Guardian Ad Litem Reform In Connecticut

Just finished reading “GALs are Withdrawing From Cases As Court Reform Tensions Grow” in the Connecticut Law Tribune.  The article states that some lawyers and firms are no longer accepting court appointed cases:

Other lawyers and law firms that are bowing out of the court-appointed work for the time being include Glastonbury-based Brown, Paindiris & Scott, Budlong & Barrett in Hartford, Jeffrey Mickelson in Hartford, and Barry Armata.

This is most unfortunate. I’ve handled several high conflict custody cases over the past 8.5 years. Fortunately, none are occupying my life at the moment. I avoid them unless I think my representation can make a difference for the children involved.

I’ve read some of what has been posted online about Guardian Ad Litems. Frankly, I understand some of the frustration. Messy child custody cases are inherently frustrating because there is no solution. There is only fighting.

Some years ago, I have a case with the potential to get very messy. There are the usual allegations. There are disputes over money. This case has everything it takes to turn into a mess.

Barry Armata gets involved. I forget how. Either opposing counsel and I discussed having him appointed as GAL or the court ordered it. But how he gets involved is a lot less important than what he does.

The court we are in has a cafe. Barry sits down with opposing counsel and me over coffee while court is in recess. He begins laying out a framework to solve some of the issues in the case. He listens to us. He then meets with our clients. Barry recommends getting the case into an “early intervention program” which everyone agrees to. Court ends and our clients have meetings scheduled with Barry.

I wasn’t at my client’s meeting with Barry. But I know my client felt listened to and treated with respect. I know this made a difference to my client.

When we arrived in court for a full day of early intervention, Barry had the trust of both parents. The issues in the divorce were for reasons beyond the scope of this post – highly sensitive and emotionally charged. Barry laid the groundwork for those matters to be discussed in a rational and sensitive manner.

Our full day of early intervention was exhausting. There were many problems to be solved. Many issues to confront. And times everyone thought it discussions would fall apart. They didn’t in large part because of Barry.

By the end of the day, there was an agreement. An agreement that spared the parties a fortune in both time, money, and energy. An agreement that spared a child from years of her parents fighting. An agreement that 4 years later, nobody has sought to modify.

For this, Barry was paid a very modest fee. There are many other ways both in the practice of law and out of the practice of law that he could have earned more money for less hassle.

It’s important for the General Assembly to understand the important work of Guardian Ad Litems in divorce cases. Not all cases turn out like mine. But in many cases, trained GALs can save a lot of money, time, and aggravation.

Court appointed cases are often the most challenging for GALs. Parties are often not represented. These are often high need cases. Cases where skilled work, like that regularly done by Barry Armata is most needed. I hope this storm cloud passes and lawyers like Barry Armata return to accepting appointments.

Attorney Leo Diana Nominated To The Bench

Governor Malloy is nominating 16 attorneys to the Superior Court Bench.

One of those Attorneys is Leo Diana of Manchester.

I’ve known Leo for nearly 9 years. We have been on the opposite sides of several cases during that time. I’ve had a few highly contested hearings opposite Attorney Diana. And I can’t recall the last time I’ve appeared in family court and not run into Leo.

In early January of 2014, Leo was defending a post judgment motion that I had filed. The case was complicated to say the least with very significant problems and very limited resources.

That cold early January morning, Leo showed up in Hartford Family Court on my motion. He was volunteering his time. He had no obligation to be there, whatsoever. Serving as mayor of Manchester and running a busy law practice – Leo has lots of places to be. Yet on that morning, with no other case on the docket, he was in Hartford. He was there as best I can tell – to help someone who needed help.

I talked the case over with Leo. I educated him about my client’s position. He listened. He spoke with his client. Then he used his many years of experience to propose a solution. It was a solution that was radically different than anything the parties had considered before. After thinking it over – Leo had proposed probably the only workable solution to a complex problem. To use a painfully over used term, it was “outside the box”.

For reasons beyond Leo’s control, his solution did not resolve the case. However, both me and my client appreciated his involvement and thoughtfulness. Leo managed this result while at the same time advancing his client’s interest and protecting her legal rights.

