KENNETH V. CLARK v. MARY ANN CLARK
AC 35543
Appellate Court of Connecticut
Argued January 22—officially released May 27, 2014
Sheldon, Keller and Harper, Js.
(Appeal from Superior Court, judicial district of Stamford-Norwalk, Malone, J. [dissolution judgment]; Emons, J. [orders].)
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KELLER, J. The self-represented defendant, Mary Ann Clark, appeals from several decisions rendered by the trial court during postdissolution proceedings.1 The defendant claims that the trial court erred in (1) appointing a new guardian ad litem for the two minor children of the marriage and ordering the parties to equally share in paying the fees owed to the prior guardian ad litem; (2) modifying prior postdissolution orders delineating how and when the plaintiff, Kenneth V. Clark, is permitted access to the health and academic records of the parties’ children; (3) ‘‘forc[ing]’’ her to sign written authorizations affording the plaintiff access to medical and educational material related to the children; and (4) vacating what the defendant claims was an automatically stayed access order pending her appeal.2 We dismiss the appeal as it relates to the first claim raised by the defendant and, with regard to the remaining claims raised by the defendant, we affirm the judgment of the trial court.
The parties were divorced on August 18, 2009, but various disputes have continued, unabated, involving the filing of hundreds of postjudgment motions and eight appeals.3 This court’s decision in Clark v. Clark, 127 Conn. App. 148, 150–51, 13 A.3d 682, cert. denied, 301 Conn. 914, 19 A.3d 1260 (2011), sets forth some of the facts and procedural history relevant to this appeal. ‘‘The plaintiff commenced this marital dissolution action in June, 2006. Following a trial, the court, by memorandum of decision filed August 18, 2009, dissolved the parties’ marriage. The parties have two minor children, one of whom has special needs. The court awarded sole custody of the parties’ two children to the defendant and ordered the plaintiff to pay the defendant unallocated alimony and child support in the amount of $5000 per month. The court ordered, inter alia, that the plaintiff maintain health insurance for the children at his expense so long as it was available through his employer . . . . The court also ordered the parties to list for sale their marital home in Greenwich and another property they owned in Boca Raton, Florida . . . . The net proceeds of the sales, if any, were to be divided 65 percent to the defendant and 35 percent to the plaintiff. . . . The court ordered that . . . the parties would share equally the obligation to pay the fees of the attorney for the minor children . . . and the fees of the guardian ad litem . . . to be paid from the proceeds of the sale of the parties’ real estate prior to the parties receiving their respective shares. The plaintiff’s attorney, the defendant’s former attorney and the attorney for the minor child each hold mortgages on one or both of the properties to secure payment of their fees.’’4 (Footnotes omitted.)
The dissolution judgment did not afford the plaintiff a right to visitation, but included orders that the plaintiff
On April 4, 2013, the parties appeared before the trial court, Emons, J. The plaintiff was represented by Attorney Kevin Collins and the defendant was selfrepresented. Also present were Attorney Sandra P. Lax, counsel for the minor children, and Attorney Dori-Ellen Feltman, guardian ad litem for the children. The hearing began with the defendant reporting to the court that the parties and the attorneys were ‘‘having meetings,’’ and that they would report back to the court after they finished.6 The same day, the court resumed the hearing and inquired if anything had been resolved as a result of the meetings between the parties and counsel. Feltman began by advising the court of the need to clarify certain court orders, stating, ‘‘I think it’s important to clarify the current court orders. I think that there’s some misunderstanding between the parties as to what or what is not allowed in terms of [the plaintiff’s] contact with the children.’’
Feltman indicated that the plaintiff had not seen the children for quite some time, but she did not believe that there were any court orders in place preventing him from contacting the children in any way. She then mentioned a court order from Judge Shay, which she indicated was issued at a time when the older child was applying to boarding schools, that ordered the plaintiff not to contact the school being considered and not to interfere ‘‘so that the process in boarding school gets started.’’ She did not, however, ‘‘take that to mean that at the present time, [the plaintiff] doesn’t have the right to contact the schools for purposes of checking
The defendant then indicated to the court that there was no problem with the plaintiff getting information, that she was already providing the plaintiff with information from the schools and health providers, and that there had never been a disruption in his receipt of that information.9 When the plaintiff’s counsel requested that the defendant, as sole custodian, be ordered to sign release authorizations, the defendant expressed a willingness to sign so that the plaintiff’s counsel could contact providers directly, stating, ‘‘I’ve already gotten authorizations. I’ve got contact sheets with names and numbers, and they’re expecting your call.’’ The plaintiff’s counsel then responded, ‘‘Mr. Clark’s call,’’ to which the defendant replied, ‘‘I can also add that to it, but . . . .’’ The court then indicated, ‘‘No, hold on. Mrs. Clark, I don’t know what it is that you have. I’m going to order that you sign authorizations for [the plaintiff] and/or his attorney to contact all therapists that are involved, all schools, all health providers, anyone who is providing . . . the [attorney for minor children], the [guardian ad litem] and anyone who is providing services to the boys.’’ Feltman offered to draft the release authorizations.
