evidentiary hearing. See, e.g., Dicker v.
Dicker, 189 Conn. App. 247, 265,
207 A.3d 525 (2019).
But that limitation must be reasonable in light of the
needs of the parties to present their cases. See Eilers
v. Eilers, 89 Conn. App. 210, 218,
873 A.2d 185 (2005).
The court’s limitations in the present case were not
reasonable.
Although the court may have wanted to complete the
hearing in one day, due process cannot be administered
arbitrarily with a stopwatch. See Ill v. Manzo-Ill, supra,
210 Conn. App. 383 (concluding that trial court deprived
plaintiff of due process of law by affording plaintiff only
one day to present defense, when the defendant was
given four days to present her case). Throughout the
hearing, the court made it clear that it intended to complete the hearing in one day without going beyond 4:45
p.m. Although such a goal, in and of itself, does not
necessarily violate due process in any given case, arbitrarily limiting the defendant in the presentation of her
case after giving the plaintiff almost the entire allotted
time to present his case deprived the defendant of a
full and fair opportunity to be heard. See, e.g., Szot v.
Szot, supra,
41 Conn. App. 242 (‘‘[t]he court . . . did
not have the right to terminate the hearing before the
plaintiff had a fair opportunity to present evidence on
the contested issues’’).
The defendant was afforded only fifteen minutes to
present her case-in-chief, and the court made no effort
to divide the time equitably between the parties or to
otherwise ensure that the defendant had sufficient time
to put on her case. Though the defendant was afforded
0, 0 CONNECTICUT LAW JOURNAL Page 13
0 Conn. App. 1 ,0 15
Kosar v. Giangrande
the opportunity to cross-examine the plaintiff’s witnesses, cross-examination is not a substitute for presenting one’s own case. See Zakko v. Kasir, 223 Conn.
App. 205, 214,
308 A.3d 92 (2024) (‘‘[i]t is axiomatic that
parties have a right to present evidence on contested
issues when at a hearing before the court’’).
The court’s management of the July 7, 2021 hearing
resulted in the plaintiff receiving several hours to present his case-in-chief while the defendant was afforded
just a few minutes. The court’s failure to allow the
defendant more time to present her case improperly
deprived her of a ‘‘fair opportunity to present evidence
on the contested issues.’’ Szot v. Szot, supra,
41 Conn.
App. 242. Accordingly, the judgment of the trial court
must be reversed and the case remanded for further
proceedings.
We still must decide, however, the appropriate scope
of our remand. Following the hearing at which the
defendant’s due process rights were violated, the court
issued a decision on August 17, 2021. In its decision,
the court found that the defendant had violated the
pendente lite order by, among other things, refusing to
agree to and pay for any reasonable and necessary
repairs and improvements to the marital home as recommended by the broker, obstructing and impeding
the listing of the property, and failing to make the full
monthly payment of $2060. As a result, it issued various
orders related to the plaintiff’s motion for an injunction,
including, inter alia, that the plaintiff would have sole
possession of the marital home and sole authority (1)
to sign any and all documents necessary to list the
marital property for sale and (2) to engage any person or
entity and to contract for all reasonable and necessary
repairs and improvements as recommended by the broker. It further ordered that the cumulative total of any
and all sums owed by the defendant due to her failure
Page 14 CONNECTICUT LAW JOURNAL 0, 0
16 ,0 0 Conn. App. 1
Kosar v. Giangrande
to abide by the terms of the pendente lite order, including all reasonable and necessary costs for repairs and
improvements, would become a charge against her
share of the net proceeds from the sale of the marital
home. Lastly, the court ordered the defendant to pay
the plaintiff his reasonable attorney’s fees and costs as
a result of the court’s determination that the defendant
violated the pendente lite order.
The defendant, while acknowledging that a final judgment of dissolution generally renders a pendente lite
order moot; see Netter v. Netter, 220 Conn. App. 491,
494–95, 298 A.3d 653 (2023); nevertheless contends that
an order reversing the pendente lite orders in this case
would afford her practical relief. Specifically, she
argues that she is entitled to orders: (1) reversing the
award of attorney’s fees, (2) requiring the plaintiff to
pay her what she characterizes as ‘‘restitution’’ for the
$2060 monthly payments and other expenses she paid
under the pendente lite order, and (3) requiring the trial
court to conduct a new trial on ‘‘all financial orders
incident to the decree of dissolution.’’ We address each
claim in turn.
