Opinion
FBTCV166056320
04-27-2017
David Dubinsky v. Veronica Reich et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS
Richard E. Arnold Judge.
The defendants have filed a motion to dismiss the plaintiff's amended complaint dated September 9, 2016. The amended complaint contains six counts. Counts One, Two and Three are directed to the defendant Reich and allege: (1) legal malpractice; (2) intentional infliction of emotional distress; and (3) negligent infliction of emotional distress. Counts Four, Five and Six are brought against the defendant law firm, Bai, Pollock, Blueweiss and Mulcahey, P.C. where Attorney Reich was employed, and also allege: (1) legal malpractice; (2) intentional infliction of emotional distress; and (3) negligent infliction of emotional distress, respectively. The defendants argue that they are entitled to absolute immunity for the defendant Reich's conduct as a guardian ad litem for the plaintiff's minor child during dissolution of marriage proceedings. Further the defendants argue that the plaintiff lacks standing to assert a legal malpractice cause of action. It is the defendants' position that both of their arguments implicate the court's subject matter jurisdiction. The defendants have filed a legal memorandum of law in support of their motion. The plaintiff has objected and has filed his legal memorandum of law in opposition. Oral argument was held before the court on January 17, 2017.
This matter arises out of the defendant Reich's appointment by the superior court to serve as Guardian Ad Litem (" GAL") for the plaintiff's and his former wife's minor child in their matrimonial dissolution of marriage matter. The plaintiff alleges he entered into a " retainer agreement" with the defendants, as a party responsible for paying the GAL's service. The plaintiff agreed to pay for such services and agreed to fully cooperate with the defendant Reich, the court-appointed GAL. Plaintiff contends he did cooperate with the GAL, despite disagreeing with many of her opinions and subsequent recommendations. The plaintiff alleges that Reich breached the applicable standard of care and limited his access to his minor child. The plaintiff alleges that Reich did so " vindictively, " " intentionally" and " recklessly." The plaintiff claims that Reich, acting in her capacity as GAL, was biased against him and acted to humiliate him, causing harm to the minor child and by acting in a way that would destroy the plaintiff's relationship with his minor child, causing emotional damage to the plaintiff. The plaintiff's claims against the defendant Bai, Pollock, Blueweiss & Mulcahey, P.C. appear to be grounded on the fact that the defendant, Attorney Reich, was, and still is, employed by the defendant law firm. The plaintiff alleges that Reich was acting at all times within the scope of her employment with the defendant Bai, Pollock, Blueweiss & Mulcahey, P.C.
See Dubinsky v. Dubinsky, Superior Court, judicial district of Fairfield, Docket No. FBT-FA12-4040496-S. A dissolution of marriage after an uncontested hearing, was granted on August 9, 2013. Postjudgment proceedings continued, most recently, on March 15, 2017. An appeal is presently pending in the Appellate Court, bearing Docket No. AC 35096.
The defendants argue that Reich is entitled to absolute immunity and that the plaintiff had no attorney-client relationship with either Reich or her employer, the defendant law firm. There was no retainer agreement, as the court ordered the plaintiff to pay fees incurred by Reich for the execution of her duties in her role as the guardian ad litem for the minor child.
In his objection to the motion to dismiss, the plaintiff agrees that the superior court appointed Reich as the minor child's GAL. He agrees he signed an agreement that he would pay for Reich's services and cooperate with her. However, he disagrees that Reich is entitled to absolute immunity for reasons which the court will discuss, herein. The plaintiff has not addressed the issues surrounding his claims against the law firm of Bai, Pollock, Blueweiss & Mulcahey, P.C., as contained in Counts Four, Five and Six alleging: (1) legal malpractice; (2) intentional infliction of emotional distress; and (3) negligent infliction of emotional distress, respectively. However, the court assumes the plaintiff's arguments regarding the allegations against Reich, also apply to the defendant law firm.
