KYLE S. v. JAYNE K. JAYNE K. v. KYLE S.
(AC 39969)
Connecticut Appellate Court
Argued December 7, 2017—officially released June 5, 2018
DiPentima, C. J., and Lavine and Bishop, Js.
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Syllabus
The plaintiff in the first action, K, sought a dissolution of his marriage to the defendant in that action, J. The trial court rendered judgment dissolving the marriage, and the dissolution judgment incorporated the parties’ written agreement, which provided the parties with joint custody of thеir minor child, T, and that T‘s primary residence would be with K. In February, 2016, J filed an application for an emergency ex parte order of custody pursuant to statute (
- K could not prevail on his claim that J had failed to meet her burden of proof with respect to her applications for relief from abuse and for an emergency ex parte order of custody: the trial court properly issued the restraining order to include protection for both J and T, as J presented evidence of K‘s altercation with his fiancee and his threat to harm J and, thus, there was sufficient evidence before the court to prove that a continuous threat of present physical pain or physical injury to J existed as required by
§ 46b-15 , and it was within the court‘s discretion to make such order it deemed appropriate for the protection of J, the appliсant, and T, her dependent child; moreover, there was sufficient evidence to support the court‘s determination that an immediate and present risk of physical danger or psychological harm to T existed at the time of J‘s application for an emergency ex parte order of custody pursuant to§ 46b-56f , as the court heard evidence that K had engaged in a physical altercation with his fiancee while T was present, T‘s teacher expressed concern about T‘s behavior, C‘s reports expressed concern about incidents of violence at K‘s home, and T‘s babysitter testified that T became scared, upset, and hurt when asked about going to K‘s home. - K failed to establish his claim that the court committed plain error in admitting into evidence T‘s mental health records, whiсh was based on his claim that certain waivers executed by the parties were invalid due the existence of a conflict; the claimed error of the trial court was neither readily discernible on its face nor obvious in the sense of not debatable, as the parties, as the parents and de facto guardians of T, agreed that the court should review T‘s mental health reports, noted the importance of protecting T‘s privacy with respect to the records and agreed it would be beneficial for the court to review them, K did not provide any authority requiring the court to appoint a guardian ad litem or showing that the parties’ agreement to allow the court to use the records was improper, and K‘s argument that the parties were disqualified from waiving T‘s privilege becаuse the parties were custody combatants, and that waiver was done to advance each party‘s own interest instead of for T‘s benefit was speculative and, therefore, unpersuasive.
- The court‘s order regarding K‘s parenting time and custody of T constituted an impermissible delegation of judicial authority to C; although it was permissible for the court to seek advice and to accept recommendations from a nonjudicial entity, the court, which expressly stated that it would rely on C with respect to issues involving T and noted that C would dictate the scope of K‘s contact with T in a therapeutic setting, improperly granted decision-making authority to C by removing itself from the process and permitting C to decide the nature and scope of K‘s contact with T.
Argued December 7, 2017—officially released June 5, 2018
Procedural History
Action, in the first case, for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of New Britain, where the court, Dolan, J., rendered judgment dissolving the marriage and granting certain other relief; thereafter, the defendant in the first case filed a motion to modify custody and an application for an emergency ex parte order of custody, and an application, in a second case, for relief from abuse; subsequently, the court, Carbonneau, J., granted the application for ex parte order of custody in the first case, and granted the application for relief from abuse in the second case as to the applicant and minor child; thereafter, the matters were consolidated for a hearing before Carbonneau, J.; orders extending the order of temporary custody; subsequently, the cоurt, Carbonneau, J., rendered judgments modifying custody in the first case and extending the temporary restraining order only as to the applicant in the second case, from which the plaintiff in the first case and respondent in the second case appealed to this court. Reversed in part; further proceedings.
Allen G. Palmer, with whom, on the brief, was Logan A. Carducci, for the appellant (plaintiff in the first case, respondent in the second case).
