There are some cases which you read about online where you can't help thinking that something really stupid has gone on. This is the situation with the decision on the case Liberti v. Liberti which just came out on January 10, 2010. Let me just give you an overview of what happened based upon the Appellate Court's report on the case.
Here there was a plaintiff, Sunny G. Liberti, and her ex husband Robert D. Liberi, the defendant. They both had a child, a boy, born on December 9, 2003 which would currently make him about 6 at the time the divorce was filed, and then about 9 at the time of this decision.
Apparently, during the pendente lite period, the parties agreed to a joint custody arrangement where mother, Sunny Liberti, had residential custody of the child, and the defendant, Robert Liberti, had visitation. However, there was a provision in the agreement that defendant's mother would be present in the home for any overnight visitation.
Ok, so you already suspect from reading that particular provision that there is something funny going on. The Plaintiff must have some concerns that perhaps there could be some inappropriate behavior going on during the night, otherwise, why bother with such a provision.
At the same time, the parties in the case agreed to appoint a guardian ad litem for the child.
Later the following year, on August 3, 2010, the defendant filed an ex parte motion for immediate sole custody of the minor child which was scheduled for a hearing on August 6, 2010. Prior to the hearing, the case went before a special master which resulted in a new parenting plan which included shared physical custody of the child and increased visitation time for the defendant. The agreement made no mention of the prior requirement that the defendant's mother be present for overnight visitation.
Oh, come on. Please, please, please! Is the Appellate Court really going to skip what happened from the time when the first agreement was signed to the point when the second agreement was signed which would somehow explain the dramatic increase in the defendant's access to the child. I mean, I really want to know. I assume some of what happened must have been the GAL's investigation. So, what did he or she conclude? Don't keep it a big secret!
The narrative then jumps to November 3, 2010 when a deposition was held during which Sunny Liberti, the plaintiff, made allegations of abuse against the defendant with respect to the child and disclosed documentation that allegedly demonstrated the abuse. Well, in the State of Connecticut, that's (i.e. abuse allegations) the kiss of death--don't we all know it!
The appellate court continues on to state that the opposing attorney and the GAL had never seen the documentation of the abuse prior to the deposition. I believe that this statement is made to cast the shadow of doubt on Sunny Liberti's allegations of abuse, but I'm not sure why. I mean, so the plaintiff hadn't actually shared the documents previously, had she made the allegations previously? I'll bet she had! Had she had the opportunity to share the documents previously? Possibly not! Who knows why? It could have been through no fault of her own for all we know.
I'm just getting this feeling that I am not getting the whole story here. I mean, why else would the Defendant have agreed to supervised overnight visitation with the child at the beginning of the case had the Plaintiff not expressed her concern about abuse previously. Oh, the GREAT unspoken. How it is speaking to me now, it is whispering loudly, very loudly in my ear.
So, to move on, we have a crucial juncture in the case where Plaintiff is speaking out about the abuse, she is presenting the evidence, and what happens with her attorney? The Cowardly B--d makes a Motion to Withdraw his Appearance. I mean, excuse me, hello, you were hired to ADVOCATE for your client, whether you believe your client or not, you are supposed to do all you can to further your client's position. And what have you done? You have decided to withdraw from the case, pretty much casting your vote with the defense, discrediting and destroying your client's case.
What Sunny's attorney should have done, ethically speaking, if he didn't want to be in the case, was to defend her to the best of his ability for another month or so and then transfer the case to another attorney. But no, he isn't going to do that! He is going to cause his client as much harm and damage as he can, then withdraw. Is there a special place in hell for attorneys like that, because I would really, really like to know.
Seeing an opportunity, the defendant's attorney then filed an Emergency Motion for Immediate Sole Custody and Supervised Visitation. The court then informed the parties that the defendant's motion would be heard on the same day as the plaintiff attorney's Motion to Withdraw.
Oh, the trial court. You've gotta love it. Give the trial court the opportunity to do something absolutely evil, and it will certainly take it. Here you have a crucial custody motion and an attorney in place on behalf of the plaintiff who has shown himself to be a back stabbing, no good, disloyal skunk and the trial court pretty much puts the plaintiff in a position where the only person there to defend her is the complete skunk. Thank you trial court. I made a bet that you would act equally skunk like, and you did, so I think I win five bucks. OK. Moving on.
