LIBERTI V. LIBERTI, A.C. 33006

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.

PAULA J. FISH v. ANDREW J. FISH, JR. (SC 17500)

The emotional and sexual abuse of children always seems difficult for Family Court in Connecticut to handle.  We saw that in the Wiegand/Wilkerson case.  Recently, this issue came up for me again.  While doing research on other matters, I came across the case of Paula J. Fish v. Andrew J. Fish, Jr.  Let me know what you think of this case 

I understand that when I summarize a Court's Memorandum of Decision, the entire piece of writing could be a work of fiction, but on face value, this is what we have.  In the words of the Court, here is a rundown on the story. 

The Parties in this case were married on June 21, 1985 and then had a child, a little girl, in 1989.  The marriage lasted for around eleven years or so and then was dissolved on March 5, 1996. Both parents shared joint custody including an evenly divided parenting arrangement.

After the divorce there was ongoing tension between the Parties, ie. arguments over tax issues, over tuition for the Child's private school, as well as child support--your general money issues. 

The child was often caught between the warring parents and the Plaintiff Mother constantly asked the child for a detailed report of what happened when she visited the Father. So it is not surprising that in June, 2001, Attorney Emily J. Moskowitz was appointed as the Guardian Ad Litem for the little girl later taking on the additional role of Attorney for the Minor Child. 

Then in May 2002, the Defendant Father filed a Motion to Modify custody in which he requested sole custody of the child with supervised visitation for the Plaintiff. 

This is where I get to the point of saying, you've got to be kidding me.  This is how the Court describes this man.  He is a person who "failed to provide a clean and appropriate home for the child" one who "demonstrated inappropriate behavior of a sexual nature in the child's presence", i.e. walked around with an open bathrobe exposing his genitals to her.  Not only that, he "kept a dangerous dog in his home." 

Ok, now I get why the Plaintiff was asking her daughter for detailed information regarding her visits to the Father's house.  If I were this child's mother, I would be going out of my mind knowing what was going on and not being able to do anything to stop it. 

Perhaps someone can tell me why the Defendant Father's inappropriate, if not criminal, behavior was reported in a Supreme Court Decision and there is no mention that this Father was arrested for child abuse for doing this to his daughter.  If the Defendant Father went to a local park and did this he would be in jail for indecent exposure, but guess it is OK if you do it at home to your daughter.  Please, someone, explain why this is not a criminal act.  All I can say is that my heart goes out to the Mother. 

Ok, back to Dad and what he has been up to.  The Memorandum of Decision continues with the Court stating that at the Defendant's house, the child "has been exposed to a filthy and unkept environment, with multiple cats, cat feces and urine odors throughout the home."  Aren't we talking another criminal offense here?  Aren't people who keep multiple cats and don't know how to care for them ordinarily brought up on charges of animal abuse? 

But let's not stop, there is more.  According to the Court, when the Defendant got angry, he would lose control of himself, hit himself, and run up and down stairs.  Furthermore, he drank wine every day which made him extremely unpredictable.  And the Court stated, "The child was adamant in her desire not to stay at the defendant's house overnight and expressed no desire to live with him." 

Meanwhile, in 2002, when the proceedings in the Trial Court were underway, the Plaintiff Mother had just had a double mastectomy and was undergoing chemotherapy.  Please, if I had this to deal with I would have a lot more than just cancer!  But getting down to it, come on, THIS is the time when the Defendant Father decides he is going to Court to take the child away from the mother.  Wow, what a guy!  No wonder his daughter doesn't want to have anything to do with him. 

And guess what!  Who do you think the Defendant hired as his attorney?  Our friend, Attorney Louis Kiefer who represented Mr. Tom Wilkinson in the Wiegand/Wilkinson case.  Ahh!  Ain't it nice to see old friends again!

The final determination of the Trial Court which was affirmed upon appeal by the Appellate Court was an arrangement in which the Plaintiff Mother, Paula J. Fish and the child's paternal aunt, Barbara Husaluk, shared joint custody, and the child's primary residence was in Aspen, Colorado with the Aunt. The Defendant Father was to be included in all major decision making, as was Plaintiff Mother, with the paternal aunt, Barbara Husaluk, making the final decisions.  Both the Plaintiff, the child, the Attorney For the Minor Child, and the Custody Evaluator, Dr. James C. Black agreed that this was the best arrangement.

So does the Defendant Father just shut up and let everyone be happy?  No, on he goes to the Supreme Court.  After all, litigating is so much fun! 

On the Supreme Court level, the Court reversed the decision and remanded the case to the Trial Court for further proceedings based upon a legal technicality.  The Supreme Court's decision is sixty seven pages long, and I have to admit, I didn't have the patience to plow through the entire discussion.  But this is the gist of what I understood. 

As far as Supreme Court was concerned, the primary question at hand was what burden of proof did the Plaintiff have to meet in establishing that the Defendant was not a fit parent so as to justify denying him parental rights.  Did it have to be the standard of clear and convincing evidence as determined in Roth v. Weston, 259 Conn. 202, 234-235 or did it merely have to be that of the best interests of the child standard as delineated in Connecticut General Statutes 46b-56b.  

In this case, since custody was handed over to a third party who was not a parent, the Supreme Court determined that the standard must be one of the fair preponderance of the evidence.  Since both the Trial Court and the Appellate Courts in this case wrongly based their determinations on the "best interests of the child" standard, rather than the standard of "Fair Preponderance of the Evidence", their decisions were overturned.

Ok, I'm a joker, does anyone know if there is a difference between preponderance of the evidence versus fair preponderance of the evidence?  Does anybody care?

Do you get what I am trying to say?  We have a suffering child here, who is being abused by a drunken, emotionally and sexually abusive father, whose mother is dying, and all the judicial system is able to do is argue over the standard of evidence for sixty seven pages?  Give me a break! 

And I want to stress for you how seriously the Supreme Court took this situation.  At first the case was only going to be argued before a panel of judges, but then the Court decided to give far more weight to the case by having the case heard en banc thus adding on two additional Justices.  Not only that, not only did you have counsel for the Plaintiff and the Defendant arguing the case, three additional Attorneys--Attorney Campbell D. Barrett, Attorney Steven R. Dembo, and Attorney Justine Rakich-Kelly filed a brief for the Children's Law Center as amicus curiae (Friends of the Court) regarding this case. 

So there is no doubt that, judicially speaking, the Court worked hard to address the concerns raised by this case.  Still, despite all these resources, I cannot help but think that justice was not done, not for the Mother, and certainly not for her little girl.  They should have been protected and defended, but they weren't, by a system that was fully operational, but, simply put, maintained a focus that was sadly misplaced.  In other words, I'm not saying that the judges were evil or ill intentioned, or that the attorneys were heartless and bad people, I'm just saying that the legal system, because it is structured the way it is structured at this time, caught these people up in a judicial process that extraordinarily failed to address the pressing needs of the victims in this case.  In a day and age where we have skyping, we have cell phones, we have cars, and modern medicine, and live in what we hope is a reasonably efficient democracy, failures of this kind are no longer acceptable.

As a final note, the Supreme Court's decision in this case came out in 2006.  This  means that by the time the Supreme Court arrived at its decision the child was 17 and could pretty much decide for herself where she was going to stay.  This litigation, which lasted around four years, must have cost thousands and thousands of dollars of taxpayer money and have cost this mother and her little girl untold suffering. Talking about legal abuse!

And who is laughing?  Who was able to abuse and harass his dying ex-wife and get the whole legal system churning away on nonsense for years at the taxpayers expense?  Guess Who?  Our Defendant Father--that's who. 

According to the Court, "both parties had put their own interests before the child's well-being."  Really.  Both Parents?  And mother was bad because of her attempts to make the child feel guilty about visiting the father.  Oh, really?  And the parents "battled".  I wonder why.  I mean, God forbid Mom ask Dad to put his pants on when his daughter is in the house. 

This father didn't want to pay child support, didn't want to pay for airline tickets (so the daughter could visit her Aunt in Colorado), didn't want to pay for school tuition, didn't want to pay for taxes, but he did want to pay multiple thousands of dollars to harass and bully his dying ex wife and child through the Court System for years and years?  And the Court System let him do it?

The way it looks to me, the Court System is so unwilling to hold an abusive Father accountable for his behavior, no matter how reprehensible or criminal, that such a Father can pretty much exploit the judicial system, manipulate it at will, use it as his own personal playground to torture his child and ex wife in until he gets bored and decides to move on.  That isn't right.

Thoughts anyone?

TAUCK V. TAUCK

Now I thought my divorce was bad, but little did I know!  

For a really, truly bad divorce take a look at Tauck v. Tauck.  In 2007 when this case was at its height, it had taken up to 82 days of trial and counting, plus 100 witnesses, and costs had added up to $11 million and counting.  How could that be possible?  

Well, I know how that could be possible.  Think corrupt courts in Connecticut, the theme I began this blog with last August 2010. 

The Superior Court Judge involved in this case was Judge Holly Abery-Wetstone--not exactly the brightest bulb among the bunch.  

Then there is Peter Tauck, Nancy Tauck and their four minor children plus all the lawyers sucking up all the money for all they are worth.  What a truly sad scenario!  

Again, I do not take sides here between the parties in the case, because how is anyone supposed to know the truth from a distance.  No matter how it sounds, you can never tell what was actually going on, and good lawyers are capable of blackballing the most innocent party and cleanscrubbing the most guilty, and you would never be able to tell what had actually happened.  That's how law in practiced in Connecticut where no one gives a hoot about the truth.

But one thing I do know is that you've got to be crazy throwing out major sums of money like this.  Of course, if you are used to having large sums of money, you might not even notice.  Apparently, Mr. Tauck has a fortune of up to $53 million arising from his family's luxury travel agencies, plus a house in Westport, and a home at Lake Placid.  Still, honestly!  

Each side in this case accused the other side of wrong doing.  Each accused the other side of drug addiction and suicide attempts. On his side, Peter Tauck was accused of having child pornography on his laptop computer, molesting two of the parties' children, and raping his wife.  On her side, Nancy Tauck was accused of severe alcohol abuse and being a neglectful mother.  

As the case stacked up in 2007, it looked as though Peter Tauck was doing better than Nancy Tauck in the court battle.  Apparently, evidence showed that Nancy Tauck may have set up her husband by downloading pornography into the laptop while he was in Tahiti.  Also, there was, apparently, no evidence substantiating the accusation that he sexually abused the children, and if you have made accusations you can't substantiate, you are in trouble.  It's better to keep silent.  

In contrast, Peter was scoring points against Nancy.  For example, she failed an alcohol test administered at the court house and was accused of not attending the AA meetings regularly that she was supposed to attend.  Furthermore, the parenting supervisors who were in charge when Nancy Tauck spent time with her kids stated that she didn't put her children to bed at night and didn't wake them up in the morning, leaving the parenting supervisors to do that job as well as other parenting tasks.  

During the divorce period, the couple were doing what is called "bird nesting" where the children remain in the home and each parent comes in and out of the home on an equal basis.  Apparently, the couple had video cameras throughout the house to make sure they were under observation at all times.  

This case was so overwhelming that at one hearing during the litigation, the judge had to contend with 41 outstanding motions in the case on a single day.  When one of the attorneys said, this case isn't over until the Judge has filed a decision, Judge Abery-Wetstone responded, "I can't write a decision until you all stop filing motions!"  

I just picture all those folks surrounded by multiple piles of paper costing multiple millions of dollars.  It is just mind boggling.  But, nonetheless, nothing to be surprised about.  After all, we are talking Connecticut, aren't we!

Best guess is Peter won and Nancy lost.  Does that mean that justice was done?  No one will ever know but Peter and Nancy in the dark hours when they each sit alone with themselves.  Do I say both are wrong like so many attorneys who support abusers?  No I don't.  One is likely wrong, but with all the dust that has been kicked up I just don't know who. What we do know,without doubt, is that if anyone lost this case, it was the children who lost.

WILLIAM JENKS V. JANE JENKS 232 Conn. 750 (1995)

If you are going to court to complain about coercion and duress, you will find very few Connecticut cases with which to go to Court and argue your position. However, there is one case that the majority of individuals cite in a case of duress and coercion. It is Jenks v. Jenks.

This case, very interestingly enough, went all the way to the Supreme Court, and that's saying something. I've been in trial court for a number of years and just even getting to the appellate court with something takes tremendous effort. Getting to the Supreme Court--well, that's a miracle.

Ok. So this is what happened. In this case, the marriage between the parties was dissolved and within the four months grace period, the defendant moved to reopen the judgment based upon the grounds that she had been under extreme emotional distress and duress when she agreed to it. The trial court agreed to reopen the case, modified the division of property and awarded the defendant nine years of alimony.

The Plaintiff appealed the judgment and the appeals court ruled in his favor. The appeals court decided that there was an insufficient nexus between the Plaintiff's alleged coercion and duress and the Defendant's decision to agree to the judgment, i.e. there was "no evidence of any duress remotely contemporaneous with the execution of the stipulated agreement".

The Defendant then took her case to the Supreme Court which reinstated the judgment of the trial court. The Supreme Court determined that it was clear that the Plaintiff had abused the Defendant throughout the marriage and also that the testimony of witnesses and experts indicated a direct connection between the Plaintiff's abusive behavior and Defendant's agreement to a stipulated judgment that wasn't favorable to her.

You'd think that over the years there would be tons of cases like this, but it says a great deal about what is going on in Connecticut Family Court that we only have one. If you are interested in knowing Mrs. Jenks attorney, it was Steven H. Levy, Esq. of Torrington. If you are interested in consulting with him, you can look him up online or call him at: 860-866-4637. You gotta hand it to the guy. He must have done something right!