Opinion
DiPENTIMA,
The following facts and procedural history are relevant to our discussion. In 2008, Kyle S. initiated a dissolution proceeding. On May 2, 2008, the parties agreed to the appointment of Katarzyna Maluszewski as guardian ad litem for T, the minor child of the parties, whose date of birth is in May, 2004 . On September 8, 2009, Jayne K. filed an application for relief from abuse against Kyle S., and the court issued an ex parte restraining order. See Jayne S. v. Kyle S., 116 Conn. App. 690, 690-91, 978 A.2d 94 (2009). Jayne K. alleged that a previous restraining order had been issued against Kyle S. as a result of a January, 2008 incident when he had kicked Jayne K., breaking her rib. Id., 691. The September, 2008 application sought a restraining order after Jayne K. had claimed, inter alia, that Kyle S. left a voicemail in which he had threatened “to kill” her. Id. Following a hearing, the court, Hon. Bernard D. Gaffney, judge trial referee, extended the restraining order for a period of six months, from October 3, 2008, to April 3, 2009. Id., 691-92.
On April 22, 2009, the court, Dolan, J., rendered a judgment dissolving the parties’ marriage. It found that the parties had been married in July, 2006, and had one child, T. The court incorporated the parties’ written agreement dated April 17, 2009, into the dissolution judgment. The agreement prоvided that the parties would have joint custody of T, with his primary residence with Kyle S. The agreement also provided that Jayne K. would not pay child support and neither party would pay or receive alimony. In 2011, Maluszewski accepted $3000 as a full and final settlement of her fees as the guardian ad litem for T.2
For the period between February, 2013, and Febru-ary, 2016, the parties filed no motions, and the dissolution/custody file remained static. On February 11,
At this time, Jayne K., in a separate file, also filed an application for relief from abuse against Kyle S., pursuant to
That day, the court, Carbonneau, J., granted Jayne K.‘s ex parte applications and awarded the relief sought without holding a hearing. Sрecifically, the court
Four days of hearings regarding Jayne K.‘s applications and motion commenced on July 25, 2016. Jayne K. testified that in February, 2016, T‘s teacher had emailed her that T had exhibited “goofy behaviors” at school. She also received a call from Kyle S.‘s fiancee, informing Jayne K. about the events of Kyle S.‘s arrest.6
Jayne K. also indicated that T had started treatment with Warren Corson, a psychologist, on June 9, 2016. According to Jayne K., T benefitted greatly from this therapy. She requested sole custody of T. The court continued its tempоrary order of sole custody in favor of Jayne K.
At the next hearing date, on August 12, 2016, the court ordered that the parties would share joint legal custody of T, with primary residence with Jayne K. The court ordered that Kyle S. could see T in therapeutic sessions with Corson, and ordered other contact as permitted by Jayne K., including access via electronic means. It further ordered that the therapy sessions with Corson were to continue until no longer needed or beneficial. At the September 23, 2016 hearing, following the agreement of the parties, the court admitted into evidence a mental health report from Corson regarding T.
At the December 9, 2016 hearing, the court noted that the restraining order was scheduled to expire on February 19, 2017.7 Again with the agreement of the parties, the court admitted intо evidence an updated report of T‘s progress with Corson. Following Kyle S.‘s testimony, and closing arguments from the parties, the court orally rendered its decision.
The court found Jayne K.‘s testimony credible and that she had sustained her burden of proof under
The court then considered the issue of Kyle S.‘s contact with T. The court stated that it would rely on Corson to dictate the scope of Kyle S.‘s conduct with T in a therapeutic setting. The court specifically noted: “So . . . I‘m not extending any aspect of the temporary restraining order to [T] but, in the other file, the custody file, I am restricting that contact so that the mental health professional can be in charge.” (Emphasis added.) This appeal followed. Additional facts will be set forth as necessary.
I
Kyle S. first claims that Jayne K. failed to meet her burden of proof with respect to her application for relief from abuse, her application for an emergency ex parte order of custody and her motion to modify custody. Specifically, Kyle S. argues that neither the application for a restraining order nor the evidence at the hearings
“The 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. . . . Likewise, [a] prayer for injunctive relief is addressed to the sound discretion of the court and the court‘s ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion. . . .
