CARRUBBA V. MOSKOWITZ NOT WHAT YOU THINK IT IS. PART I!

Given that Carrubba v. Moskowitz is the seminal case which put into place judicial immunity for GALs, I decided to go to civil court a few days ago, take a look at the court file, and see what documents are in it. Unfortunately, it was somewhat of a disappointment when I arrived at the clerk's office to find out that the entire file has been destroyed!  Luckily, I did continue investigating and was able to locate the information I needed on the case elsewhere. Thus, you have this article!  

As I reviewed the material on this case, one point I noted, which I found unexpected, is the fact that the case was not about GALs, but rather about Attorneys For the Minor Child (AMCs). Apparently, a decision on the one also applied directly to the other, so it gets cited in GAL cases even though it originally had to do with an AMC.

Next, I would like to be able to say that this was a case about good and evil, i.e. a virtuous family court litigant facing down the dragon lady, Emily Moskowitz, but that is not what happened in this case.  In fact, it is more accurate to state that this is a case where the father was a rather  bad character and Attorney Moskowitz was probably doing her job to defend her clients when she went a bit overboard in doing so.  But don't let me persuade you to this conclusion.  I will tell you the facts and you can then make up your own minds.

The Carrubba divorce began in February 1994 and continued on into 2000 when Paul Carrubba turned his attention to suing Attorney Emily Moskowitz.  Attorney Moskowitz was appointed as Attorney for the Minor Children on June 26, 1996 by Judge Herbert Barall another one of my favorite characters. At the time, there were two children involved Mathew who was eight and Jessica who was nine.  As is often true of abusive fathers, Mr. Carrubba soon dropped his interest in getting custody of Jessica--I mean, after all, she was just a girl--and focused in on obtaining full custody of his son, Mathew.  In terms of timeframe, the divorce was finalized in 1997, and then Paul Carrubba began to agitate for custody of his son, Mathew, around 1998.

I was somewhat puzzled to see an Attorney for the Minor Children assigned to children who are so young--basically under the age of 12, which I had thought was the magic number when it comes to kids having some level of self-determination--I would have expected Judge Barall to assign them a Guardian Ad Litem rather than an Attorney for the Minor Children.  But perhaps this had something to do with the high level of conflict in the case which meant that  the judge felt that Attorney Moskowitz required a little more leeway than average, regardless of the law.

So what do Attorney's For the Minor Children (AMCs) do?

The Court appoints AMCs under Conn. Gen. Stat. Sec. 46b-54 which states "The court may appoint counsel for any minor child or children of either or both parties at any time after the return day of a complaint under section 46b-45, if the court deems it to be in the best interests of the child or  children.  The court may appoint counsel on its own motion, or at the request of either of the parties or of the legal guardian of any child who is of sufficient age and capable of making an intelligent request."  (emphasis added)

I can only assume, then, that Judge Barall thought that both Jessica and Mathew were capable of making an "intelligent request", but they still seem to me to be pretty young to have arrived at the high level of maturity requisite for them to meet the statutory requirements for the appointment of an AMC.  

Further, according to Schult v. Schult, 241 Conn. 767, 778 (1997) "The purpose of appointing counsel for a minor child in a dissolution action is to ensure independent representation of the child's interests..."  Also, for more recent commentary from the CT Judicial Branch, there is this, "The AMC’s role is different from that of a guardian ad litem (GAL). The AMC represents the child’s legal interests and supports the child’s best interests, while the GAL represents only the child’s best interests."  The AMC participates in legal proceedings just like a regular attorney, while the GAL is largely excluded from participation in legal proceedings and has a role that is largely investigative.  

In essence, what Judge Barall did was give the children representation by an attorney who could act on a level much more independent of the parents wishes than she could have done if she were a guardian ad litem.  It is possible that he felt there were good grounds for doing that, or perhaps he was simply careless--who knows.

Ultimately, to review, at dissolution in February 1997 residential custody went to the mother with both parents having joint custody.  Nonetheless, the fireworks continued to fly post judgment with the father proceeding to go after custody of his son, Mathew, with the intention of taking him to Florida to live there permanently.  It was within the context of these custody proceedings that on November 2, 1998 Mr. Paul Carruba filed a motion to disqualify Attorney Emily Moskowitz as Attorney for the Minor Child.  

His accusations if true are rather shocking.  

According to Mr. Carrubba, "On July 8, 1998 while the Defendant's and Plaintiff's counsel were negotiating terms and conditions for returning Mathrew to live with his father, Attorney Moskowitz unleashed a barrage of insults at the Defendant, Paul Carrubba, including repeatedly calling him an "Asshole."  In addition, Paul Carrubba stated, "On August 19, 1998 while the Defendant's and Plaintiff's counsel were having discussions concerning a variety of issues Attorney Moskowitz again referred to the Defendant as an "Asshole" and a "Bastard," and [stated that] he was "killing these kids."  

Did this actually happen?  

I believe that these accusations are credible.  For one thing, at no time during the litigation over the question of whether Attorney Emily Moskowitz had immunity did Attorney Moskowitz ever deny these accusations or attempt to refute them.  In addition, Paul Carrubba's attorney who wrote up the complaint states that he was present at the time Attorney Moskowitz used this bad language and if it weren't true, I'd be surprised he would write up false accusations in a legal document.  Given the assumption that these accusations are true, this is unconscionable behavior on the part of an attorney, and most particularly on the part of an attorney for the minor child.  

The charges were sufficiently disturbing that it is clear that at least once Judge, Herbert Gruendel, would rather have not heard it.  As he stated in a rather threatening way to Attorney Dan Kramer, Mr. Paul Carrubba's attorney, "I caution Mr. Kramer that since motions are to be decided on the basis of evidence rather than on the basis of assertions and the pleading, that future pleadings in that regard do not need to be as complete or as graphic as the one that you filed in this case."  

On the other hand, given the way Attorney Moskowitz describes Mr. Paul Carrubba's actions, perhaps he tested her patience rather dreadfully.  Her objection to Mr. Carrubba's motion to disqualify is full of accusations which you can take or leave.  As we all know, attorneys in defense of their reputations and money sources can be remarkably eloquent and imaginative in their own defense.  Personally, I'd rather not go into detail trying to figure out the veracity of the twists and turns of her argument. 

However, what I consider most persuasive in terms of indicating that Mr. Carrubba had a dark side is the fact that he eventually took his son, Mathew by then 12 years old, all the way from Connecticut to Florida permanently separating the child from both his mother and sister.  What I found particularly saddening were the several motions the mother submitted to the Court in 2000 and 2001 stating, "Defendant (father) refuses to allow Plaintiff mother reasonable telephone access to her son, or visitation access to him."  

That's just nasty.  So, Paul Carrubba was no saint, clearly.  

In terms of the progress of Paul Carrubba's complaint, first Mr. Carrubba filed this motion to disqualify which was rejected by the family court and didn't get him anywhere.  Then he filed the same complaint in civil court on October 2, 2000 before Judge Robert J. Hale where it was finally dismissed in a memorandum of decision issued on February 21, 2002.  It then went on to Appellate Court and ultimately to the CT Supreme Court which, in July 2005, upheld the original civil court decision which was that GALs and AMCs have qualified quasi-judicial immunity, and expanded the level of immunity to that of absolute quasi-judicial immunity "for actions taken during or, activities necessary to, the performance of functions that are integral to the judicial process."  This is the decision which the current Bill #5505 seeks to overturn. 

I am not sure how necessary or integral to the judicial process it is to repeatedly call a father an "asshole", but I will leave that up to you to decide!