At a time when family law attorneys, and GALs are under attack, it’s important to for the General Assembly to be reminded of the outstanding and unsung work that attorneys like Leo Diana did on that January morning.

Leo Diana is fantastic attorney who is going to make a fantastic judge. He will listen. He will help solve problems for those who appear before him. 

Leo’s nomination reflects well upon Governor Malloy and his commitment to strengthening Connecticut’s courts.


Thoughts on Divorce Reforms In Connecticut

Connecticut’s divorce laws, courts, and judges have come under significant scrutiny in recent weeks. The system is in need of reform.

I’ve practiced in the area of family law for the past 8 and a half years. Right now, my family practice consists of helping parties in a divorce solve problems. I cannot deal with the anger and frustration that comes with some cases. Life is too short.

In no particular order here are my thoughts:

1. There should be a mediation center – not in court. Family relations is overwhelmed. Parties often sit around for hours waiting to speak to a mediator for 15 minutes. Mediations should be scheduled at set times and less rushed. Early intervention works. Combine housing, foreclosure, and family mediators into a building suitable for mediation.

2. If mediation is not successful, then promptly assign hearing dates. Family courts can use more judges but that’s likely not in the cards. Judges resolve problems. They don’t solve them. In the event the parties are unable to take control of their own affairs – prompt resolution is the best course.

3. Create a Guardian Ad Litem office. Pay Guardian Ad Litems through the State. In the event parties need a GAL, they should contribute to the cost on a sliding scale.

4. Eliminate the 90 day waiting period. For some parties, the 90 days is purgatory. They have their affairs in order. They reached a fair and equitable resolution of their affairs. Let them get divorced.

5. Set alimony by guidelines. This works so well for child support. Parties should have certainty in this respect. Alimony disputes often spill into custody disputes. Take away the alimony fight.

Connecticut family courts have great people serving in capacities on the bench, at the bar, in family relations, and as guardian ad litems. They do lots of good within the existing framework. But that framework needs to be fixed.

Maligning Judges, attorneys, and guardian ad litems with vicious attacks is poor advocacy. They aren’t the problem. Structural changes are needed.

Who Gets The Engagement Ring After A Break Up?

Much has been made in recent days of a Georgia man having to pay $50,000 for breaking an engagement to his fiancee.

Engagement ring.
Engagement ring.

In Connecticut the most common form of engagement litigation involves engagement rings. Engagement ring litigation is really an extension of property and contractual litigation.

Connecticut follows the modern view is that the gift of the engagement ring is a
conditional gift, the condition being the subsequent marriage of the parties. If the
marriage does not take place, the condition has not been met and the ring should be returned to the donor. Thorndike v. Demirs, No. CV05-5000243S (J.D. Waterbury at Waterbury, Jul. 26, 2007.

Connecticut has adopted the modern view for practical reasons. First, “No-fault’ jurisdictions highlight that the primary purpose behind the engagement period is to allow the couple to test the permanency of their feelings for one another, and with that purpose in mind, it would be irrational to penalize the donor for taking steps to prevent a possibly unhappy marriage.

Further, Connecticut has adopted this rule for judicial economy.  “We do not want to require our judiciary to tackle the seemingly insurmountable task of determining which party was at fault for the termination of an engagement for marriage, as such may force trial courts to sort through volumes of self-serving testimony regarding who-did-what during the engagement.”

There are various exceptions to this rule (e.g. fraud) but the general rule in Connecticut is that the ring belongs to the donor until “I-do’s” are exchanged.

“Appropriately The Day Preceding Valentine’s Day”……CT’s Great Engagement Ring Case

Engagement Ring

I’ve never posted a full case opinion on this blog before.  Opinions usually lack appeal to a general audience. It’s why lawyers are paid to read them. But the case of White v. Finch is worth the read on this Valentine’s Day:

This is an action in which the plaintiff seeks to recover from the defendant the sum of $515.91, alleged to be the value of an engagement ring which, the engagement broken, the defendant has refused to return.

This is a case in which the credibility of the witnesses has greatly influenced the decision of the court. Pagano v. Mitchell, 9 Conn.Sup. 329. The parties joined in some very spirited issues of veracity. Juliano v. Latella, 12 Conn.Sup. 471.

