Balaska v. Balaska
130 Conn. App. 510
Conn. App. Ct.2011Background
- Marlene Balaska and Richard Balaska, married in 1994, have two children, C (born 1994) and A (born 1997).
- Dissolution in 2007 incorporated a separation agreement granting joint legal custody and plaintiff as the primary physical custodian.
- During school year, defendant had limited after-school and midweek visitation; summer visitation and alternating weekends; no overnights initially.
- Following ongoing high-conflict postdissolution litigation, a 14-day hearing led to an order increasing defendant’s visitation with C, including overnights, while suspending visitation with A, and ordering Focus on Kids counseling.
- Guardian ad litem Michael Perzin supported increased visitation for C and testified to C’s happiness and bonding with the defendant; he endorsed overnight visits.
- Plaintiff appealed, challenging (i) modification standards, (ii) requirement of parental counseling, (iii) finding of parental alienation, and (iv) use of treatises/articles as bases for orders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Modification of visitation – threshold change in circumstances | Balaska argues no substantial change in circumstances or best interests wer e shown. | Balaska contends best interests and relationship with C support modification. | Modification proper under best interests standard; no threshold change-in-circumstances required. |
| Modification without considering present ability to parent | Balaska claims court relied on past or outdated information about parenting ability. | Court relied on current evidence of bond and positive relationship; GAL corroboration. | Court properly considered present parenting ability; not error to rely on current evidence. |
| Order requiring parental counseling without evidentiary hearing | Counseling order issued sua sponte without hearing to select therapist or allocate costs. | Plaintiff did not preserve Golding/Due Process challenge; no appellate review under Golding. | Claim not reviewed on appeal due to preservation issues. |
| Parental alienation finding and reliance on treatises/articles | Court erred in finding alienation regarding A and in citing non-exhibit treatises. | Findings were disconnected from C’s visitation and supported by record; treatises cited for context. | Alienation finding and citations not impacting C order; affirmed. |
Key Cases Cited
- Emrich v. Emrich, 127 Conn.App. 691 (Conn. App. 2011) (abuse of discretion standard in custody/visitation matters)
- Szczerkowski v. Karmelowicz, 60 Conn.App. 429 (Conn. App. 2000) (best interests standard controls modification of visitation)
- McGinty v. McGinty, 66 Conn.App. 35 (Conn. App. 2001) (modification authority under best interests framework)
- Kelly v. Kelly, 54 Conn.App. 50 (Conn. App. 1999) (modification guided by best interests; need not show threshold change)
- In re Tayquon H., 76 Conn.App. 693 (Conn. App. 2003) (guardian ad litem role and best interests analysis)
- Kiniry v. Kiniry, 299 Conn. 308 (Conn. 2010) (ambiguities resolved in favor of sustaining judgments)
- Friedman v. Meriden Orthopaedic Group, P.C., 272 Conn. 57 (Conn. 2004) (principles on evidentiary interpretation and reasonable inference)
- Feinberg v. Feinberg, 114 Conn.App. 589 (Conn. App. 2009) (present vs. outdated information in parenting ability considerations)
- O'Neill v. O'Neill, 13 Conn.App. 300 (Conn. App. 1988) (reliance on past conduct vs. current ability to parent)