I
Standard of Law
Motion to Dismiss
" A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Bacon Construction Co. v. Department of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). " A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009). " Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). The purpose of the motion is to attack the " jurisdiction of the court [by asserting] that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." Directory Assistants, Inc. v. Big Country Vein, L.P., 134 Conn.App. 415, 419, 39 A.3d 777 (2012). A motion to dismiss " admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." Gold v. Rowland, 296 Conn. 186, 200-01, 994 A.2d 106 (2010).
" [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). " [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." (Internal quotation marks omitted.) May v. Coffey, 291 Conn. 106, 113, 967 A.2d 495 (2009). " [I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Connor v. Statewide Grievance Committee, 260 Conn. 435, 443, 797 A.2d 1081 (2002). " The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any state of the proceedings, including on appeal." Peters v. Department of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005). " When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss it must consider the allegations of the complaint in their most favorable light." (Internal quotation marks omitted.) Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (1997). " Standing is the legal right to set judicial machinery in motion . . . If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause." City of Middletown v. P & G Enterprises Ltd. Part., 45 Conn.Supp. 435, 437, 718 A.2d 90 (1998).
" Although our appellate courts have not yet affirmatively decided whether absolute immunity bears upon a court's subject matter jurisdiction, our Supreme Court's decision in Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 865 A.2d 1163 (2005), supports a conclusion that it does." Jonas v. Delallo, Superior Court of Connecticut, judicial district of Fairfield, No. CV105029297S, (December 11, 2012, Bellis, J.) WL 6846396, 55 Conn.L.Rptr. 226, ." Accordingly, because the doctrine of absolute immunity shares with sovereign immunity the same purpose of protection against 'having to litigate at all, ' and because the doctrine of sovereign immunity implicates subject matter jurisdiction, this court [has joined] other Superior Courts that have held absolute immunity to be properly considered in a motion to dismiss." Id. ; citing Rioux v. Barry, Superior Court, judicial district of New Haven, Docket No. CV 05 4007375 (January 3, 2006, Licari, J.) [40 Conn.L.Rptr. 537, ], rev'd in part on other grounds, 283 Conn. 338, 927 A.2d 304 (2007); see also Kalman v. Papapietro, Superior Court, judicial district of Middlesex, Docket No. CV 04 4000984 (May 23, 2006, Aurigemma, J.) [41 Conn.L.Rptr. 426, ]; Mattera v. Sienkiewicz, Superior Court, judicial district of Hartford, Docket No. CV 05 4011301 (April 28, 2006, Tanzer, J.) [41 Conn.L.Rptr. 269, ]." Day v. Smith, Superior Court, judicial district of New Haven, Docket No. CV 07 4027999, (February 11, 2008, Bellis, J.); Perugini v. Giuliano, Superior Court, judicial district of Waterbury, CV 10 5016077, (July 26, 2012, Dooley, J.). The defendants' claims relating to the plaintiff's lack of standing and their absolute immunity arguments all implicate this court's subject matter jurisdiction.
The issue as to whether a motion to dismiss is the proper procedural vehicle by which to raise absolute immunity is not before the court. The plaintiff has waived any such claim of procedural error by responding and assenting to the court's addressing the merits of the motion. Carrubba v. Moskowitz, 274 Conn. 533, 537, 877 A.2d 773 (2005).
II
Discussion
A.
Absolute Immunity
There is no dispute by the parties that a guardian ad litem for the minor child was appointed by the court pursuant to General Statutes § 46b-54. A review of the record in Dubinsky v. Dubinsky, Superior Court, judicial district of Fairfield, Docket No. FBT-FA12-4040496-S, reveals that a motion to appoint a guardian ad litem was filed on or about September 12, 2012, and a firm appearance as guardian ad litem was filed by the defendant law firm, Bai, Pollock, Blueweiss & Mulcahey, P.C. (" law firm"). The defendant, Attorney Reich, was the member of the law firm, and acted as the court-appointed guardian ad litem.