In October, 1962, the plaintiff, then a teacher in the public school and a church organist in the town of Clinton, met the defendant. Going out together, they developed a mutual fondness, one for the other, and, before Christmas, 1962, the plaintiff proposed marriage to the defendant. More unready then unwilling, the defendant demurred, claiming that she wanted time ‘to think it over.’ On February 13, 1963, appropriately the day preceding Valentine’s Day, the proposal was renewed and accepted. One week thereafter the engagement ring, subject of this action, was given to the defendant by the plaintiff. The engagement was not announced publicly immediately. This is important only in that the defendant’s failure to take immediate action to relay the joyous information to the would became a bone of contention between the parties.

There were other problems. The previous constant companionship became infrequent meetings. The plaintiff, a ski enthusiast, sought out the snowcapped hills, leaving the defendant, uninvited, alone in Clinton. The plaintiff, a forceful man, announced to his immediate friends that the wedding was to be in August, although his bride-to-be had not as yet set the date. This no more pleased her than did his gift of a book of etiquette, ‘so that she might plan the wedding correctly,’ but their status as an engaged couple remained the same.

The climax came in the summer of 1963, coincidentally with the tercentencary celebration of the founding of the town of Clinton. Among the planned festivities, there was to be a beauty contest which the defendant had been asked to enter, representing her mother’s garden club. To this the plaintiff had multiple objections, the most cogent of which was that he was, as he stated, to be a judge in the contest. The ethical argument won out, and the defendant withdrew, attending the contest as an observer. The plaintiff, far from being a judge, was not even there. He had gone to the defendant’s home and, not finding her there, suspected the worst.

However unfounded were these suspicions, they remained with the plaintiff until the next day, when the defendant came to the plaintiff’s lodging to seek the return of a punchbowl given them as an engagement present. The purpose of the quest was innocuous. She wanted to use it. The plaintiff at first refused to return it, saying that it had been given to them for their home and there was to be no home. Then followed his statement, ‘As far as I am concerned, this engagement is through.’ The following day the defendant returned to the plaintiff all gifts given her by him. She did not return the engagement ring. Subsequently, an announcement was made in the newspaper, at the defendant’s bidding, that the engagement had been terminated ‘by mutual consent.’

The question whether the engagement was broken by one of the parties or terminated by mutual consent cannot be determined by a newspaper article, calculated to preserve the dignity of both parties as far as the rest of the world was concerned. The defendant could have done little else.

Whether the defendant would have retreated from the engagement before the plaintiff said the fateful words is not in issue. Whatever words were spoken and whatever action was taken to terminate the engagement were spoken and taken by the plaintiff.

The question as to the ownership of the engagement ring is unique in this jurisdiction. Whether Connecticut people are quick to adjust such problems without adjudication or unwilling to publicize them is not quite clear. Others in other jurisdictions have not been so shy. The Roman Law provided for the return of betrothal gifts when the parties mutually dissolved the contract and for forfeiture by the party at fault when the repudiation was unjustified. Fryer, Readings on Personal Property (3d Ed.) p. 957. The prevailing view in the United States and England follows the Roman Law in placing weight upon the fault of the parties. Hence, it has been held that where an engagement is broken owing to the fault of the donor, he may not recover the ring. Schultz v. Duitz, 253 Ky. 135, 69 S.W.2d 27, 92 A.L.R. 600; Beck v. Cohen, 237 App.Div. 729, 262 N.Y.S. 716; Beer v. Hart, 153 Misc. 277, 274 N.Y.S. 671. The decisions are based upon the theory that the ring is given upon an implied condition that the marriage will take place. The law construes a promise of marriage generally to be a promise to marry on request. Clark v. Pendleton, 20 Conn. 495, 505. Seldom are such contracts expressed in very definite language, and they are not improperly or infrequently inferred as much from the conduct of the parties toward each other as from any direct evidence of expressed stipulations. Waters v. Bristol, 26 Conn. 398, 405.