The defendant expressed reservations about the order and raised an unrelated concern about the plaintiff’s prior access to one former provider that resulted in a payment issue and the ultimate loss of that provider. She also raised an unrelated concern that insurance reimbursements directed to the plaintiff for the children’s medical bills were not being forwarded to her, although she had advanced payment to the providers for many of the bills. The court indicated that this issue was not properly before it, but reassured the defendant by making it clear to the plaintiff that he must ‘‘do everything with regard to the payments and the billing on the up and up.’’
At this point in the proceeding, Feltman informed the court that she had not been officially retained by the parties as guardian ad litem for the children and that there had been no court order with respect to her
On April 5, 2013, the defendant filed this appeal from the court’s orders that she pay one half of Feltman’s $7500 retainer fee and that she sign release authorizations allowing the plaintiff to obtain information regarding the children directly from their schools, therapists, and other health care providers.
On April 11, 2013, the parties, the plaintiff’s counsel, Feltman and Attorney Louise Truax, on behalf of Lax, the attorney for the minor children, who was unable to be present, appeared before the court. The court indicated that it had ‘‘sua sponte called this meeting today.’’ The court began by indicating its concern about the likelihood of funding for Feltman’s service as the guardian ad litem, and vacated Feltman’s appointment. Feltman was replaced with Attorney Jill Plancher of Connecticut Legal Services as guardian ad litem for the limited purpose of communicating between the parties and a mental health professional, Dr. Sidney Horowitz, whom the court indicated would be seeing both children in order to determine the feasibility of reunification with the plaintiff and to provide a study to the court. Feltman then indicated to the court that she had prepared release authorizations for the defendant to sign pursuant to the court’s order during the prior hearing on April 4, 2013. The defendant indicated that release authorizations already were in place, and the court ordered her to print them and bring them back after a recess. The plaintiff’s counsel next advised the court that an appeal had been filed after the April 4, 2013 hearing, but that Feltman ‘‘has done work on this matter. I think that she probably intends to file an affidavit of fees for her services thus far . . . .’’ The court responded: ‘‘I have no problem with that. We’ll straighten that out.’’ The court then noted: ‘‘The appeal stays only the order that [the defendant] pay half of the fees for Attorney Feltman. . . . So, I don’t think much is stayed in light of that appeal.’’
The defendant then argued to the court that she believed that her appeal of the April 4, 2013 orders also stayed the court’s order to provide release authorizations to the plaintiff, but the court disputed her position, indicating, ‘‘[i]t may be on appeal but it’s not subject to the same type of stay that the other order might be. . . . I will entertain a motion to terminate the stay if there is one on that issue; I don’t think there is one.’’
The plaintiff’s counsel and Feltman then indicated to the court a concern that the defendant had instructed
The court then asked the defendant whether she had any reason to believe that the plaintiff could not communicate directly with the schools, therapists or treating doctors. The defendant indicated that it was her belief that the plaintiff could not contact anyone at the schools and that the schools had been relying on Judge Shay’s prior order, which had been provided to them. The court then stated, ‘‘[The August 8, 2011] order no longer exists. I am now changing the order, I am modifying the order to provide [the plaintiff] with immediate access to the [older son’s] [s]chool, any school that the younger son goes to, any and all therapists and anyone related to the health, education and welfare of both children.’’ After the defendant indicated that she objected to the plaintiff directly contacting the school, as there had been a problem in the past, the court stated, ‘‘I am now changing and modifying that order. I am going to give [the plaintiff] complete and thorough access to all schools, all treaters, all therapists, for any and all reason.’’
After the court indicated that it would provide the plaintiff with a copy of a transcript, the court reminded the defendant that it soon expected to receive the signed release authorizations that had been discussed previously in the hearing. The following colloquy then occurred between the defendant, Feltman, and the
‘‘[The Defendant]: [The signed release authorizations] don’t have a bearing now because you’ve created the order which negates the need.
‘‘[Feltman]: I do have the authorizations prepared, Your Honor.