The defendant first contends that we should reverse
the court’s award of attorney’s fees. The plaintiff counters that the defendant waived her claim challenging
the attorney’s fees award when she withdrew her first
appeal from the pendente lite order. For the reasons
set forth in footnote 5 of this opinion, we reject that
claim. Moreover, because the court’s award of attorney’s fees was not extinguished by the final judgment
of dissolution and was predicated on the findings that
the court made following the hearing that we have concluded violated the defendant’s due process rights, we
agree with the defendant that her claim is not moot.
We therefore remand the case for a new hearing on the
plaintiff’s amended motion for contempt for the limited
0, 0 CONNECTICUT LAW JOURNAL Page 15
0 Conn. App. 1 ,0 17
Kosar v. Giangrande
purpose of determining whether the plaintiff was entitled to an award of attorney’s fees.
Next, the defendant claims that, on remand, she is
entitled to what she describes as ‘‘restitution’’ for the
$2060 monthly payments and other expenses she paid
under the pendente lite order. We disagree. That claim
is based solely on the defendant’s claim that the pendente lite order, itself, was procured through fraud.
The defendant’s claim for restitution thus represents a
challenge to the validity of the pendente lite order. It
is well established, however, that a motion for contempt
‘‘does not open to reconsideration the legal or factual
basis of the order alleged to have been disobeyed
. . . .’’ (Internal quotation marks omitted.) Griswold v.
Stern, 126 Conn. App. 265, 272,
10 A.3d 1095 (2011).
Contempt proceedings are limited to determining (1)
whether there was a clear and unambiguous judicial
directive and (2) whether the alleged contemnor wilfully violated that directive. See M. S. v. M. S., 226 Conn.
App. 482, 494 n.9,
319 A.3d 223 (2024).
Permitting the alleged invalidity of the underlying
court order to serve as a defense to contempt would
run afoul of the rule that ‘‘[a] party to a court proceeding
must obey the court’s orders unless and until they are
modified or rescinded, and may not engage in ‘selfhelp’ by disobeying a court order to achieve the party’s
desired end.’’ Hall v. Hall, 335 Conn. 377, 397,
238 A.3d
687 (2020). Although the defendant also claims that the
court abused its discretion when it refused to consider
her motion to open the pendente lite order at the July
7, 2021 hearing on the plaintiff’s motions seeking to
enforce the pendente lite order, we reject that claim in
part I B of this opinion.
Lastly, the defendant claims that Judge Shay’s error
requires a new trial on ‘‘all financial orders incident to
the decree of dissolution.’’ Specifically, she argues that
Page 16 CONNECTICUT LAW JOURNAL 0, 0
18 ,0 0 Conn. App. 1
Kosar v. Giangrande
Judge Moukawsher improperly relied on Judge Shay’s
adverse credibility findings in issuing those financial
orders. Because we reject that characterization of Judge
Moukawsher’s decision making in part III B of this
opinion, the defendant’s claim that she is entitled to a
new trial on the financial orders necessarily fails as well.
In sum, because the court failed to provide the defendant with an adequate opportunity to present her case-in-chief, which deprived her of due process of law, the
judgment of the trial court with respect to the award
of attorney’s fees must be reversed. The case is
remanded for a new hearing on the plaintiff’s amended
motion for contempt for the limited purpose of
determining whether the plaintiff was entitled to an
award of attorney’s fees.
B
The defendant next claims that the court abused its
discretion by declining to consider the defendant’s
motion to open and vacate the parties’ pendente lite
agreement at the July 7, 2021 hearing. She acknowledges that the court reasonably could limit the number
of motions to address at that hearing but claims it was
error for the court not to consider her motion to open.
In her view, had the court considered and granted her
motion to open and vacated the pendente lite agreement
as she requested, it would have rendered moot the
defendant’s motion for contempt, which was predicated
on the defendant’s alleged violation of the pendente lite
agreement. We are not persuaded.
At the time of the July 7, 2021 hearing, there were
more than one dozen pending motions before the court,
some of which were filed more than one year prior to
the hearing. Indeed, it is clear from the record that the
plaintiff had been attempting to enforce the parties’
pendente lite agreement for more than one year, as
evidenced by his motions for contempt. A judicial notice
0, 0 CONNECTICUT LAW JOURNAL Page 17
0 Conn. App. 1 ,0 19
Kosar v. Giangrande
went out to the parties on May 25, 2021, informing them
that a remote hearing would be held on July 7, 2021.