Section 46b-54 reads as follows:
The plaintiff agrees he signed a written agreement with Reich providing that the plaintiff would pay for Reich's services and would cooperate with Reich. Thereafter, the plaintiff alleges that Reich limited his access to his minor child without any basis. The plaintiff complains that on June 23, 2012, he was arrested at his home and was charged with Risk of Injury to a Minor, General Statutes § 53-21, Assault 3rd Degree, General Statutes § 53a-61 and Disorderly Conduct, General Statutes § 53a-182 . A criminal protective order was issued by the court preventing the plaintiff from seeing the minor child, and the plaintiff was ordered to stay away from the marital home and was not to enter the home. The plaintiff claims that on August 30, 2012, the protective orders were vacated, without any findings of criminal wrongdoing. Following an evidentiary hearing conducted by the Department of Children and Families (" DCF") on January 28, 2013, the representatives of DCF additionally made a finding that certain charges against the plaintiff were unsubstantiated and that there was no basis for the criminal charges. The plaintiff claims any criminal charges and complaints to the DCF were instigated by his former wife to gain an advantageous position in the dissolution of marriage proceedings.
The court cannot confirm these claims, as the court has no access to any records or findings by the DCF and is simply stating the plaintiff's argument as contained in his complaint and legal memorandum of law. The parties have not supplied the court with any documentation regarding these matters. A review of the complaint appears to indicate that D.C.F. was investigating claims relating to neglect and child abuse. Any decisions regarding probable cause for criminal charges and continuing prosecution would be made by the State of Connecticut, as the prosecuting authority, and the court. Regarding criminal court records, the court has no access to any records that have been erased or sealed. The court, however, notes the defendants have not disputed the plaintiff's claims regarding any disposition of criminal charges or a termination of the D.C.F.'s investigation.
Despite what the plaintiff terms his " vindication, " he complains that Reich, as GAL, continued to hold these charges against the plaintiff and sided with his former wife, therefore, losing all objectivity and preventing the plaintiff from having regular contact with his minor child. The plaintiff alleges that Reich, as the GAL, breached the applicable standard of care and her responsibilities owed to the plaintiff, in that she willfully took actions contrary to the plaintiff's best interests and the minor child's best interests. The plaintiff claims that Reich's actions were intentionally vindictive because he was vindicated of all criminal charges and all claims of abuse and neglect filed with and investigated by the DCF. The plaintiff alleges actions for legal malpractice, as well as negligent and intentional infliction of emotional distress.
The defendants argue that the plaintiff's claims are without merit. The defendants state that as the GAL, Attorney Reich only made recommendations to the court based on the facts and the totality of the circumstances of the case, coupled with her own due diligence and observations. It was the role of the court to make the final determinations as to custody, visitation and parenting issues. The defendants note that on multiple occasions, the court reviewed Reich's work as the GAL. The court also reviewed and approved her fees and ordered the parties to pay her fees.