At this point in the case the Appellate Court states that "No objection to the immediacy of the hearing was made by either party or the guardian ad litem. In addition, the plaintiff did not express any concern about having her attorney represent her despite his pending motion to withdraw." No, I can imagine she didn't; she was probably in total shock that the Trial Court could act in such an unjust and unfair manner.
There was a hearing and the Court then granted defendant's Emergency Motion for Immediate Sole Custody and Supervised Visitation. Of course, I'm thinking there has been a recent accusation that defendant is abusing this child, and the plaintiff just provided documentation regarding those abuse accusations. Shouldn't they be fully investigated in order to ensure the safety of the child before taking such a drastic step regarding custody? And if there is a great deal of conflict going on at this time of the divorce, is it the best and most reasonable solution to cut the child off from his mother? Is that an emotionally sound decision? I'm not sure about that. I mean, this is a worried mother, not some serial killer.
Apparently, subsequent to this decision the mother submitted a Motion For Reconsideration which was summarily denied. And the Appellate Court continues on the say, "Although the court sumarily denied the motion, the plaintiff did not file a Motion for Articulation of the factual or legal bases for the court's ruling." I will tell you why she didn't. It's because she was a self-represented party, thanks to the fact that her idiot attorney withdrew, and she had no idea that she was supposed to file one.
But seriously, who is the Appellate Court kidding, trial courts in this state routinely ignore or deny Motions for Articulation filed by self-represented parties. This is what gets me, the fakery that underlies this entire discussion, the pretense that some measure of due process is being observed. It is not being observed, ladies and gentlemen! The discussion of the case which the Appellate Court wrote up is just a travesty, a mockery of the judicial system and a disgrace to the judges who wrote it.
The plaintiff, Sunny Liberti, submitted her appeal to the Appellate Court based upon the fact that 1) She was denied her right to procedural due process when the custody issue was heard on the same day as her attorney's Motion to Withdraw and 2) That the trial court abused its discretion when it denied her Motion For Reconsideration.
In regard to her claim that she was denied her constitutional right to procedural due process, the Appellate Court stated that the plaintiff had failed to raise her constitutional claims before the trial court during the time of trial.
Ok, for those of you who don't know what that means, what the Appellate Court is talking about is some of what you see on TV programs. In "Law and Order" if the attorney disagreed with a ruling during a trial, he'd jump up and say, "I object." If you don't, well, you then haven't preserved your issue for appeal and therefore, supposedly, you can't bring the issue up on appeal. A Motion For Articulation, is another way of stating an objection and preserving an issue, thus making it possible to bring that issue up to the Appellate Court for review.
This concept is based upon Connecticut Practice Book Section 60-5 which states the following, "The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record or that the decision is otherwise erroneous in law. The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial."
As with everything there are exceptions to that rule which the Appellate Court mentions, "Although the plaintiff failed to raise her constitutional claims before the trial court, we acknowledge that a party may prevail on unpreserved constitutional claims pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). It is well established, however, that parties must affirmatively seek Golding review, and the moving party bears the burden of establishing an entitlement to appellate review of unpreserved constitutional claims. State v. Commins, 276 Conn. 503, 515, 886 A.2d 824 (2005). In the present case, however, the plaintiff does not seek review under Golding." No, she just asks for review under common sense because as a self-represented party she didn't know anything about Golding but she had mentioned that her constitutional rights were violated and she wanted the situation corrected. So it is not as if the Appellate Court didn't know what she was asking for. I mean, honestly, give me a break.
Then the Appellate Court denied the Plaintiff's complaint that the denial of her Motion For Reconsideration was an abuse of the trial courts discretion basically stating that the lack of a Motion For Articulation made it impossible to know what the basis of the denial was, so they were unable to rule against it.
In other words, to make a long story short, the Appellate Court affirmed the judgment, or in more understandable language, plaintiff lost.
I have to say, it is discouraging to read court decisions like this. You would think that the legal system would treat citizens in a kinder and more humane fashion, that it would stand true to its ideals of acting in a just manner. But a case like this simply makes me shake my head and sigh. Yes, this is not the end. There are remedies for a plaintiff like this, but it is going to be an uphill battle.
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