A breach of an executory contract by anticipation occurs only when there is a distinct, unequivocal and absolute refusal to perform. The renunciation must be so distinct that its purpose is manifest and so absolute that the intention to no longer abide by the terms of the contract is beyond question. Wonalancet Co. v. Banfield, 116 Conn. 582, 586, 165 A. 785; Wells v. Hartford Manila Co., 76 Conn. 27, 35, 55 A. 599. No words could have been more distinct, more unequivocal than the plaintiff’s: ‘As far as I am concerned, the engagement is through.’ There was, indeed, a breach of the promise to marry, but it came about through the actions and words of the plaintiff.

It is well settled that the party who has initiated the action and who seeks a judgment in his favor must prove that which he alleges, if he would prevail. Stevens v. Smoker, 84 Conn. 569, 572, 80 A. 788; Lockwood v. Lockwood, 80 Conn. 513, 521, 69 A. 8. This burden of proof the plaintiff has not sustained.

It would be academic to discuss the question of damages here.

For the reasons above stated, the issues are found for the defendant.

Accordingly, judgment may enter for the defendant, who may receive her costs.

-HOLDEN, Judge

White v. Finch, 3 Conn. Cir. Ct. 138, 139, 209 A.2d 199, 200 (1964)


Is Same-Sex Marriage Responsible For Affairs In Connecticut?

Here in Connecticut, same-sex marriage has been the law of the land for over 3 years. Since that time, we’ve been hit with a freak snowstorm in October, an earthquake, and a hurricane – but no locusts as of yet.

In what’s my favorite article of the year, the Gay and Lesbian Community in Minnesota has apologized for ruining the institution of marriage and causing former Senate Majority Leader Amy Koch to stray from her husband.

 “On behalf of all gays and lesbians living in Minnesota, I would like to wholeheartedly apologize for our community’s successful efforts to threaten your traditional marriage,” reads the letter from John Medeiros. “We apologize that our selfish requests to marry those we love has cheapened and degraded traditional marriage so much that we caused you to stray from your own holy union for something more cheap and tawdry.” Link.

Hopefully, CT’s Office of Legislative Research can look into the nexus between same-sex marriage and extra marital affairs in the 2012 legislative session!

Attorney General Jepsen Creates Web Resource For Domestic Violence Victims

Practicing family law, I should be more familiar with social services for domestic violence victims. When presented with a client who is the victim of domestic violence my mind immediately narrows on the client’s legal remedies.

Attorney General Jepsen has compiled a web resource on the Attorney General’s webpage for domestic violence victims. I’ve uploaded this page to my Evernote account.  It is useful for lawyers who need to make referrals to social service agencies.


Honored To Be “A First 100″ Honoree

October is domestic violence awareness month. Last year over 54,000 individuals sought the services of their local domestic violence agency in Connecticut.

Last Wednesday, I was honored to attend an early breakfast in Cromwell. I was named one of Connecticut’s First 100. An award given to male leaders committed to the Connecticut Coalition Against Domestic Violence to raise awareness in regard to the availability of and access to domestic violence services. I was in some really great company including some outstanding members of the legal profession.

I'm the guy on the far right with dark hair and my side to the camera.

The breakfast really got me thinking of what it is that I can do to combat such a large problem and I’m still thinking about that.

At the end of this version of “Betterman”  that appears on the PJ20 soundtrack, Eddie Vedder urges listeners “Don’t run away”.  I can’t think of a more appropriate chorus for Connecticut’s First 100 leaders.

Wouldn’t Want To Be On The Losing Side Of This One

The Connecticut Appellate Court just upheld a trial court ruling finding a plaintiff in contempt and ordering the plaintiff to pay the defendant $71,475.10 in attorney’s fees.  Hirschfeld v. Machinist.

The parties got divorced in 2007 by entering into a separation agreement. The agreement contained a merger clause stating there were no outstanding issues between the parties other than those set forth in the dissolution agreement.

The plaintiff then brought suit against the defendant in New York for a claim that was 10 years old. The New York court dismissed the plaintiff’s claims as “meritless” “outrageous” and “designed to harass”.

The Plaintiff should have spent less time in court and more time listening to the Beatles: