The original vision of this article was to analyze the late Justice David Borden’s most influential opinions during his tenure on the Connecticut Supreme Court. "The 10 Most Important Opinions Authored by Justice David Borden," the article would have been called had it been written. That is until I discovered that Borden penned more than 350 majority opinions for the Supreme Court, 25 or so of those opinions involving issues of family law. While re-reading some of his family law opinions, it became apparent that some of the most important decisions regarding a child’s right to be heard and to be represented by an attorney, or to be heard through a guardian ad litem, in cases involving the child’s custody, care or support, bear Borden’s byline.
The crown jewel of these decisions, Carrubba v. Moskowitz, held that as quasi-judicial officers, attorneys appointed to represent a child in the child’s parents’ divorce pursuant to C.G.S. §46b-54 enjoy absolute immunity from lawsuits premised on the AMC’s duties in his or her representative capacity, a protection that had previously been only available to guardians ad litem. After Carrubba, a parent cannot bring suit against their child’s attorney or guardian ad litem for claims purportedly arising during the attorney’s or guardian’s appointment. Borden, who passed away on Aug. 7, did not simply sit on a family law case and pronounce that AMCs and GALs are entitled to absolute immunity but, rather, Carrubba represents the culmination of more than a decade and a half of his expansion of the court’s protection of Connecticut’s children.
The Earlier Decisions—1990-98
Soon after Borden was elevated to the Supreme Court, the court handed down its decisions in Favrow v. Vargas. Borden wrote for the majority in both appeals, which (1) underscored the right of the child’s legal guardian, as opposed to a parent, to seek child support from a noncustodial parent; and (2) more importantly, championed application of the child support guidelines when he placed the child’s right to share in the obligor’s income in the determinative position over the obligor’s actual living expenses. He quoted the guidelines for the proposition that "’support obligations should not be dependent on current adult expenses because parents must adjust their expenses in accordance with the priority of their obligations, with the support of dependents being a primary obligation.’"
One year after the Supreme Court’s second decision in Favrow, the court handed down Newman v. Newman, also penned by Borden. Newman is as important a decision as there is on the issues of the independent right of a child to be supported by his or her parents, and, more important, the right of a child to be heard on issues of his or her custody, care and support. In Newman, the children were represented by an appointed attorney in a postjudgment motion to modify the father’s child support obligation. No guardian had been appointed at the time of the trial court proceedings. The trial court reduced the father’s child support obligation to zero, and the minor children appealed through their attorney. The Appellate Court dismissed the children’s appeal, reasoning that while it is a curable defect, the children may only file an appeal through their GAL or next friend. Their appointed attorney did not have the authority to appeal on the children’s behalf.
The Supreme Court granted certification, and reversed the Appellate Court’s decision. The children argued:
(1) There is ample evidence in the General Statutes to support the legislature’s intent that children should be directly heard in cases involving their custody, care or support.
(2) They were statutorily aggrieved in that they have a right to be supported by both parents, and the trial court deprived them of that right. They were classically aggrieved in that they were deprived of a property right without meaningful opportunity to be heard by counsel.
(3) Their attorney acts in an analogous manner to a GAL.
(4) The absence from the appeal of a GAL or next friend was an irregularity that should not affect the Appellate Court’s jurisdiction.
(5) There is a distinction between bringing an action through a next friend or GAL and prosecuting an appeal after a support hearing.
The Supreme Court reversed the Appellate Court decision, holding that given the posture of this case, the children’s appeal should move forward and should not have been dismissed. Borden wrote for the majority, and gave much credence to the parent’s arguments. The majority refused to extend an unfettered right to appeal to minor children whose parents are divorcing. He wrote "there are good reasons not to consider the minor children as ‘parties’ to the dissolution action or to require that they formally be made such parties. Treating the children as parties might well force them to choose sides and thus threaten to exacerbate their already heavy emotional burden, and … is inconsistent with a wise attempt to shield them as much as reasonably possible from the legal aspects of their parents’ conflicts."
He also expressed concern about "conflating" the role of the attorney for the minor children, who is an advocate for the children, with the role of the GAL, who is a representative of the child’s best interests. "As an advocate, the attorney should honor the strongly articulated preference regarding taking an appeal of a child who is old enough to express a reasonable preference; as a guardian, the attorney might decide that, despite such a child’s present wishes, the contrary course of action would be in the child’s long-term best interests."
In weighing the competing interests, the court held that there are circumstances where the children may file a direct appeal through their attorney, as opposed to through their next friend or GAL, and to require the appointment of either would elevate form over substance. Accordingly, the attorney for the children must first convince the trial court that taking an appeal is in the child’s best interests.
This theme of the competing roles of the AMC and GAL was finally resolved in Schult v. Schult, where Borden, writing for a unanimous court, held that the Rules of Professional Conduct do not require the AMC to advocate for the position of the GAL, but rather require the AMC to argue the strongly articulated preference of the child, even where it conflicts with the GAL’s opinion as to the children’s best interests.
The Later Decisions
Another Borden decision often cited is Sablosky v. Sablosky, a case in which common sense triumphed over legal form. In Sablosky, the parties’ separation agreement provided that the father had an obligation to pay for college education costs as defined. The father refused to pay, maintaining the position that the term "undergraduate college student" was ambiguous as used in this separation agreement, since it was not limited to a four-year institution of higher learning. The father was held in contempt by the trial court, and appealed. The Appellate Court agreed with the father, and reversed the trial court decision, reasoning that since the term "undergraduate college student" was ambiguous, there could be no finding of willfulness to sustain the finding of contempt.
The Supreme Court granted certification, and reversed the trial court’s decision. Writing for a unanimous court, Borden held that the fact that a term in a separation agreement may be ambiguous does not preclude a finding of willfulness, where the alleged contemnor did not seek clarification of the alleged ambiguous term. "Such ambiguity is merely one of the factors for the trial court to take into consideration in exercising its discretion regarding a finding of willfulness." While Sablosky has general application on the contract principles involving an ambiguously drafted agreement, from the family lawyer’s perspective, a recalcitrant parent or former spouse cannot avoid his or her obligations based on a perceived claim of ambiguity.
The Supreme Court’s decision in Carrubba has sparked as much controversy as any family law decision has before or since. Indeed, two of the past three legislative sessions saw proposed bills to overturn it, and but for a Republican filibuster on the last day of the 2015 session, the landscape may have been very different with regard to the manner in which children are represented in cases involving their custody, care or support. In Carrubba, a father brought suit against his child’s court-appointed attorney, and filed a two-count complaint. In his individual capacity, the father alleged that he suffered intentional infliction of emotional distress. As the next friend of his child, he alleged legal malpractice against the AMC. The AMC moved to dismiss both counts, and the trial court indeed dismissed the case. The father then appealed, and the Appellate Court affirmed, concluding that (1) the AMC was entitled to qualified quasi-judicial immunity on the father’s claim; and (2) the father lacked standing to sue in a representative capacity for his child.
The Supreme Court granted certification, and affirmed the decision of the Appellate Court. However, the Supreme Court did not agree with the scope of a AMC’s immunity, and concluded that "attorneys appointed by the court pursuant to §46b-54 are entitled to absolute, quasi-judicial immunity for actions taken during or, activities necessary to, the performance of functions that are integral to the judicial process." Relying heavily on Schult for the proposition that the "purpose of appointing counsel for the minor child in a dissolution action is to insure independent representation of this child’s interests," Borden first analyzed the concept of judicial immunity, and the limited manner in which it is applied "to promote principled and fearless decision-making by removing a judge’s fear that unsatisfied litigants may hound him with litigation charging malice or corruption. … [N]ot every category of persons is entitled to absolute immunity. … The determining factor … is whether the official was performing a function that was integral to the judicial process." The court adopted the three-prong test applied by federal courts to determine whether the official is entitled to immunity in cases brought against public officials pursuant to 42 U.S.C.A. §1983. Namely:
1) Is the official performing functions that historically have been performed by persons afforded absolute immunity?
2) What is the likelihood that the official will be harassed or intimidated by threats of personal liability?
3) What procedural safeguards are necessarily adequate to protect against improper conduct by the official?
Borden focused on the second and third prongs first, and wrote that "both … support granting absolute immunity to attorneys appointed pursuant to [C.G.S.] §46b-54." He found that not only is there a substantial likelihood that an AMC would be subject to harassment or intimidation to interfere with their doings "by a disgruntled parent, unhappy with the position advocated by the attorney for the minor child in a custody action," but that such conduct may very well deter other qualified individuals from accepting such appointments. As to the third prong, since the AMC is appointed by the court, the court has the power to remove the AMC at any time. He also points out that the AMC is still subject to the Rules of Professional Conduct. As to the test for functionality, ultimately Borden reasoned that since the AMC (1) is appointed by and serves at the discretion of the trial court; and (2) is guided by the best interests of the child in his dual role as AMC and GAL, the AMC does not have the ability to exercise complete professional independence as does a privately retained attorney, and performs a central function of the trial court.
The court then compared the analogous roles of AMC and GAL, that even though the AMC must advocate the strong preference of the child, his dual role requires that he act in a manner consistent with the child’s best interests. As such, the court reasoned, AMCs should be entitled to no lesser degree of immunity than GALs, who almost universally are given absolute immunity.
In conclusion, Borden distinguished himself on the Connecticut Supreme Court for almost two decades. During his time on the state’s high court, he wrote time and time again for majorities that protected the rights of children, as well as a child’s right to be heard in matters involving the child’s custody, care or support. His Carrubba opinion allows a child’s representatives to represent their client/ward without fear of reprisal by a disgruntled parent. More recently, the necessity that Carrubba remain the law could not be more evident than in Greenan v. Greenan, where the Appellate Court, relying on Carrubba, wrote at footnote 14:
"The plaintiff argues that the court improperly approved of the reasonableness of the fees of the attorney for the minor children given her ‘behavior in this case.’ He argues that the attorney for the minor children had solicited a bribe from him in exchange for the guardian ad litem’s recommendation of joint custody. The court declined to grant the plaintiff’s motion to remove the counsel for the minor children on the basis of this testimony, reasoning, in part, that the plaintiff did not have standing to make claims against the attorney for the minor children. His argument before us regarding inappropriate behavior does not pertain directly to the reasonableness of the fees, but rather is an attack on the continued appointment of the guardian ad litem. … [A] parent lacks standing to make claims against [a] court-appointed attorney who represented [the] interests of minor children during divorce proceedings. … Although a parent may lack standing to assert rights regarding competent representation, because the parent is not the client and the attorney has duties both to the court and to the child, the parent of course may point to ineffectiveness or other shortcomings in arguing over fees."
While Carrubba was under direct attack in the 2014 and 2015 legislative sessions, it remains an integral part of our jurisprudence protecting children, and is as important today as it was when Borden wrote the opinion in 2005.