Opinion
The plaintiff, Lori J. Hibbard,
The following facts and procedural history are relevant to our disposition of thе plaintiffs appeal. The parties were married on October 11, 2003, and have one minor child who was bom August 4, 2005. On September 12, 2007, the court dissolved the parties’ marriage and incorporated into its judgment the provisions of a marital settlement agreement. The agreement provided, inter alia, that the parties would share joint legal custody of their daughter, whose primary residence would be with the plaintiff. The parties further stipulated that the defendant would be entitled to two scheduled visits per week “or such other times as the parties may agree.”
Commencing in July, 2008, both parties began filing postjudgment motions. The plaintiff alleged that the defendant failed to comply with the court’s financial orders, and the defendant alleged that the plaintiff failed to comply with the court’s visitation orders. Since the date of the dissolution, the parties have filed approximately thirty postjudgment motions. Initially, most of the disputes were resolved by agreement. As time passed, however, the parties became increasingly contentious over the issue of the defendant’s parenting time with their daughter.
There are four motions at issue in this appeal. On May 26, 2011, the defendant filed a motion to find the plaintiff in contempt
The court held a hearing on the parties’ motions on June 9, 15 and 24, 2011. On June 27, 2011, the court issued its memorandum of decision. The court first stated that it had reviewed all of the pleadings and orders in the file and that it had considered applicable case law and statutes, particularly General Statutes §§ 46b-56 (c) and 46b-87. The court further noted that it had observed the demeanor and attitude of the witnesses and had assessed their credibility. The court then proceeded to make its findings and conclusions. The court found that the plaintiff had failed to establish any justification for her unilateral suspension of visits between their child and the defendant scheduled for May 18, 19, 21 and 22, 2011, and, accordingly, it found her in contempt of the court’s visitation orders.
Further, the court determined that “the enduring and passionate battle between the parents renders the original joint custody arrangement no longer workable and hence not in the child’s best interest . . . .” The court referred to the plaintiffs “strategy of pursuing the elimination of [the] defendant from their daughter’s life” and concluded that leaving the child with the plaintiff would result in “the eventual loss to the child of her father.” The court concluded by granting the defendant’s motion to modify the custody order and awarded sole custody of the minor child to the defendant.
I
The plaintiffs first claim is that the court improperly admitted into evidence the comprehensive evaluation report рrepared by Matthew Walker, a family relations counselor. She argues that the report contained numerous prejudicial hearsay statements that should have been redacted prior to its consideration by the
On November 29,2010, the court, Shluger, J., referred this matter to the family relations division for a comprehensive evaluation report. Walker completed the report on June 8, 2011. The next day, which was the first day of the scheduled hearing on the partiеs’ outstanding motions, the plaintiffs attorney stated on the record that he had just received the report and that he had contemplated requesting a continuance of the hearing. He represented, however, that he had conferred with his client and that the plaintiff was comfortable in proceeding with the hearing at that time.
When Walker subsequently was called by the defendant as a witness, the defendant’s attorney offered the report as a full exhibit. The court inquired if the plaintiff objected to its admission. The plaintiffs attorney responded: “I would objеct. There’s numerous hearsay statements contained in the document.” The court overruled the objection: “That’s fairly customary in a family relations [counselor’s] report. So I’m going to overrule the objection. . . . You will, of course, have occasion to cross-examine Mr. Walker.” On appeal, the plaintiff argues that the admission of the report with the unre-dacted hearsay statements of various individuals was prejudicial because “the court expressly relied on several of the hearsay statements in its June 27,2011 memorandum of decision.”
In support of her position, the plaintiff cites Stewart v. Stewart,
Stewart is inapposite to the present case. In a footnote, the court in Stewart stated that a recent amendment to the rules of practice; Practice Book (1978) § 479; permitted the admission of case study reports if the author was available for cross-examination, but that the amendment had not been in effect at the time the case was heard. Stewart v. Stewart, supra,
The trial court in the present case requested a comprehensive evaluation report from the family services division. As such, the report was admissible pursuant to Prаctice Book § 25-60 provided that the family relations counselor who authored it was available for cross-examination. Walker was called as a witness and was
II
The plaintiffs next claim is that the court abused its discretion by finding her in contempt because it should have concluded that her noncompliance with the court’s visitation orders wаs justified under the circumstances. The court found that the plaintiff failed to deliver their daughter for parenting time with the defendant on May 18,19, 21 and 22,2011, which were court-ordered visitation dates. The plaintiff testified at the hearing that her refusal to comply was justified by a reasonable fear for the safety of their daughter. The court concluded that she failed to establish any justification for her unilateral suspension of those visits and found her in contempt of the prior court orders.