The defendant’s motion to open, however, was filed on
July 2, 2021, only five days before the scheduled hearing
was to take place. During the hearing, the court
explained to the defendant’s counsel that his motion
to open was not on the list of motions to be considered
that day and that the motion to open would be ‘‘for
another day.’’ Although the defendant believes it would
have been more efficient for the court to hear her
motion to open first, the court was within its discretion
to decide the motions that it chose to hear—especially
when those motions were filed long before the defendant’s motion to open, which was filed just five days
before the date the court was scheduled to hear motions
pertaining to the underlying order that the defendant
sought to open. See Edgewood Properties, LLC v.
Dynamic Multimedia, LLC, 226 Conn. App. 583, 608,
319 A.3d 123 (2024) (‘‘[t]he trial court has inherent
authority to control the proceedings before it to ensure
that there [is] no prejudice or inordinate delay’’ (internal
quotation marks omitted)). On this record, we cannot
conclude that the court abused its discretion in declining to hear the defendant’s motion to open at the July
7, 2021 hearing.
II
The defendant next claims that the trial court, Moukawsher, J., committed plain error when it presided
over the parties’ dissolution trial after previously holding a Matza hearing between the defendant and her
prior counsel. Specifically, the defendant contends that,
during the Matza hearing, her then counsel accused
her of lying and that those accusations tainted the
court’s view of the defendant. Although the defendant
did not ask the court to disqualify itself from hearing
the dissolution trial, she claims that the court should
have recused itself sua sponte because its impartiality
Page 18 CONNECTICUT LAW JOURNAL 0, 0
20 ,0 0 Conn. App. 1
Kosar v. Giangrande
reasonably could have been questioned. We are not
persuaded.
‘‘[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.’’ (Internal quotation marks omitted.) Reville v. Reville, 312 Conn. 428,
467–68, 93 A.3d 1076 (2014).
This brings us to the relevant legal principles. Rule
2.2 of the Code of Judicial Conduct provides: ‘‘A judge
shall uphold and apply the law and shall perform all
0, 0 CONNECTICUT LAW JOURNAL Page 19
0 Conn. App. 1 ,0 21
Kosar v. Giangrande
duties of judicial office fairly and impartially.’’ Rule 2.11
(a) of the Code of Judicial Conduct instructs that ‘‘[a]
judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably
be questioned . . . .’’ Our Supreme Court has
explained that ‘‘[t]he reasonableness standard is an
objective one.’’ Ajadi v. Commissioner of Correction,
280 Conn. 514, 527,
911 A.2d 712 (2006). ‘‘[T]he question
is not only whether the particular judge is, in fact, impartial but whether a reasonable person would question
the judge’s impartiality on the basis of all the circumstances.’’ (Internal quotation marks omitted.) State v.
Ortiz, 83 Conn. App. 142, 150,
848 A.2d 1246, cert.
denied, 270 Conn. 915,
853 A.2d 530 (2004).
We turn to the relevant facts and procedural history
pertinent to the defendant’s claim. On June 30, 2022,
the defendant’s then counsel, Attorney Kaufman, moved
to withdraw his firm’s appearance on behalf of the
defendant. The written motion stated, without further
elaboration, that there had been a ‘‘breakdown in the
attorney-client relationship.’’ A virtual hearing on the
motion was held on July 21, 2022, at which time Attorney Kaufman requested a Matza hearing be conducted
and indicated that such hearings are typically held outside the presence of the opposing party. The plaintiff’s
counsel did not oppose the motion to withdraw but
did voice concerns about the delays that had already
occurred, pointing out that the defendant had already
been represented by four different law firms. The plaintiff’s counsel therefore objected to any continuance of
the trial that had been scheduled. At that point, the
plaintiff and his counsel left the remote hearing.
Attorney Kaufman then stated to the court: ‘‘I find
myself in the position where I am compelled to seek
mandatory withdraw[al]. Or I am required to withdraw
from this matter pursuant to the Rules of Professional
Responsibility 1.16 (a) (1). The reason being that my
Page 20 CONNECTICUT LAW JOURNAL 0, 0
22 ,0 0 Conn. App. 1
Kosar v. Giangrande
continued representation will result in a violation of
the Rules of Professional Responsibility.’’ Attorney
Kaufman continued: ‘‘I have been asked and told,
instructed to do things in this, in this matter that would,
without question, result in a violation of my—of our
Rules of Professional Responsibility. I don’t know how
much detail Your Honor would like me to get into. I
don’t, as I’ve said, I have not done a hearing like this
before. In nearly twenty years of practice, I’ve never
found myself in this position.’’