‘‘The Court: Are you prepared to sign them, Mrs. Clark?
‘‘[The Defendant]: You don’t need it; you gave him the order.
‘‘The Court: Mrs. Clark, are you prepared to sign—
‘‘[The Defendant]: I have to see them before I can say that I can.
‘‘The Court: Fine. Take a look at them, please. Take a look at them, please.
‘‘[The Defendant]: Why are they necessary if the orders—
‘‘The Court: Ma’am, take a look at them and come back to this court and tell me, please, whether or not you will sign them.
‘‘[Feltman]: Your Honor, the authorizations are necessary because, as [the defendant] has legal custody, the health care providers require them. I spoke to the therapist about that. He wants this authorization because [the defendant] has sole legal custody.
‘‘The Court: Are you going—I want you to take a look at them and report back to the court that you either will or will not sign them. If you do not sign them I want to know why.
‘‘[The Defendant]: Okay.’’
The court then ordered that no one was to leave until the defendant either provided the plaintiff with signed release authorizations or provided an explanation to the court as to why she was refusing to sign such authorizations. Further discussion then ensued during which the defendant again expressed concern about health insurance reimbursements not being forwarded to her by the plaintiff and about who would pay for copies that the plaintiff received. The court resolved those concerns by again reminding the defendant that the issue of reimbursements was not before the court and by advising her that the plaintiff was responsible for paying for his own copies. The court then indicated, ‘‘What we are doing is modifying Judge Shay’s order to give [the plaintiff] access to all information regarding health, education and welfare. That means all schools, all providers, all mental health providers.’’ The defendant again insisted that she had provided the plaintiff with all information to date. The court stated, ‘‘And I’m not contesting whether he’s received copies. Now, he does not have to go through you, he can go directly on
No further discussions concerning the release authorizations took place on April 11, 2013. The defendant admits that she signed the authorizations, but claims that she was forced to do so. On April 15, 2013, the defendant amended her appeal to challenge the court’s April 11, 2013 order that she sign the release authorizations despite the stay that she claims was created by her appeal from the April 4, 2013 access order, and to challenge the order that Horowitz conduct an evaluation. Additional facts and procedural history will be set forth as necessary.
I
First, the defendant claims that the trial court erred in (1) appointing Feltman as guardian ad litem and (2) ordering that the parties equally share the cost of her fees, amounting to $3000, without first having reviewed the parties’ financial affidavits. We will address each aspect of the claim in turn.
The facts underlying this claim are as follows. At the April 11, 2013 hearing, the court vacated Feltman’s appointment because it was concerned about the likelihood that she would not receive payment for her work as guardian ad litem. The court replaced Feltman with a legal aid attorney, and did not discuss payment of the new guardian ad litem’s fees. After the court was advised that Feltman might be submitting an affidavit for fees that were based on the work she had performed to date, the court indicated that it would address the issue of what fees she might be owed for her work prior to her removal by indicating, ‘‘I have no problem with that. We’ll straighten that out.’’
A
Insofar as the defendant appeals from the decision of the court to appoint Feltman as the guardian ad litem, the record reflects that the court vacated that order. As the trial court already has granted the defendant the relief she is seeking on appeal, an order vacating Feltman’s appointment, we dismiss as moot the portion of the defendant’s appeal challenging Feltman’s appointment. The court’s order removing Feltman completely displaced any prior order appointing her. Accordingly, this portion of the defendant’s appeal is moot because ‘‘there is no action that we can take that can have any practical effect on the judgment under appeal.’’ Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 106, 110, 616 A.2d 798 (1992).
B
The defendant also challenges what she characterizes as an order of the court requiring her to pay one half of Feltman’s fees, which were incurred before the court vacated her appointment as guardian ad litem. Specifically, the defendant claims that on April 11, 2013, the court required the parties each to pay 50 percent of Feltman’s fees, amounting to $3000. It does not appear from the record, including the court file and the transcript of proceedings, that the court made any such order on that date. Rather, the court indicated only that it was going to address the amount of fees actually owed to Feltman at some later time.10 In vacating Feltman’s appointment, the court’s previous, ancillary order to pay her retainer, which would have covered her fees for an unspecified time period, became a nullity, and the court properly indicated that it would only consider payment for work performed prior to her removal as guardian ad litem. The defendant is unable to prevail on this claim because it is based on a mischaracterization of the record.
