Nowacki v. Nowacki
2013 WL 3804835
Conn. App. Ct.2013Background
- In 2005, the dissolution judgment awarded joint legal and physical custody with a 1 week on/1 week off schedule.
- On Feb 28, 2011, plaintiff moved for modification seeking sole custody with limited supervised visitation for defendant.
- Guardian ad litem was appointed in March 2011 to protect the children's interests.
- Defendant, incarcerated for contempt, faced videoconference arrangements for hearings on April 15 and May 10, 2011; writs facilitated participation.
- May 19, 2011 interim hearing addressed whether the children were unsafe in the father’s custody; subpoenas for witnesses were denied.
- Trial commenced June 27–28, 2011; defendant arrived late, motions to disqualify the judge were denied, and he then left the courtroom; the court later granted plaintiff sole custody with limited supervised visitation for the daughter.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Subpoena denial at May 19 hearing | subpoenas were irrelevant to the limited interim issue; witnesses will be available at full hearing | denial violated right to present his defense and witness testimony | denial proper; witnesses pertained to broader issue, not the limited interim hearing |
| Right to appear in person vs videoconference | Practice Book allows incarcerated appearances by audiovisual means; no prejudice shown | court violated his right to physical presence | no constitutional violation; no prejudice established |
| Court’s delegation of power to a nonjudicial agency | claim not supported by authorities and is inadequately briefed | court improperly transferred authority to a non-judicial body | claim deemed abandoned; no review |
| Validity of Practice Book §§ 25-60 and 25-60A | issue unreviewable due to lack of trial court ruling | these provisions exceed jurisdiction and lacked public hearings | unreviewable; no ruling; advisory opinions not rendered |
Key Cases Cited
- Cole v. Planning & Zoning Commission, 40 Conn. App. 501 (1996) (absent defense at trial defeats claim of denial of right to present evidence)
- Kennedy v. Kennedy, 109 Conn. App. 591 (2008) (mootness where child reaches majority in custody appeals)
- Grimm v. Grimm, 276 Conn. 377 (2005) (claims raised for the first time in a reply brief are generally unreviewable)
- Capel v. Plymouth Rock Assurance Corp., 141 Conn. App. 699 (2013) (advisory opinions avoided when issues not properly argued on appeal)