The court then proceeded to address the defendant:
‘‘So . . . what Mr. Kaufman’s comments reflect is that
he’s trying to protect your privilege to discuss with him
your views on strategy and tactics with respect to the
trial. So, what he’s telling me is that he believes that
he’s being asked to do something unethical, in essence,
he is not telling me what it is because he doesn’t want
to prejudice your case. So, what would you say in
response?’’ The defendant responded: ‘‘We have a written agreement, and I do not believe there’s any part
of that written agreement that I have crossed or not
complied with. I hear that Attorney Kaufman is saying
that I asked him to do something, which, I guess, would
be unethical. And I do not know what he is pointing to
to indicate that. My work with him has been very, very
different than the work with my previous two lawyers
who were not very active on the case at all. I’m not
aware of any disagreement. Our last interactions were
regarding the attestation. I was given an attestation
review file on Sunday morning and on Monday I came
back. I read their advice on three of those questions
and I came back with corrections. And when I came
back with the corrections is when Attorney Kaufman
said he would not be filing them and that he was, you
know, would not work on the case any longer.’’
Because the defendant told the court that she did
not understand the basis for counsel’s motion to withdraw, the court offered counsel a few minutes to speak
0, 0 CONNECTICUT LAW JOURNAL Page 21
0 Conn. App. 1 ,0 23
Kosar v. Giangrande
with the defendant off the record. Attorney Kaufman
explained to the court that his firm had already engaged
in this conversation with the defendant but that he
agreed that it was a good idea to take five minutes to
discuss the issues again with the defendant.
Once the hearing resumed, the court allowed Attorney Kaufman and the defendant to further address the
court. The court proceeded to ask Attorney Kaufman:
‘‘[I]f the trial goes forward and you follow the instructions of your client, would there be a moment in which
you believe the rules of practice would require you to
make a disclosure to the court that would damage your
client?’’ Attorney Kaufman responded: ‘‘I believe—so,
Your Honor, the short answer is, yes. But I think I want
to add that, before the trial even starts, I would be in
violation of the Rules of Professional Responsibility
before the trial even starts.’’ At the conclusion of the
hearing, the court stated that, ‘‘[b]ecause I’m hearing
completely opposite versions of what this is all about.
Totally opposite versions. . . . I will have to take into
account what both of you have said and get you a
decision on it as soon as possible.’’
Later that day, the court, by written order, granted
Attorney Kaufman’s motion to withdraw. The order provided in relevant part: ‘‘Counsel for [the defendant]
requests to withdraw from the case. They say that the
attorney-client relationship is broken. More important,
they assert that they would be ethically obliged if the
case goes forward with them in it to take steps that
might severely prejudice their client. [The defendant]
objects to her lawyers withdrawing. She says there is
no such issue in the case and that the disagreement
is purely about [the defendant] disagreeing with her
lawyers’ strategy. Even if the issues between [the defendant] and her lawyers is only a strategy disagreement,
the court was convinced at its hearing on the motion
that the disagreement is so fundamental as to mean
Page 22 CONNECTICUT LAW JOURNAL 0, 0
24 ,0 0 Conn. App. 1
Kosar v. Giangrande
[the defendant] would be better served by not having
a lawyer than by having lawyers she will battle with
throughout the trial. And if it’s something more—as
counsel vehemently asserts—it could severely prejudice her case to have a lawyer who may be compelled
to by the Rules of Professional Conduct to make prejudicial disclosures to the court before or during trial.’’
Accordingly, the court found that counsel had good
cause to withdraw.
Subsequently, a trial on the parties’ dissolution was
held before Judge Moukawsher, at which the defendant
was represented by new counsel. At no point during or
after the Matza hearing did either party request that
Judge Moukawsher recuse himself. On February 2,
2023, the court rendered judgment dissolving the parties’ marriage and issued various financial orders.
The defendant claims that Judge Moukawsher committed plain error when he proceeded to try the parties’
dissolution on the merits after previously holding a
Matza hearing between the defendant and Attorney
Kaufman. The defendant contends that Judge Moukawsher was necessarily exposed to harmful information by presiding over the Matza hearing. Although she
concedes that there are no cases holding that the judge
who conducts a Matza hearing may not preside over a
subsequent dissolution trial, she nevertheless argues
that the potential for prejudice, or at least the appearance of impropriety, is obvious.