“A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in failing to find that the actions or inactions of the [plaintiff] were in contempt of a court order. ... To constitute contempt, a party’s conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt.” (Internal quotation marks omitted.) Gina M. G. v. William C.,
With these principles in mind, we turn to the trial court’s decision in the present case. Following the hearing on the parties’ motions, the court issued a comprehensive twenty page memorandum of decision in which it set forth the history of the case, the prior modifications of visitation orders, the evidence submitted by the parties with respect to the pending motions and the court’s factual findings and conclusions. At the outset, the court noted that it was familiar with the parties and their prior disputes because it had entered the last two orders in the file that addressed visitation with the minor child. The court also expressly stated, as we previously have discussed, that it had observed the demeanor and attitude of all of the witnesses and had assessed their credibility.
At the hearing, the plaintiff did not deny that she failed to deliver their minor child for visitation with the defendant on May 18, 19, 21 and 22, 2011, and that the orders in effect at that time entitled the defendant to parenting time with their daughter on those days. Instead, the plaintiff claimed that she refused to permit the visitation because their daughter, on or about May 6, 2011, had informed her that a man at the defendant’s home inappropriately touched her during the previous Wednesday visit with the defendant. The plaintiff testified that she was afraid that their daughter’s “safety was being compromised”
The court found that the plaintiffs stated concern did not justify her unilateral suspension of their daughter’s visits with the defendant. The court gave the following reasons for that determination: (1) the plaintiff had made prior allegations, which were unsubstantiated, claiming that the defendant slapped their daughter in the face and placed her in physical danger; (2) the plaintiff previously sought and was granted restrictions on visitation when she claimed another friend of the defendant upset the child by taking pictures of her during one of the scheduled visits; (3) the plaintiffs repeated allegations that the child was afraid of the defendant and refused to visit with him were contradicted by the child’s therapist, the investigative social worker from the department, a worker at the child’s day care facility, Walker, and the credible testimony of the defendant;
“The trial court’s findings аre binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses.” (Internal quotation marks omitted.) Gina M. G. v. William C., supra,
III
The plaintiffs final claim is that the court abused its discretion by modifying the custody order and awarding sole custody of the minor child tо the defendant. Specifically, she argues that the court improperly modified the order without finding a substantial change in circumstances and that it erroneously determined that the modification was in the best interests of the child. We disagree.
Section 46b-56 (a) provides the court with authority to make or modify any proper order regarding the custody, care, education, visitation and support of minor children in dissolution actions. Section 46b-56 (b) provides in relevant part that in making or modifying any such order, “the rights and responsibilities of both parents shall be considеred and the court shall enter orders accordingly that serve the best interests of the child and provide the child with the active and consistent involvement of both parents commensurate with their abilities and interests. . . .” In considering the best interests of- the child, the court may consider one or more of the factors set forth in § 46b-56 (c). Those factors include, inter alia, “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 appropriatе, including compliance with any court orders”; General Statutes § 46b-56 (c) (6); and “any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute . . . .” General Statutes § 46b-56 (c) (7). That statute also provides that “[t]he court is not required to assign any weight to any of the factors that it considers.” General Statutes § 46b-56 (c).
“Before a court may modify a custody order, it must find that there has been a material change in circumstance since the prior order of the court, but the ultimate test is the best interests of the child. . . . The solе question is whether the trial court abused its discretion in deciding that the best interests of the child would be served by [the modification].” (Internal quotation marks omitted.) Gillespie v. Jenkins,
“The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the fаcts. ... As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case .... [W]hether the best interests of the [child] dictate [s] a change ... is left to the broad discretion of the trial court. ... A mere difference of opinion or judgment cannot justify the intervention of this court. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference. . . . When the factual basis of the trial court’s decision is challenged on appeal, the role of this court is to determine whether the facts set out in . . . the decision . . . are clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to
We apply these princiрles to the present case in our review of the trial court’s findings and conclusions with respect to its modification of the custody order that resulted in an award of sole custody of the minor child to the defendant. We begin with the plaintiffs claim that the court modified custody without making a finding of a substantial change in circumstances. She argues that the court considered only the best interests of the child in reaching its determination and failed to make the requisite finding that there had been a material change in circumstances since the prior custody order. See Kelly v. Kelly,
In the court’s June 27,2011 memorandum of decision, it found that “the enduring and passionate battle between the parents renders the original joint custody arrangement no longer workable . . . .” This determination was made following the court’s summary of the history of the case, its statement that it had reviewed all of the pleadings and orders in the file, and its factual findings regarding the plaintiffs efforts to thwart the defendant’s visitation with their daughter in connection with the motion for contempt. The joint custody order as agreed to at the time of dissolution was premised on the assumption that the defendant would enjoy certain visitation rights with their daughter. Unfortunately, as time passed, disputes over visitation became more frequent and more contentious, as evidenced by the numerous postjudgment motions for contempt and modification filed by the parties in this case.