“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. . . . Appellate review of a trial court‘s findings of fact is governed by the clearly erroneous standard of review. . . . 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 support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citations omitted; internal quotation marks omitted.) Putman v. Kennedy, 104 Conn. App. 26, 31, 932 A.2d 434 (2007), cert. denied, 285 Conn. 909, 940 A.2d 809 (2008); see also Jordan M. v. Darric M., 168 Conn. App. 314, 318, 146 A.3d 1041, cert. denied, 324 Conn. 902, 151 A.3d 1287 (2016).
A
We first address Kyle S.‘s argument that there was insufficient evidence to support the granting of Jayne K.‘s application for a restraining order pursuant to
At the hearing, Jayne K. testified that she had spoken with Kyle S.‘s fiancee following the incident resulting in Kyle S.‘s arrest. The fiancee told “her side of what happened while [T] was present in [Kyle S.‘s] care.” Jayne K. also testified that T
The court granted the application for a restraining order on the bases of Jayne K.‘s credible testimony, all of the evidence, and the incident that had occurred between Kyle S. and his fiancee in February, 2016, that led to this arrest. We previously have recognized that a single incident, coupled with the findings that the subject of the restraining order presently poses a continuous threat, may satisfy the requirement of
B
Next, we address Kyle S.‘s argument that there was insufficient evidence to support the February 11, 2016 granting of Jayne K.‘s application for an emergency ex parte оrder of custody pursuant to
We recite again our standard of review. “The proper standard of proof in a trial on an order of temporary custody is the normal civil standard of a fair preponderance of the evidence. . . . We note that [a]ppellate review of a trial court‘s findings of fact is governed by the clearly erroneous standard of review. The trial court‘s findings are binding upon this court unless
As we previously noted, the court heard evidence that Kyle S. engaged in a physical altercation with his fiancee while T was present. Following this incident, the parties exchanged text messages, where Jayne K. indicated that she had spoken with T‘s teacher. The teacher indicated that T was having a “hard time” and that the teacher was “worried” about him. According to Corson‘s August 9, 2016 report, T was “very concerned” about the “incidents of violence” at Kyle S.‘s home. Courtney Harris, T‘s babysitter, testified that T became scared, upset and hurt when asked about going to Kyle S.‘s home. According to Harris, T‘s demeanor and behavior improved from February, 2016 through July, 2016, when T was living with Jayne K.
In short, there was evidence to support the court‘s determination that an immediate and present risk of physical dangеr or psychological harm to T existed at the time of Jayne K.‘s application pursuant to
II
Kyle S. next claims that the court committed plain error by admitting T‘s mental health reports into evidence following the parties’ waiver of T‘s privileged mental health records. Specifically, he contends that the parties’ waiver was invalid because each had a conflict “based on his or her own self-interest to advance his or her own case.” We conclude that Kyle S. failed to establish plain error in this case.
The following additional facts are necessary for our discussion. At the outset of the August 12, 2016 hearing, Kyle S.‘s сounsel noted that T had continued his treatment with Corson, that Kyle S. had the opportunity to meet with and speak to Corson, and that it was appropriate for the court to hear Corson‘s suggestions regarding the familial dynamic. Counsel did note one area of concern: “One of the things, though, that I wanted to make sure of, with no [guardian ad litem] in, is that, you know, from my client‘s perspective, he wanted to proceed cautiously as far as we don‘t want this be an absolute and open-ended waiver of the [psychologist]/client privilege that [T] has with Dr. Corson. But we do think that the court‘s going to want some continuing input from him.”
After discussing other matters, the court returned to the issue of T‘s privileged communications with Corson. “There is no guardian in this case. Ordinarily it is the guardian that holds the privilege for the minor child. Right now, as I understand it, thе parents, as the co-equal guardians of the child, would hold that privilege . . . .” The court clarified that previously there had been joint custody, but presently a temporary order of custody in favor of Jayne K. was in effect. As a prophylactic measure, the court stated: “I will allow
“It is well established that the plain error doctrine, codified at Practice Book § 60-5, is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved [and nonconstitutional in nature], are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party. [T]he plain error doctrine . . . is not . . . a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court‘s judgment . . . for reasons of policy. . . . In addition, the plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. . . .