The defendants argues that defendant Reich, acting in the capacity of GAL is entitled to absolute immunity for her actions that are integral to the judicial process. Massameno v. Statewide Grievance Committee, 234 Conn. 539, 567-68, 663 A.2d 317 (1995). Our Supreme Court has held that a GAL is entitled to absolute immunity for actions that are integral to the judicial process. Carrubba v. Moskowitz, 274 Conn. 533, 545-47, 877 A.2d 773 (2005). " We traditionally have recognized that individuals who perform such functions should be accorded absolute, not qualified immunity." Id., 546, citing Massameno v. Statewide Grievance Committee, supra, 234 Conn. at 567-68, (discussing absolute immunity accorded to prosecutors by United States Supreme Court); Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 631, 749 A.2d 630 (noting that judges' law clerks are entitled to absolute immunity). The plaintiff argues the defendants cannot rely upon Carrubba v. Moskowitz, supra, 274 Conn. 533, because Reich was a court-appointed GAL and not an attorney for a minor child, as was the case in Carrubba . However, in Carrubba, our Supreme Court discusses at length, the similar duties of a GAL and an attorney for a minor child. " [W]e agree with the Appellate Court that, in the performance of this function, for the purposes of an immunity analysis, the court-appointed attorney for the minor child most closely resembles a guardian ad litem." Id., 546; Carrubba v. Moskowitz, 81 Conn.App. 382, 394, 840 A.2d 557 (2004). " [W]e recognize that such attorneys perform a hybrid role because of their simultaneous duty to function as an advocate for the child." Id. " [W]e see no reason to accord appointed attorneys for minor children a lesser level of immunity than that traditionally accorded to guardians ad litem, at least in the performance of those functions that are integral to the judicial process." Id., 547. Courts in other jurisdictions have almost unanimously accorded guardians ad litem absolute immunity for their actions that are integral to the judicial process." (Citations omitted.) Id. " Courts have reasoned that the duty of a guardian ad litem to secure the best interests of the minor children places the guardian squarely within the judicial process to accomplish that goal." (Citation omitted) (internal quotation marks omitted.) Id. " [A] grant of absolute immunity is both appropriate and necessary in order to ensure that the guardian will be able to function without the worry of possible later harassment and intimidation from dissatisfied parents." Id. " These same reasons support the extension of the same scope of immunity to attorneys appointed pursuant to § 46b-54." Id., 548. Accordingly, this court finds that guardians ad litem are entitled to absolute immunity in exercising functions relating to their role, such as testifying in court and making recommendations to the court in which said guardian acts as an actual functionary or arm of the court. Id., 544.
The plaintiff argues that even if the defendants are entitled to absolute immunity, such immunity does not shield the defendants from liability for intentional acts taken outside the scope of their duties as a GAL. Id., 544. The plaintiff notes that he specifically alleged that the defendant Reich intentionally took actions outside the scope of her role that were not in the best interests of the minor, by limiting the plaintiff's access to the minor without reason because the criminal charges were baseless and were " vacated." Therefore, Reich should have vacated her limitations on his visitation with his minor child. She also is alleged to have refused to permit co-parenting counseling and by doing so, inserted herself in a matter that primarily concerned the plaintiff and his former wife, which was only indirectly related to the minor child.
Reviewing the plaintiff's complaint in a light most favorable to the plaintiff reveals that the plaintiff basically express dissatisfaction with the manner in which the defendant carried out her court-appointed role. Moreover, the fact that some of the allegations of the complaint claim that she did so in an intentional and reckless manner rather than a merely negligent manner, does not defeat absolute immunity. Id. 548-49; see also, Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 790, 865 A.2d 1163 (2005) (noting that distinction between qualified immunity and absolute immunity is that persons protected by latter immunity are not liable for malicious " conduct and statements." While the plaintiff argues otherwise, his complaint is not grounded on any conduct by the defendant in which she acted outside the usual role of GAL. Rather she is being blamed for the way in which she considered and evaluated the following:
(1) The temperament and developmental needs of the child; (2) the capacity and the disposition of the parents to understand and meet the needs of the child; (3) any relevant and material information obtained from the child, including the informed preferences of the child; (4) the wishes of the child's parents as to custody; (5) the past and current interaction and relationship of the child with each parent, the child's siblings and any other person who may significantly affect the best interests of the child; (6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders; (7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute; (8) the ability of each parent to be actively involved in the life of the child; (9) the child's adjustment to his or her home, school and community environments; (10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided counsel or a guardian ad litem for the minor child may consider favorably a parent who voluntarily leaves the child's family home pendente lite in order to alleviate stress in the household; (11) the stability of the child's existing or proposed residences, or both; (12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child; (13) the child's cultural background; (14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child; (15) whether the child or a sibling of the child has been abused or neglected, as defined respectively in section 46b-120; and (16) whether a party satisfactorily completed participation in a parenting education program established pursuant to section 46b-69b. Counsel or a guardian ad litem for the minor child shall not be required to assign any weight to any of the factors considered.
General Statutes 46b-54(f).
The plaintiff's allegations fault the defendants for Reich's decisions and actions that, in fact, fall within the purview of a GAL acting in the best interests of the minor child. The defendants are entitled to absolute immunity. To rule otherwise would result in situation that a substantial likelihood would exist exists subjecting such attorneys to personal liability and will expose them to " sufficient harassment or intimidation to interfere with the performance of their duties." Carrubba v. Moskowitz, supra, 274 Conn. 543. The threat of litigation from a disgruntled parent, unhappy with the position advocated by the GAL " would be likely not only to interfere with the independent decision making required by this position, but may very well deter qualified individuals from accepting the appointment in the first instance." Id. Second, there exist sufficient procedural safeguards in the system to protect against improper conduct by a GAL. Id. Because the GAL is appointed by the court, the GAL " is subject to the court's discretion and may be removed by the court at any time." Id. Additionally, the GAL, just as any other attorney, " is subject to discipline for violations of the Code of Professional Conduct." Id.
In Petyan v. Ellis, 200 Conn. 243, 254-55, 510 A.2d 1337 (1986), our Supreme Court recognized that the doctrine of absolute immunity applied to the tort of intentional infliction of emotional distress, stating that " the defendant had an absolute privilege to state her reasons for the termination of the plaintiff's employment in the fact-finding supplement solicited by the employment security division, [as] she was exercising a legal right in a permissible fashion and cannot be held liable for the intentional infliction of emotional distress." (Internal quotation marks omitted.) Id., at 255; see also Perugini v. Giuliano, 148 Conn.App. 861, 872-874, 89 A.3d 358 (2014) (applies doctrine of absolute immunity to claim of negligent infliction of emotional distress).
B.
Standing
The plaintiff's amended complaint also asserts a claim for legal malpractice as against the defendants Reich and Bai, Pollock, Blueweiss & Mulcahey, P.C., apparently on the ground that the plaintiff was ordered by the court to pay for the services of Attorney Reich, the court-appointed GAL for the minor child. The defendants claim the plaintiff lacks standing to pursue this claim because the plaintiff never had an attorney-client relationship with Attorney Reich and her law firm Bai, Pollock, Blueweiss & Mulcahey, P.C.
" Standing is the legal right to set judicial machinery in motion . . . If a party is found to lack standing, the court is without subject matter jurisdiction to determine the cause." City of Middletown v. P & G Enterprises Ltd. Part., 45 Conn.Supp. 435, 437, 718 A.2d 90 (1998). " [A] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim . . . Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy . . ." (Citations omitted.) Lewis v. Slack, 110 Conn.App. 641, 643, 955 A.2d 620 (2008). " Standing . . . is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate non-justiciable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented." (Citations omitted; internal quotation marks omitted.) Id. at 643-44. " Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved . . . The fundamental test for determining aggrievement encompasses a well-settled two-fold determination: first, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the subject matter of the challenged action] . . . Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected." AvalonBay Communities, Inc. v. Town of Orange, 256 Conn. 557, 568, 775 A.2d 284 (2001).
" In general, the plaintiff in an attorney malpractice action must establish: (1) the existence of an attorney-client relationship; (2) the attorney's wrongful act or omission; (3) causation; and (4) damages. Mayer v. Biafore, Florek and O'Neill, 245 Conn. 88, 92, 713 A.2d 1267 (1998); 4 R. Mallen & J. Smith, Legal Malpractice (4th Ed. 1996) § 32.9, pp. 172-74. " A central dimension of the attorney-client relationship is the attorney's duty of entire devotion to the interest of the client . . . This obligation would be undermined were an attorney to be held liable to third parties." (Citations omitted.) (Internal quotation marks omitted.) Krawczyk v. Stingle, 208 Conn. 239, 246, 543 A.2d 733 (1988) " As a general rule, attorneys are not liable to persons other than their clients for the negligent rendering of services." Id., 244-45.
The plaintiff argues he has a colorable claim of interest in that he has asserted a relationship with the defendants through a " retainer agreement, " and that he suffered injuries and damages caused by the defendants. The plaintiff's argument fails. The plaintiff has conceded in his amended complaint that Attorney Reich, a member of Bai, Pollock, Blueweiss & Mulcahey, P.C. was appointed by the court as a GAL, relating to the plaintiff's minor child. The duty of the GAL was to act as the representative of the child's best interests. Perry v. Perry, 312 Conn. 600, 614, 95 A.3d 500 (2014).
Second, the plaintiff alleges he paid legal fees to the defendants for Attorney Reich's services as the GAL. However, the mere payment of a fee to a court-appointed GAL does not create the existence of an attorney-client relationship. " The court may order either party to pay the fees for [a] guardian ad litem pursuant to General Statutes § 46b-62, and how such expenses will be paid is within the court's discretion." Ruggiero v. Ruggiero, 76 Conn.App. 338, 347-48, 819 A.2d 864 (2003). " General Statutes § 46b-62 provides in relevant part: " If, in any proceeding under this chapter and said sections, the court appoints an attorney for a minor child, the court may order the father, mother or an intervening party, individually or in any combination, to pay the reasonable fees of the attorney . . ." Gen. Stat. 46b-62(a). The fact that the plaintiff was required to pay some or all of the GAL's fee, does not establish an attorney-client relationship with the defendants. " [A] client's subjective belief that an attorney-client relationship exists, standing alone, cannot create such a relationship or a duty of care owed by the attorney to the plaintiff . . . this is so because a plaintiff cannot unilaterally establish an attorney-client relationship, and its hindsight 'beliefs' that such a relationship existed are thus legally irrelevant." Durante v. Martinez, Superior Court, judicial district of New Haven, No. NNHCV084043410S, (July 12, 2012, Corradino, J.T.R.), quoting, Zenith Ins. Co. v. O'Connor, 148 Cal.App.4th 998, 1010, 55 Cal.Rptr.3d 911 (Ct.Ap.Cal., 2007). The GAL must be dedicated to the best interests of the minor child, not the parent, and by its very nature, the role of the GAL can conflict with the interests of a dissatisfied parent. Carrubba v. Moskowitz, supra, 274 Conn. 533.
General Statutes § 46b-62(a) reads in relevant part as follows:
The court notes that the plaintiff filed a self-representation appearance on December 12, 2016, regarding postjudgment proceedings in dissolution of marriage action. See Dubinsky v. Dubinsky, Superior Court, judicial district of Fairfield, Docket No. FBT-FA12-4040496-S. However, prior to self-representation, the plaintiff was represented by private legal counsel in his dissolution of marriage proceedings. He cannot now credibly argue that the defendants in this current matter were acting in the capacity of counsel for the plaintiff or that he " retained" the defendants to represent his interests or that he had an attorney-client relationship with the defendants. He was represented by his own counsel of choice at times relevant to this complaint. The plaintiff lacks the requisite standing to prosecute the counts relating to legal malpractice against the defendants.
In addition to this action, the plaintiff filed two additional and separate actions for legal malpractice against his former attorneys relating to his dissolution of marriage. See Dubinsky v. Riccio, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. FBT CV16 6059152S; Dubinsky v. Meyers, Breiner & Kent, LLP, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. FBT CV15 6052685S.
III
Conclusion
The court agrees with the defendants that they are entitled to absolute immunity for the defendant Reich's actions and conduct as the GAL for the plaintiff's minor child in Dubinsky v. Dubinsky, Superior Court, judicial district of Fairfield, Docket No. FBT-FA12-4040496-S. Additionally, the plaintiff lacks standing to pursue his claims of legal malpractice against the defendants. There was no attorney-client relationship between the defendants and the plaintiff. The court, therefore, grants the motion to dismiss as to all claims alleged by the plaintiff in his amended complaint.
(a) The court may appoint counsel or a guardian ad litem 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 or a guardian ad litem on its own motion, or at the request of either of the parties or of the legal guardian of any child or at the request of any child who is of sufficient age and capable of making an intelligent request. (b) Counsel or a guardian ad litem for the minor child or children may also be appointed on the motion of the court or on the request of any person enumerated in subsection (a) of this section in any case before the court when the court finds that the custody, care, education, visitation or support of a minor child is in actual controversy, provided the court may make any order regarding a matter in controversy prior to the appointment of counsel or a guardian ad litem where it finds immediate action necessary in the best interests of any child. (c) In the absence of an agreement of the parties to the appointment of counsel or a guardian ad litem for a minor child in the parties' matter and a canvassing by the court concerning the terms of such agreement, the court shall only appoint such counsel or guardian ad litem under this section when, in the court's discretion, reasonable options and efforts to resolve a dispute of the parties concerning the custody, care, education, visitation or support of a minor child have been made. (d) If the court deems the appointment of counsel or a guardian ad litem for any minor child or children to be in the best interests of the child or children, such appointment shall be made in accordance with the provisions of section 46b-12. (e) Counsel or a guardian ad litem for the minor child or children shall 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. To the extent practicable, when hearing from such counsel or guardian ad litem, the court shall permit such counsel or guardian ad litem to participate at the beginning of the matter, at the conclusion of the matter or at such other time the court deems appropriate so as to minimize legal fees incurred by the parties due to the participation of such counsel or guardian ad litem in the matter. Such counsel or guardian ad litem may be heard on a matter pertaining to a medical diagnosis or conclusion concerning a minor child made by a health care professional treating such child when (1) such counsel or guardian ad litem is in possession of a medical record or report of the treating health care professional that indicates or supports such medical diagnosis or conclusion; or (2) one or more parties have refused to cooperate in paying for or obtaining a medical record or report that contains the treating health care professional's medical diagnosis or conclusion. If the court deems it to be in the best interests of the minor child, such health care professional shall be heard on matters pertaining to the interests of any such child, including the custody, care, support, education and visitation of such child. (f) When recommending the entry of any order as provided in subsections (a) and (b) of section 46b-56, counsel or a guardian ad litem for the minor child shall consider the best interests of the child, and in doing so shall consider, but not be limited to, one or more of the following factors: (1) The temperament and developmental needs of the child; (2) the capacity and the disposition of the parents to understand and meet the needs of the child; (3) any relevant and material information obtained from the child, including the informed preferences of the child; (4) the wishes of the child's parents as to custody; (5) the past and current interaction and relationship of the child with each parent, the child's siblings and any other person who may significantly affect the best interests of the child; (6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders; (7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute; (8) the ability of each parent to be actively involved in the life of the child; (9) the child's adjustment to his or her home, school and community environments; (10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided counsel or a guardian ad litem for the minor child may consider favorably a parent who voluntarily leaves the child's family home pendente lite in order to alleviate stress in the household; (11) the stability of the child's existing or proposed residences, or both; (12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child; (13) the child's cultural background; (14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child; (15) whether the child or a sibling of the child has been abused or neglected, as defined respectively in section 46b-120; and (16) whether a party satisfactorily completed participation in a parenting education program established pursuant to section 46b-69b. Counsel or a guardian ad litem for the minor child shall not be required to assign any weight to any of the factors considered.
(a) In any proceeding seeking relief under the provisions of this chapter and sections 17b-743, 17b-744, 45a-257, 46b-1, 46b-6, 46b-301 to 46b-425, inclusive, 47-14g, 51-348a and 52-362, the court may order either spouse or, if such proceeding concerns the custody, care, education, visitation or support of a minor child, either parent to pay the reasonable attorneys fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82. If, in any proceeding under this chapter and said sections, the court appoints counsel or a guardian ad litem for a minor child, the court may order the father, mother or an intervening party, individually or in any combination, to pay the reasonable fees of such counsel or guardian ad litem or may order the payment of such counsel's or guardian ad litem's fees in whole or in part from the estate of the child . . .