We conclude that the plaintiff has failed to demonstrate that the claimed impropriety was so clear, obvious and indisputable as to warrant the extraordinary
remedy of reversal. See, e.g., Marafi v. El Achchabi, 225
Conn. App. 415, 438,
316 A.3d 798 (2024). The defendant
essentially advocates for a per se rule that a judge be
required to recuse himself or herself from presiding
over subsequent proceedings of a party if that party’s
0, 0 CONNECTICUT LAW JOURNAL Page 23
0 Conn. App. 1 ,0 25
Kosar v. Giangrande
counsel requests a Matza hearing. Indeed, after requesting a Matza hearing, the defendant contends that the
judge is now tainted by the request and by any hearing
that may take place and will be unable to fairly adjudicate subsequent proceedings involving that party. The
defendant’s argument ignores, however, the fact that
‘‘judges are regularly faced with the task of disregarding
irrelevant and possibly prejudicial evidence and making
a decision based exclusively on the evidence admitted
at trial and the applicable law.’’ Tessmann v. Tiger Lee
Construction Co., 228 Conn. 42, 58,
634 A.2d 870 (1993).
‘‘[J]udges are expected, more so than jurors, to be capable of disregarding incompetent evidence’’; Doe v. Carreiro, 94 Conn. App. 626, 640,
894 A.2d 993, cert. denied,
278 Conn. 914,
899 A.2d 620 (2006); and we have held
that ‘‘[o]pinions formed by the judge on the basis of
facts introduced or events occurring in the course of
the current proceedings, or of prior proceedings, do
not constitute a basis for a bias or partiality motion
unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.’’ (Internal quotation marks omitted.) In re Omar I., 197 Conn.
App. 499, 571,
231 A.3d 1196, cert. denied,
335 Conn.
924,
233 A.3d 1091, cert. denied sub nom. Ammar I. v.
Connecticut, U.S. , 141 S. Ct. 956,
208 L. Ed. 2d
494 (2020).
Contrary to the defendant’s contention, we are not
persuaded that the facts of this case would cause a
reasonable person to question Judge Moukawsher’s
impartiality. The record reflects that, during the Matza
hearing, Attorney Kaufman refrained from divulging any
specific information regarding the reasons why he felt
that his representation of the defendant might place him
in violation of the Rules of Professional Responsibility.
Moreover, in his order on Attorney Kaufman’s motion
to withdraw, Judge Moukawsher in no way indicated
that he believed Attorney Kaufman’s representations
Page 24 CONNECTICUT LAW JOURNAL 0, 0
26 ,0 0 Conn. App. 1
Kosar v. Giangrande
over those of the defendant and instead stated that he
was granting the motion because—regardless of whose
representations were accurate—the conflict between
the defendant and her counsel could prejudice her case.
But even if we assume that it was error for Judge
Moukawsher not to recuse himself from the dissolution
trial after presiding over the Matza hearing, we would
be unable to conclude that the error was so obvious
as to be not debatable. The defendant herself concedes
that there are no cases holding that a judge is required
to recuse himself or herself under these circumstances.
To the contrary, the authority weighs against this proposition. This court has explained that ‘‘[t]here is nothing
extraordinary about a judge who has presided previously over a proceeding concerning a party hearing
another case involving that same party.’’ Senk v. Senk,
115 Conn. App. 510, 516,
973 A.2d 131 (2009). And our
Supreme Court has acknowledged that an opinion held
by a judge as a result of what the judge learned in an
earlier proceeding need not necessarily be characterized as bias or prejudice. See In re Heather L., 274
Conn. 174, 178,
874 A.2d 796 (2005), citing Liteky v.
United States, 510 U.S. 540, 551,
114 S. Ct. 1147,
127 L.
Ed. 2d 474 (1994); see also In re Omar I., supra,
197
Conn. App. 571. Notably, the commentary to Rule 2.11 of
the Code of Judicial Conduct, which addresses recusal,
similarly recognizes that ‘‘[Rule 2.11] does not prevent
a judge from relying on personal knowledge of historical
or procedural facts acquired as a result of presiding
over the proceeding itself.’’ Code of Judicial Conduct,
Rule 2.11, commentary (5). On the basis of the record
before us, we conclude that the defendant has not ‘‘met
the stringent standard for relief pursuant to the plain
error doctrine’’; (internal quotation marks omitted)
Prescott v. Gilshteyn, 227 Conn. App. 553, 581, A.3d
(2024); and, accordingly, the defendant’s plain error
claim fails.
0, 0 CONNECTICUT LAW JOURNAL Page 25
0 Conn. App. 1 ,0 27
Kosar v. Giangrande
III
The defendant next claims that the trial court made
credibility determinations on improper bases. Specifically, she contends that the court improperly (1) applied
the missing witness rule and (2) relied on a prior court’s
credibility findings. We disagree.
We begin by setting forth our standard of review and
the relevant legal principles pertaining to the defendant’s claim. Whether the court properly applied the
‘‘ ‘missing witness’ ’’ rule is a question of law over which
our review is plenary. Watson Real Estate, LLC v. Woodland Ridge, LLC, 187 Conn. App. 282, 295,
202 A.3d
1033 (2019). To the extent we are called upon to review
the trial court’s factual findings, we review them for
clear error. See Hammel v. Hammel, 158 Conn. App.
827, 832,
120 A.3d 1259 (2015). ‘‘A finding of fact is
clearly erroneous when there is no evidence in the
record to support it . . . or when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction
that a mistake has been committed.’’ (Internal quotation
marks omitted.) Fogel v. Fogel, 212 Conn. App. 784, 788,
276 A.3d 1037 (2022). ‘‘Because it is the trial court’s
function to weigh the evidence and determine credibility, we give great deference to its findings. . . . In
reviewing factual findings, [w]e do not examine the
record to determine whether the [court] could have
reached a conclusion other than the one reached. . . .
Instead, we make every reasonable presumption . . .
in favor of the trial court’s ruling.’’ (Internal quotation
marks omitted.) Ackerman v. Sobol Family Partnership, LLP, 298 Conn. 495, 508,
4 A.3d 288 (2010).
A
We first address the defendant’s claim that the court
improperly applied the missing witness rule. ‘‘For
Page 26 CONNECTICUT LAW JOURNAL 0, 0
28 ,0 0 Conn. App. 1
Kosar v. Giangrande
decades, Connecticut recognized the . . . missing witness rule, which sanctioned a jury instruction that [t]he
failure of a party to produce as a witness one who [1]
is available and [2] . . . naturally would be produced
permits the inference that such witness, if called, would
have exposed facts unfavorable to the party’s cause.
. . . That instruction . . . is now, for various policy
reasons, prohibited by statute in civil cases; General
Statutes § 52-216c; and by [Supreme Court] precedent
in criminal cases [see State v. Malave, 250 Conn. 722,
737 A.2d 442 (1999), cert. denied,
528 U.S. 1170,
120 S.
Ct. 1195,
145 L. Ed. 2d 1099 (2000)]. . . . [H]owever
. . . [a]lthough § 52-216c and Malave restricted the
means by which the trier of fact is apprised of its ability
to draw an adverse inference, it is clear that it remains
permitted to do so. . . . This inference . . . is a permissive rather than a mandatory one—that is, one
which the [trier of fact] at all times is free to accept or
to reject . . . .§ (Citations omitted; footnote omitted;
internal quotation marks omitted.) Watson Real Estate,
LLC v. Woodland Ridge, LLC, supra, 187 Conn. App.
295–96.
The following procedural history is relevant to the
defendant’s claim. During the dissolution trial in the
present case, in the context of explaining the cause of
the marital breakdown, the defendant claimed that she
experienced domestic violence at the hands of the plaintiff. She testified, among other things, that the plaintiff
physically abused her several times per year and verbally abused her continually. She testified that the abuse
included, inter alia, the plaintiff’s attempt to strangle
her and pick her up and throw her on her neck. She also
said that he grabbed her pocketbook, which twisted her
neck. The defendant testified that one of these incidents
occurred in front of the parties’ adult daughter. She
also described verbal abuse, such as being yelled at and
called names, sometimes in front of friends, colleagues,
0, 0 CONNECTICUT LAW JOURNAL Page 27
0 Conn. App. 1 ,0 29
Kosar v. Giangrande
and their daughters. The plaintiff denied abusing the
defendant. Although he acknowledged that they argued,
sometimes in front of their children, he denied any
physical abuse. To the contrary, he testified that the
defendant had an alcohol abuse problem and that there
were times that she would become physically out of
control, including toward the plaintiff.
At one point during the hearing, just prior to a lunch
break, the court stated: ‘‘I wanted to say before we
[recessed] that I’ve been struck by the strong, strong
contrast between the two witnesses with respect to
this question of very serious claims of—of domestic
violence. And those have a very serious impact if true,
and also, they have a very serious impact on the credibility of the two parties. And I don’t—I couldn’t find the—
your witness list, [defendant’s counsel]. I have read
. . . [the] witness list [of plaintiff’s counsel]. I’m just
missing it. But the point is that I don’t note that anyone
has corroborating testimony offered or listed as a potential piece of evidence in the case with regard to these
incidents. There’s one in which I—the name Shanna
came up as a—in this incident with the choking and
the refrigerator incident. And that person was an adult
then and is an adult now I assume. But these are very
serious allegations, and they have significance in terms
of credibility as well. So, the parties should consider
whether they—what I’m supposed to do if there’s no
other evidence on these questions. And I want you to
know that it’s a serious enough matter that if the parties
need time or other accommodations to offer any further
witnesses, I’m open to it. But if they—if they don’t do
it, then they have to consider to—to explain to me in
argument ultimately as they—why there was no other
evidence on it. I just don’t want you to think I’m pushing
you to go forward and not—not have evidence that’s
on such an important matter as this. So, think about
that over the break, too.’’
Page 28 CONNECTICUT LAW JOURNAL 0, 0
30 ,0 0 Conn. App. 1
Kosar v. Giangrande
After the luncheon break, the defendant’s counsel
indicated that the defendant was not prepared to call
her daughter, who was purportedly in therapy because
of the parties’ divorce. The defendant’s counsel then
indicated that he could potentially call the defendant’s
cousin to testify remotely from Massachusetts. The
court stated: ‘‘It’s up to you to decide whether the witness is worth it, so if—if you have some corroborating
testimony about the severity—I mean, these . . .
things that were described were extremely severe. And,
if you have corroborating testimony about that, it would
be important to me. But, if you had—if somebody is
going to come on and testify that they argued or that
there was some sort of mild incident or something it
wouldn’t have the impact that—that you might desire.
So, it’s up to you to decide what testimony you want
to put on ultimately. . . . [T]here’s a very important
judgment call I have to make here. If these things happened as described, they’re very serious. If they—if they
aren’t true, that’s very serious too. And, if [the plaintiff]
was lying about it, that’s very serious. If he’s telling the
truth and your client’s lying about it, that’s very serious.
That’s why this is—this is a very—a very serious,
important aspect of the case because there’s really a
dramatic contrast between these parties on this subject.
So, I wanted you to understand that, and—and then,
you can decide what to do about it. But I have to make
a judgment . . . .’’
On February 2, 2023, the court issued a memorandum
of decision dissolving the parties’ marriage. The court
explained that the parties disputed how to divide the
$665,000 net proceeds held in escrow from the sale of
their former marital home, in addition to whether the
defendant is the beneficiary of a family trust with
‘‘around $1.4 million in assets.’’ It noted that the defendant also sought financial compensation for abuse during the marriage.
0, 0 CONNECTICUT LAW JOURNAL Page 29
0 Conn. App. 1 ,0 31
Kosar v. Giangrande
The court ultimately found the defendant not credible
as a witness. The defendant had claimed that she had
disclaimed any interest in the subject trust and that she
instead had received only approximately $10,000 a year
as a fee for administering the trust. The court did not
believe her. The court noted that ‘‘[t]he supposed disclaimer only surfaced deep into the litigation. It is handwritten. It wasn’t notarized or witnessed. It is patently
convenient, and she says she would have produced it
earlier, but it was in the marital home, and she had no
access to it. Why then didn’t she retrieve it when, while
[the plaintiff] was away, she backed a moving truck up
to the house and made off with a truckload of furniture?’’ The court also found important the fact that ‘‘the
tax documents she swore to be true each year listed
her as beneficiary and showed the payments [from the
trust] as benefits to her even though the forms had a
place for her to report the payments to her as fees.’’
The court stated: ‘‘The court chooses to believe them,
not her self-serving current testimony. And it does so
because of the facts but also from the court’s judgment
of the credibility of the totality of her testimony, her
demeanor, and her unreasonable litigation conduct
labelled already by another judge as ‘well outside the
realm of good faith and fair dealing.’ ’’
As to the claims of abuse, the court noted that,
‘‘[d]espite earlier admitting [that] the parties had just
fallen out of love and that both parties contributed to
the breakdown of the marriage, [the defendant] made
shocking claims at trial that [the plaintiff] physically
abused her several times a year, including repeatedly
throwing her to the floor and, on at least one occasion,
strangling her in front of her daughter.’’ The court
stated: ‘‘If the court believed these claims, it would
certainly tell in terms of the court’s orders. But it doesn’t
believe them. The court pressed [the defendant] to support those claims with some other evidence. She declined
Page 30 CONNECTICUT LAW JOURNAL 0, 0
32 ,0 0 Conn. App. 1
Kosar v. Giangrande
to call her daughter. Instead, she called family members
who said [the plaintiff] has a temper. Reportedly, during
their thirty years of marriage he threw some souvenirs
at her and knocked a hat off her head during a New York
trip. On another hotly disputed occasion, she struck his
car with hers and then he furiously struck her car with
his. But if [the plaintiff] was so brutally and repeatedly
violent—even knowing domestic violence is often hidden—more evidence would likely be found over the
course of thirty years than what she presented. It is a
big thing to take [the defendant’s] word about what
happened on faith when, as already noted, the court
has other reasons to doubt that word.’’ The court subsequently denied the defendant’s claim for alimony.
The defendant claims that the court improperly applied
the missing witness rule. She claims that, in rejecting
her claim that the plaintiff abused her, the court noted
that it had pressed the defendant to support the claims
with other evidence, including by calling her daughter,
but she declined to do so. She claims that, because the
parties’ daughter could have been called by either party,
the trial court erroneously held the defendant’s decision
not to call her daughter against her. We disagree.
Although the defendant endeavors to characterize
the court’s decision as an improper application of the
missing witness rule, it is clear that the court did not
draw an ‘‘adverse inference’’ as that term is understood
in the context of the missing witness rule. As the plaintiff points out, the trial court did not state it was making
an adverse inference and was never asked to do so by
either party. The court did not have occasion to inquire
as to the relative availability of the witnesses or weigh
the applicability of the missing witness rule. Rather,
the court’s decision made clear that the defendant’s
self-serving testimony, without the benefit of any corroborating evidence, was not credible. The court merely
used the defendant’s failure to call her daughter as one
0, 0 CONNECTICUT LAW JOURNAL Page 31
0 Conn. App. 1 ,0 33
Kosar v. Giangrande
example of her failure to corroborate her allegations
of physical abuse. It was properly within the purview
of the trial court to find the defendant’s testimony not
credible without corroborating evidence. See, e.g.,
Davey B. v. Commissioner of Correction, 114 Conn.
App. 871, 878–79,
971 A.2d 735 (2009). Thus, the defendant’s claim that the court improperly applied the missing witness rule is without merit.
B
As a final matter, the defendant claims that the court
improperly relied on a prior court’s credibility findings
in adjudicating the parties’ dissolution. We are not persuaded. Although the defendant contends that Judge
Moukawsher’s judgment was improperly based on the
credibility determinations that Judge Shay made in his
August 17, 2021 decision on the plaintiff’s amended
motion for contempt and motion for injunctive relief,
her argument is belied by the court’s memorandum of
decision. The court’s memorandum of decision is clear
that it chose to believe certain documentary evidence
over the defendant’s self-serving testimony based on
its own observation of ‘‘the totality of her testimony, her
demeanor, and her unreasonable litigation conduct.’’
Although the court noted—quoting Judge Shay’s August
17, 2021 decision—that another judge had described
her litigation conduct as being ‘‘well outside the realm
of good faith and fair dealing,’’ its comment, at best,
was the court’s recognition that its observations confirmed the conduct observed by a prior judge. Although
the defendant attempts to label this as improper, we
have found nothing in our case law to support her
contention. Accordingly, the defendant’s claim fails.
The judgment is reversed with respect to the award
of attorney’s fees and the case is remanded for a new
hearing on the plaintiff’s amended motion for contempt
Page 32 CONNECTICUT LAW JOURNAL 0, 0
34 ,0 0 Conn. App. 1
Kosar v. Giangrande
for the limited purpose of determining whether the
plaintiff was entitled to an award of attorney’s fees; the
judgment is affirmed in all other respects.
In this opinion the other judges concurred.
