Grayson v. Grayson

¶1dissenting. I dissent.

¶2I

¶3I would apply to the “findings” of the trial court in this case a more exacting standard than employed by *297the majority. I would, as some jurisdictions have done, apply a test of strict scrutiny. See, e.g., Garter-Bare Co. v. Munsingwear, Inc., 650 F.2d 975 (9th Cir. 1980) and cases cited therein; annot., 54 A.L.R.3d 868, 887-88. This standard of review of the trial court’s factual determinations requires more than deciding, as we normally do under a “clearly erroneous” standard, whether the findings are supported by some credible evidence. It requires us to make “a scrupulous examination of the record to ascertain whether such . . . finding[s] [are] supported by substantial evidence.” (Emphasis added.) State v. Zayas, 3 Conn. App. 289, 297, 489 A.2d 380 (1985). I would employ this heightened standard in this case because of a coalescence of three factors: the important purposes of factual findings of a trial court; the fact that this is a marital dissolution case; and the way in which these findings were adopted and expressed.

¶4First, as the majority recognizes, United States v. Forness, 125 F.2d 928 (2d Cir.), cert. denied sub nom. City of Salamanca v. United States, 316 U.S. 694, 62 S. Ct. 1293, 86 L. Ed. 1764 (1942), in an opinion authored by Judge Jerome Frank and joined by Judges Augustus Hand and Charles Clark, identified the two central purposes of requiring a trial judge to file factual findings: to facilitate appellate review; and to ensure that the trial judge takes care in ascertaining the facts. “It is sometimes said that the requirement that the trial judge file findings of fact is for the convenience of the upper courts. While it does serve that end, it has a far more important purpose—that of evoking care on the part of the trial judge in ascertaining the facts. For, as every judge knows, to set down in precise words the facts as he finds them is the best way to avoid carelessness in the discharge of that duty: Often a strong impression that, on the basis of the evidence, the facts are thus-and-so gives way when it *298comes to expressing that impression on paper. The trial court is the most important agency of the judicial branch of the government precisely because on it rests the responsibility of ascertaining the facts. When a . . . trial judge sits without a jury, that responsibility is his. And it is not a light responsibility since, unless his findings are 'clearly erroneous/ no upper court may disturb them. To ascertain the facts is not a mechanical act. It is a difficult art, not a science. It involves skill and judgment. As fact-finding is a human undertaking, it can, of course, never be perfect and infallible. For that very reason every effort should be made to render it as adequate as it humanly can be.” Id., 942-43; see also International Controls Corporation v. Vesco, 490 F.2d 1334, 1341 n.6 (2d Cir. 1974), cert. denied, 417 U.S. 932, 94 S. Ct. 2644, 41 L. Ed. 2d 236 (1974) (disapproving and “roundly condemning]” trial judge’s adoption in toto of factual findings submitted by counsel).

¶5Second, this is a marital dissolution case. Few, if any, judicial proceedings match such a case for emotion-laden content. “Analogies drawn from commercial litigation fail to respond adequately to the situation of emotional trauma commonly associated with the irretrievable breakdown of a marriage.” Monroe v. Monroe, 177 Conn. 173, 182, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979). It “put[s] two persons, who once shared life’s tenderest intimacies, in a position of combat.” Jackson v. Jackson, 2 Conn. App. 179, 186-87, 478 A.2d 1026 (1984). These considerations compel the conclusion that, perhaps more than in other types of cases, in marital cases “the continued vitality of our judicial system rests in part on the continued perception on the part of its participants of the basic fairness of its procedures.” Gennarini v. Gennarini, 2 Conn. App. 132, 138, 477 A.2d 674 (1984).

¶6*299Because of these considerations, a trilogy of our precedents has established the principle that, in the settlement of marital disputes, full and frank disclosure of essential facts is required among all the participants in the process: counsel, clients and court. In Monroe v. Monroe, supra, 183, the Supreme Court emphasized the need for that disclosure between counsel and client. In Baker v. Baker, 187 Conn. 315, 445 A.2d 912 (1982), that court applied the principle to the disclosures required between the litigants and their counsel, on one hand, and the court on the other. Not long ago, this court applied the same principle to the requirements of disclosure between the adversary sides. “Only full and frank disclosure can facilitate such settlements. Whatever the situation may be in contested dissolution actions, there should be at least a Geneva Convention of rules of war where the parties are able to work out the matter themselves.” Jackson v. Jackson, supra, 188.