Although the court did not expressly state that changed circumstances warranted the modification of the custody order, it did expressly state that the original joint custody order was unworkable. The court also expressly stated that it made its determinations pursuant to the standard enunciated in § 46b-56 (c). The decision referenced evidence that demonstrated the parties’ inability to communicate or to reach agreement with respect to issues involving their daughter. For example, the court noted that the plaintiff terminated their daughter’s therapy without consulting the defendant when the child’s therapist proposed including the defendant in that therapy. Further, the court commented that the plaintiff unilaterally terminated their daughter’s four year relationship with her day care provider because a day care worker had communicated information about the child to the child’s stepmother, the defendant’s current wife.
We conclude that the plaintiffs claim fails for the reasons set forth in Lambert v. Donahue, 78 Conn. App. 493,
The plaintiff next argues that the court improperly found that awarding sole custody to the defendant was in the bеst interests of the child. In her brief, the plaintiff stresses that the child had lived with her since birth and that the court acknowledged that she had met their daughter’s “material and intellectual needs.” The plaintiff also references testimony of the child’s guardian ad litem that a transfer of custody would result in a period of “serious readjustment” for the child.
The court was not unmindful of these considerations. In its memorandum of decision, the court stated: “Because the child has lived with [the] plaintiff since birth, the court does not take lightly the prospect of changing her primary residencе at this point.” Nevertheless, the corut determined that such a modification to the custody order was in the best interests of the child because “[c]learly, in light of the above discussion regarding contempt, [the] plaintiff demonstrates a real deficiency in her ‘willingness and ability ... to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any corut orders,’ to quote § 46b-56 (c).” The court referenced the plaintiffs “strategy of pursuing the elimination of [the] defendant from their daughter’s life” and concluded that the result of leaving the child with the plaintiff would be “the eventual loss to the child of her father.”
As a consequence of this situation, the court noted that the minor child was beginning to evidence a pattern of expressing complaints of pain, which led to an unusual number of visits to her physician’s office or a hospital emergency room. The child also manifested signs of distress and guilt when preparing for visitations: “[S]he indicated that she will sometimes say that she does not wish to visit her father, as that makes her mothеr happy.” The court expressed the concern, as was voiced by the child’s therapist, that the plaintiff had a propensity to remove their daughter from a setting in which a neutral observer might conclude that the defendant was not as bad a parent as she portrayed him to be. As examples, the court referred to the plaintiff abruptly terminating both their daughter’s therapy sessions and the four year arrangement with the child’s day care provider.
There is support in our case law for transferring custody of a minor child when the custodial parent has engaged in conduct designed to alienate the child from the noncustodial parent. In Eisenlohr v. Eisenlohr, supra,
As this court repeatedly has emphasized, we defer to the trial court’s assessment of the credibility of the witnesses and the weight to afford their testimony. See Malave v. Ortiz,
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
The plaintiff is now known as Lori J. Bielecki.
The court appointed a guardian ad litem for the minor child on August 6, 2009.
The defendant filed a motion for contempt on May 23, 2011, which was essentially identical to the motion filed on May 26, 2011. The May 23, 2011 motion subsequently was withdrawn.
The May 26, 2011 motion alleged that, in addition to the four days in May, 2011, the plaintiff further failed to deliver the minor child for scheduled visitation on thirty previous occasions. During the hearing on the motion, however, the parties indicated that only the four days in May were at issue before the court. Accordingly, the court addressed only those four days in its memorandum of decision.
The court considered the second motion to be an exact copy of the first motion and, therefore, “redundant.”
A fortiori, the court denied the plaintiffs motions to modify the judgment to suspend unsupervised visitation with the defendant.
The plaintiffs attorney did cross-examine Walkеr at the hearing.
The court concluded that “[the plaintiffs] premise that the child is afraid of [the defendant] and does not desire contact with him is baseless.”
The plaintiff takes issue with the court’s statement that it found her account of the alleged touching to be doubtful because she failed to notify the defendant directly about the incident. According to the court, it would have been logical and appropriate for the plaintiff to telephone the defendant about the alleged touching so that he could take immediate measures to рrotect their daughter. The plaintiff claims that this finding is clearly erroneous because it was undisputed that she did contact the defendant by way of a text message. This one inaccuracy does not undermine our confidence in the court’s fact-finding process and we are not persuaded that it was harmful. See Lambert v. Donahue,
The defendant testified that if he was awarded physical custody of their daughter, he faithfully would deliver their child for visitation or allow the plaintiff to pick up the child for visitation in accordance with any visitation schedule ordered by the court.