We conclude that Kyle S. has failed to establish the first prong of the plain error doctrine. See State v. Bialowas, 178 Conn. App. 179, 190, 174 A.3d 853 (2017) (defendant bore burden of establishing entitlement to relief under plain error doctrine). Specifically, the claimed error of the trial court was neither readily discernible on its face nor obvious in the sense of not debatable. The parties, parents and de facto guardians of T, agreed that the court should review T‘s mental health reports. Both noted the importance of protecting T‘s privacy with respect to these records, and agreed it would be beneficial for the court to review Corson‘s reports. Kyle S. has not provided us with any authority requiring the court in this case to appoint a guardian ad litem, or showing that the parties’ agreement to the use of the records by the court was improper.15 Instead, he merely speculates that, due to their status as “custody combatants,” the parties’ waiver was done in “his or her own self-interest tо advance his or her own case” and thus the parties are disqualified from waiving T‘s privilege. Additionally, he assumes that T‘s “treatment records were not offered in his best interests, [as] no [minor] wants it known that he may be in therapy, let alone having his therapist‘s treatment records in the public domain.” Such speculation fails to persuade us that the court committed plain error in accepting the parties’ waivers and admitting the exhibits into evidence. See generally In re Samantha S., 120 Conn. App. 755, 759, 994 A.2d 259 (2010) (speculation and conjecture have no place in appellate review), appeal dismissed, 300 Conn. 586, 15 A.3d 1062 (2011). We conclude, therefore, that Kyle S. failed to meet his burden with respect to his claim of plain error.
III
Finally, Kyle S. claims that the court improperly delegated its authority to decide his parenting time and custody to a nonjudicial entity. Specifically, he contends that it was error for the court to delegate the determination of the scope, nature and duration of his contact with T to Corson. We agree.
The following additional facts are necessary. In the court‘s December 9, 2016 oral decision, it noted that T had been impacted by the events of the past year. It then discussed the positive effect of T‘s therapy with Corson. “Again, I‘m delighted at the involvement and the progress that [T] has made with Dr. Corson. That is the path for [T] out of this darkness and that will happen in due course. Dr. Corson has been involved in planning with events unfolding as predictably as possible. One of the events that he has to deal with is the effect of this restraining order.”
After Kyle S.‘s counsel inquired about the scope of the order, the court explained as follows: “What I‘m—what I‘m intending—I have two files to work with here. The restraining order—the remedies with a restraining order are rather a sledge hammer. I‘m trying to be a little more deft and I am simply in the other file entering an order that says that [Kyle S.‘s] contact with [T] will be therapeutic in nature as dictated by Dr. Corson. I want the mental health professional to guide me and I want [Kyle S.‘s] contact with [T] to be expandable or contractible in conjunction with the child‘s needs. So you are correct . . . I‘m not extending any aspect of the temporary restraining order to [T] but, in the other file, the custody file, I am restricting that contact so that the mental health professional can be in charge.” (Emphasis added.) The court further noted that the parties could “clarify” with Corson as needed.
“It is well settled authority that [n]o court in this state can delegate its judicial authority to any person serving the court in a nonjudicial function. The court may seek the advice and heed the recommendation contained in the reports of persons engaged by the court to assist it, but in no event may such a nonjudicial entity bind the judicial authority to enter any order or judgment so advised or recommended. . . . A court improperly delegates its judicial authority to [a nonjudicial entity] when that person is given authority to issue orders that affect the parties or the children. Such orders are part of a judicial function that can be done only by one clothed with judicial authority.” (Citation omitted; internal quotation marks omitted.) Keenan v. Casillo, 149 Conn. App. 642, 660, 89 A.3d 912, cert. denied, 312 Conn. 910, 93 A.3d 594 (2014); see also Valante v. Valante, 180 Conn. 528, 532-33, 429 A.2d 964 (1980) (rendering of judgment is judicial function and can only be accomplished by one clothed with judicial authority); