PELLEGRINO, J.
The defendant, David Zilkha, appeals from the judgment of the trial court, dispersing escrow money held from settlement funds received from his former employer to pay postjudgment fees to the guardian ad litem, the attorney for the minor children, and a custody evaluator.
The following facts and procedural history are relevant to our resolution of the defendant's claims. The plaintiff, Karen Zilkha, and the defendant were married on June 7, 1998. The plaintiff brought an action for dissolution of the parties' marriage, and a judgment of dissolution was rendered on May 31, 2005, incorporating by reference a separation agreement and a stipulation of the parties.
On November 14, 2008, the plaintiff filed a motion to open and set aside the dissolution judgment. The plaintiff's motion alleged that, during the pendency of the dissolution action, the defendant fraudulently failed to disclose a claim that he had against his former employer.
On April 24, 2009, the plaintiff filed an ex parte motion for a temporary injunction to "[restrain] [the defendant] from moving, or in any way transferring the money set to be transferred to him on April 30, 2009. . . ." The court denied the ex parte motion, but held a hearing on April 28, 2009, to permit all parties to be heard. At this hearing, the court granted the plaintiff's motion, ordering that $250,000
On February 3, 2010, and February 4, 2010, the court held an Oneglia hearing in
On September 10, 2012, the attorney for the minor children filed a postjudgment motion for fees and retainers in order to compel the payment of present and future fees for himself, as well as for the guardian ad litem and the custody evaluator.
The defendant first claims that the court lacked authority to distribute the escrow funds because the judgment of dissolution had not been opened. The defendant argues that the court's ruling at the conclusion of the Oneglia hearing only permitted the plaintiff to conduct limited discovery, following which, the court would consider the plaintiff's motion to open. The guardian ad litem argues in response that the record is insufficient for this court to review the defendant's claim. Additionally, she contends that, because the defendant did not appeal or file an amended appeal from the court's subsequent order on December 4, 2013, which awarded attorney's fees from the escrow account to two other individuals, he waived this claim and rendered his appeal moot on this issue.
We begin by setting forth the applicable standard of review. The defendant in this case presents a situation in which he claims the court acted without authority. "[O]ur review of challenges to the authority of the court to act is plenary." Hogan v. Lagosz, 147 Conn.App. 418, 433, 84 A.3d 434 (2013); see also Brody v. Brody, 153 Conn.App. 625, 630, 103 A.3d 981, cert. denied, 315 Conn. 910, 105 A.3d 901 (2014).
"Pursuant to General Statutes § 52-212a, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . . An exception to the four month limitation applies, however, if a party can show, inter alia, that the judgment was obtained by fraud. . . .
"A marital judgment based upon a stipulation may be opened if the stipulation, and thus the judgment, was obtained by fraud." (Citation omitted; internal quotation marks omitted.) Reville v. Reville, 312 Conn. 428, 441, 93 A.3d 1076
We conclude that the court lacked authority to order distributions from the escrow account to pay the attorney for the minor children, the guardian ad litem, and the custody evaluator. General Statutes § 46b-81 (a) provides in relevant part: "At the time of entering a decree . . . dissolving a marriage . . . pursuant to a complaint under section 46b-45, the Superior Court may assign to either spouse all or any part of the estate of the other spouse." The court can redistribute assets pursuant to a motion to open. See General Statutes § 52-212a; see also Dougherty v. Dougherty, 109 Conn.App. 33, 38-39, 950 A.2d 592 (2008). Nevertheless, "[u]ntil a motion to open has been granted, the earlier judgment is unaffected. . . ." Bruno v. Bruno, 146 Conn.App. 214, 230, 76 A.3d 725 (2013). In this case, although the court was free to order that the defendant pay some or all of the fees to the attorney for the minor children, guardian ad litem and custody evaluator, it lacked the authority to direct that these payments be made from the escrowed funds. We are aware of no authority, and the guardian ad litem has cited none, that a court is authorized to choose which of a party's assets must be used to pay that party's share of fees for service rendered by a guardian ad litem, attorney for the minor children, or other individuals.
The defendant next claims that the court improperly prohibited him from testifying as to his observations regarding the guardian ad litem's alleged improper conduct.
The following additional facts are relevant to our resolution of this claim. In the defendant's direct examination during the hearing on the attorney for the minor children's motion, on July 17, 2013, the defendant's counsel asked the defendant for his opinion on what the guardian ad litem had done that he thought was improper since January, 2012. The defendant responded that "[the guardian ad litem] could have done more. . . ." The court then interjected and stated: "No, no. Not could have. [The question] is what did she do that was improper." The defendant responded: "I believe, it's been improper not to do more to get me back with my children. I mean, essentially, she's done nothing to get me back with my children." After this statement by the defendant, the court explained at length the roles of the guardian ad litem and the attorney for the minor children, specifically articulating that they do not work for the parties, they work for the court and the children, respectively. The court further explained that "just because you believe [that] they are not advocating for you to exercise your visitation rights with your children, that's not improper conduct. And I just want that on the record. And it's important that litigants understand that. . . . [I]f it bears repeating, then I will repeat it. They are not advocates for you and your position. I know how heartfelt your position is. I know you want to have a relationship with your children. I understand that. I get it. But they're here to assist your children, and they make the call that they think is in the children's best interest, and if they do anything other than that, and if they trample on your toes, too bad."
The court then stated that the original question by the defendant's counsel asking for the defendant's opinion on the guardian ad litem's alleged improper conduct was "out of line" and "ludicrous." On the record, the court explained the proper way in which to produce such evidence: "[T]o ask a witness who, obviously, has a bias toward his position—and who is very frustrated with a ten year old case, as I would be too—to ask him to opine and to say that this attorney did something improper I think that that is really pushing the boundaries. . . . [W]e all should know better than that and that's improper. But there's a proper way to get that. So if your client feels that for some reason that [the guardian ad litem] or [the attorney for the minor children] for whatever reason did not . . . comply with the terms or if they were part and parcel of that agreement, then you know the proper way to do it. But this [is] totally improper and it's unacceptable and it's not right. I will not tolerate it."
On September 23, 2013, the defendant filed a corrected motion for an articulation regarding the court's conclusions at the July 17, 2013 hearing concerning the alleged improper conduct of the guardian ad litem and the court's reference to the guardian ad litem as a "consummate professional."
We first set forth the applicable standard of review. "Unless an evidentiary ruling involves a clear misconception of the law, the [t]rial court has broad discretion in ruling on the admissibility . . . of evidence. . . . The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion. . . . We will make every reasonable presumption in favor of upholding the trial court's ruling. . . ." (Internal quotation marks omitted.) Dinan v. Marchand, 279 Conn. 558, 567, 903 A.2d 201 (2006). "The principal distinction between lay and expert witnesses is that the former is restricted, with limited exceptions, to providing factual testimony, while the latter is permitted to testify as to his or her opinion." Kronovitter v. Doyle, 135 Conn.App. 157, 164, 41 A.3d 1108 (2012). "Because of the wide range of matters on which lay witnesses are permitted to give their opinion, the admissibility of such evidence rests in the sound discretion of the trial court, and the exercise of that discretion, unless abused, will not constitute reversible error." (Internal quotation marks omitted.) State v. Morocho, 93 Conn.App. 205, 223, 888 A.2d 164, cert. denied, 277 Conn. 915, 895 A.2d 792 (2006).
Here, the trial court properly precluded the defendant's counsel from eliciting testimony regarding the defendant's opinion as to the propriety of the conduct carried out by the guardian ad litem. Section 7-1 of the Connecticut Code of Evidence provides: "If a witness is not testifying as an expert, the witness may not testify in the form of an opinion, unless the opinion is rationally based on the perception of the witness and is helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue." The defendant, as a lay witness, did not have any requisite level of special knowledge regarding the duties of a guardian ad litem. Moreover, his statement that the guardian ad litem "could have done more" because "she's done nothing to get me back with my children" is not helpful to garner a clear understanding of a determination of a fact in issue. The defendant's statements regarding the guardian ad litem's conduct were not factual in nature; they were his opinion that the guardian ad litem had not done enough to advocate his interest. Yet, the role for the guardian ad litem is to "be heard on all matters pertaining to the interests of any child, including the custody, care, support, education and visitation of the child, so long as the court deems such representation to be in the best interests of the child. . . ." (Emphasis added.) General Statutes § 46b-54 (e). The role of the guardian ad litem is not, as the court correctly pointed out, to be an advocate for the defendant. This is
The judgment is reversed only as to the disbursement of funds from the escrow account and that portion of the order is vacated. The judgment is affirmed in all other respects.
In this opinion the other judges concurred.
We disagree with the guardian ad litem that the defendant was obligated to appeal or file an amended appeal from other escrow distributions in order to withstand a mootness challenge to this appeal. "The test for determining mootness of an appeal is whether there is any practical relief this court can grant the appellant. . . . [I]t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. . . . If no practical relief can be afforded to the parties, the appeal must be dismissed." (Internal quotation marks omitted.) Taylor v. Zoning Board of Appeals, 71 Conn.App. 43, 46, 800 A.2d 641 (2002). The defendant arguably, having not appealed the December 4, 2013 order, does not challenge the award of fees to Israel and Smith to be paid from the escrow account. This does not affect whether the defendant can obtain practical relief in his appeal from the November 19, 2013 judgment of the court as discussed in this opinion.