Additionally, if we view the claim as being based on the court’s statements made up to and including April 11, 2013, and interpret such statements as indicating that the defendant was obligated to pay Feltman a portion of her undetermined attorney’s fees incurred until that date, the claim is not based on a final judgment. In situations in which a trial court has issued an award of attorney’s fees, but has not made a finding as to the amount of the award, we have held that such an attorney’s fees award does not constitute an appealable final judgment. See McKeon v. Lennon, 131 Conn. App. 585, 611, 27 A.3d 436 (appeal from order awarding attorney’s fees dismissed for lack of final judgment because, at time appeal was filed, amount of those fees had not been conclusively determined), cert. denied, 303 Conn. 901, 31 A.3d 1178 (2011); Sullivan v. Brown, 116 Conn. App. 660, 663, 975 A.2d 1289 (same), cert. denied, 294 Conn. 914, 983 A.2d 852 (2009). Because the court, on April 11, 2013, indicated that it would determine the amount owed to Feltman at some later time, this portion of the defendant’s appeal challenging an award of fees to Feltman is dismissed for lack of a final judgment. ‘‘The lack of [a] final judgment . . . implicates the subject matter jurisdiction of this court. . . . If there is no final judgment, we cannot reach the merits of the appeal.’’ (Internal quotation marks omitted.) Morgan v. Morgan, 136 Conn. App. 371, 372, 46 A.3d 255 (2012).
II
Next, the defendant claims that the court improperly modified postdissolution orders delineating how and when the plaintiff is permitted access to his children’s health and academic records. We disagree with the
First, we note that over the course of two days of hearings, the court twice rephrased the access order after it was issued on April 4, 2013. The final order, issued on April 11, 2013, as stated by the court, gave the plaintiff ‘‘complete and thorough access to all schools, all treaters, all therapists, for any and all reason.’’ The defendant argues that this order constituted an abuse of discretion because the court modified prior orders that had been entered at the time of the dissolution by Judge Malone, and by Judge Shay on August 8, 2011, without allowing argument and ‘‘limiting’’ evidence, ‘‘despite a well documented history of the plaintiff consistently interfering with the children’s academic and medical care and other activities.’’11
‘‘[T]he standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. . . . In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . [T]o conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review.’’ (Internal quotation marks omitted.) Clark v. Clark, supra, 127 Conn. App. 153–54. ‘‘[W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record.’’ (Citation omitted; internal quotation marks omitted.) In re Jonathan M., 255 Conn. 208, 217, 764 A.2d 739 (2001).
The judgment of dissolution states: ‘‘The [defendant] shall make sure that the [plaintiff] gets copies of all school information; medical information and the children’s activities; however, the [plaintiff] shall not interfere with any of these issues whatsoever.’’ The judgment also states: ‘‘Any and all parent-teacher conferences, counseling sessions or meetings involving any aspect of the health, education or welfare of either child, information, scheduling or prepared appointments shall be provided by each parent to the other parent. Both parties may attend such events.’’ Because the judgment ordered the defendant to share information with the plaintiff on any aspects of the children’s health, education or welfare, it necessarily contemplated that the plaintiff also would be receiving such information directly. Nowhere in the dissolution judgment did the court prohibit the plaintiff from making direct contact with the children’s educational or other providers, nor
On August 8, 2011, Judge Shay conducted a hearing and issued orders concerning a dispute about where the parties’ older son would attend boarding school. We previously noted that the dispute involved only the issue of where to enroll the parties’ oldest child in private school and how much involvement the plaintiff should have in the making of the admissions decision.12 Judge Shay ordered the plaintiff not to interfere with the defendant’s process of choosing the school, as the defendant was the sole custodian, a reiteration, not a modification, of the previous orders contained in the dissolution judgment that the plaintiff not interfere with the defendant’s decisions as sole custodian. Judge Shay noted that he would regard the orders he was considering to resolve the school enrollment dispute as a clarification and not a modification of the orders contained in the judgment of dissolution.
At the hearing on April 4, 2013, Feltman indicated to the court that she did not believe that there were any court orders in place at the present time preventing the plaintiff from contacting the children’s schools for purposes of checking on their status or contacting a physician to check on their status, but she thought that the court should clarify the plaintiff’s right to access. Lax, counsel for the minor children, added that although the defendant had sole custody of the children,
The defendant argues that the court’s clarification of the plaintiff’s right of direct access to the children’s providers was an improper modification of the judgment of dissolution and Judge Shay’s August 8, 2011 orders. We do not agree. ‘‘Motions for interpretation or clarification, although not specifically described in the rules of practice, are commonly considered by trial courts and are procedurally proper. . . . There is no time restriction imposed on the filing of a motion for clarification . . . and the court [has] the power to clar-
We conclude, after a thorough review of the record and the prior orders in the file, that the court was clarifying, not modifying the prior orders contained in the dissolution judgment, and that the orders of Judge Shay with respect to the plaintiff’s noninterference with the child’s admission to a school in 2011 were moot, having served their desired purpose.14 In addition, the court was seeking to enforce the statutory right of access granted to the noncustodial plaintiff under
Although the defendant characterizes the court’s orders as a modification and, in discussing the orders at issue, the court used the word ‘‘modify’’ several times, ‘‘neither of these factors influences the actual nature of the motion or the court’s responsive ruling. It has been recognized by both this court and our Supreme Court that despite the movant’s or the trial court’s characterization of a motion, a reviewing court examines the practical effect of the responsive ruling in determining the nature of the pleading. . . . On review, we look to the substance of the relief sought by the motion and the practical effect of the trial court’s responsive ruling.’’ (Citations omitted.) Fewtrell v. Fewtrell, 87 Conn. App. 526, 532, 865 A.2d 1240 (2005). The court’s clarification order merely determined that the original judgment and any subsequent court orders had never prohibited the plaintiff from exercising the statutorily mandated right to access afforded to him by
III
The defendant’s next claim is that the court, in seeking to enforce the plaintiff’s right of access to his children’s providers, ‘‘forc[ed]’’ her to sign release authorizations, thereby giving the plaintiff access to medical and educational materials related to the parties’ children. We disagree.
The order at issue in this claim was necessitated by the fact that counsel for the plaintiff disclosed to the court that the defendant was instructing certain providers, primarily the children’s schools, not to communicate with the plaintiff, and that some of the providers, knowing that the defendant had been granted sole legal custody, were insisting on a release from her before they would have any direct contact with the plaintiff. Feltman indicated that she had seen an e-mail that the defendant wrote to the older child’s school with instructions not to speak to the plaintiff. On April 11, 2013, the court indicated to the defendant that she was not to leave the courthouse that day until she either signed release authorizations permitting the plaintiff access to the children’s providers or reported back to the court her reasons for not doing so, in which case, the court would conduct further proceedings. The defendant was given a clear option to choose not to sign the releases and return to the court for a further hearing; instead of opting to pursue the matter during a hearing, she chose to sign them and raised no further objections, although she was given the opportunity to do so.
The defendant did not return that day and object to the court’s order. Furthermore, by failing to return to the courtroom and express her reasons for refusing to sign the release authorizations and requesting an evidentiary hearing to establish her claim that the plaintiff had a history of interference with the children’s activities, the defendant did not afford the court a timely opportunity for reconsideration. The record is therefore devoid of any evidence or deliberation as to why the release authorizations should not have been signed or whether the signing of them would have prejudiced the defendant. ‘‘It is fundamental that claims of error must be distinctly raised and decided in the trial court. . . .
Furthermore, having acquiesced in the court’s first suggested option by signing the release authorizations, the defendant cannot now seek to attack the order to do so on appeal. Generally, when an appellant has expressed agreement with or has acquiesced in a court’s ruling, she cannot obtain appellate review of such ruling on appeal. See, e.g., Perugini v. Giuliano, 148 Conn. App. 861, 870–71, 89 A.3d 358 (2014) (court declines to review unpreserved claim that trial court erred in suspending deposition when at trial appellant agreed to terms of court’s order regarding suspension); Menon v. Dux, 81 Conn. App. 167, 170–71, 838 A.2d 1038 (claim unpreserved where appealing party expressly acquiesced in court’s evidentiary ruling at trial), cert. denied, 269 Conn. 913, 852 A.2d 743, cert. denied, 543 U.S. 1003, 125 S. Ct. 623, 160 L. Ed. 2d 463 (2004). Accordingly, we decline to review this unpreserved claim.
IV
The defendant’s final argument is that the trial court improperly ‘‘lifted’’ an appellate stay that was in effect with respect to its orders permitting the plaintiff to directly obtain information from the children’s academic and health providers and requiring her to sign release authorizations to facilitate that access. She claims that the court erred in lifting the stay on April 11, 2013, pursuant to
Moreover, even if we had been provided with an adequate record to review this claim, which indicated when the court vacated the stay and its reasons therefor, such a claim would not be reviewable on direct appeal. ‘‘Pursuant to
The appeal is dismissed with respect to the defendant’s claims that the court improperly appointed Feltman as guardian ad litem and improperly required the defendant to pay one half of Feltman’s fees. The judgment is affirmed in all other respects.
In this opinion the other judges concurred.