¶7The reasons for this principle are obvious. It is essential to the implementation of our strong policy that the “private settlement of the financial affairs of estranged marital partners is a goal that courts should support rather than undermine.” Baker v. Baker, supra, 322; Hayes v. Beresford, 184 Conn. 558, 568, 440 A.2d 224 (1981); Lavigne v. Lavigne, 3 Conn. App. 423, 426, 488 A.2d 1290 (1985). Our support of that goal will be effective only if we instill confidence in marital litigants that we require, as a concomitant of the settlement process, such full and frank disclosure from both sides, for then they will be more willing to forego their combat and to settle their dispute privately, secure in the knowledge that they have all the essential information. In addition, this principle of disclosure facilitates the task of the court to ensure that settlement agreements are substantively fair and knowingly negotiated. Baker v. Baker, supra, 321. Finally, and most poignantly, the settlement of a marital dissolution case is not like the *300settlement of an accident case. It stamps with finality the end of a marriage. “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.” Griswold v. Connecticut, 381 U.S. 479, 486, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965). Courts simply should not countenance either party to such a unique human relationship dealing with the other at arms’ length. Whatever honesty there may, or should, have been during the marriage should at least be required by the court at its end.

¶8These are the teachings of our cases. They represent the distilled wisdom of most judges who have presided over such unhappy proceedings. The approach of the majority in this case is an unfortunate step back from the sunshine of those teachings. I cannot square that approach with the clear step which this court so wisely took in Jackson v. Jackson, supra.

¶9Third, unlike Cameron v. Avonridge, Inc., 3 Conn. App. 230, 235, 486 A.2d 661 (1985), here the trial court mechanically adopted all the proposed findings of the plaintiff and added none of its own, without any recognition in its memorandum of decision that it was doing so and without any explanation for such a radical departure from the norm of the judicial process. Indeed, following a hearing lasting four days, it filed its memorandum of decision within eighteen days after the plaintiff submitted his posthearing brief, an alacrity of decision making which, under other circumstances, would be admirable, given the heavy caseload under which our trial court judges labor. It adopted verbatim the twenty-three critical paragraphs of facts articulated by the plaintiff, apparently without even proofreading them for improper grammar or misspelling. See footnote 3 to the majority opinion: finding *301number 8 (“by a certified public account”); finding number 20 (“The defendent’s”); finding number 21 (“Defendent’s”); and finding number 22 (“Defendent”). It adopted the plaintiff’s proposed findings in toto, a practice which persuasive and respected judicial authority has “expressly disapproved.” Apex Oil Co. v. Vanguard Oil & Service Co., 760 F.2d 417, 421-22 (2d Cir. 1985) (Newman, J.), citing International Controls Corporation v. Vesco, supra.

¶10Such a process can only foster in the litigants’ minds deep skepticism that the findings of the trial judge were truly “ ‘the product of the workings of [his] mind . . . .’” Apex Oil Co. v. Vanguard Oil & Service Co., supra, 422. This can only undermine the marital litigants’ perception of the basic fairness of the process by which their claims were decided, a perception which is essential to the continued vitality of our judicial system. Gennarini v. Gennarini, supra, 138. Therefore, we as an appellate court have an obligation to review the results of that process with strict scrutiny, so as to attempt to redress that perceived unfairness.

¶11I disagree with the basis of the majority’s rejection of the strict scrutiny standard, namely, that a conscientious appellate court will always scrupulously examine the trial court record. The issue is not whether we scrupulously examine the record. The issue involves the standard by which we gauge what that examination yields. I believe that, under the unique circumstances of this case, we should require that the findings be supported, not just by some credible evidence, but by substantial evidence.

¶12We are quite accustomed to applying that more exacting scope of review of factual determinations of the trial court when strong reasons of policy demand it. See, e.g., State v. Zayas, 3 Conn. App. 289, 297, 489 A.2d 380 (1985) (record upon which finding of waiver of *302Miranda rights based must be scrupulously examined to ascertain whether finding supported by substantial evidence); see also Jazlowiecki v. Cyr, 4 Conn. App. 76, 78, 492 A.2d 516 (1985) (“charge of judicial bias or prejudice strikes at the very core of judicial integrity and requires that the record be examined with infinite care”).1 This standard is a useful tool of the appellate trade, when supported by strong reasons of policy. The circumstances of this case compel its use.

¶13II

¶14Applying the strict scrutiny standard to the “findings” of the trial court, I conclude that they do not pass muster. It would serve little purpose in this dissent to go through them item by item and compare them to the evidence, as the majority has done. Indeed, even the majority views three of the four challenged factual determinations of the trial court as “questionable,” “not entirely correct” and “misleading at best,” and the majority, even from its “appellate perch,” perceives “a high degree of suspicion” about the plaintiff’s truthfulness in his financial affidavit. Despite the Herculean effort of the majority to insert a firm foundation under an already crumbling edifice, I am persuaded that critical findings are not supported by substantial evidence, and that a new hearing is warranted.

¶15I would, therefore, find error and remand the case for a new hearing on the defendant’s motion to open the judgment.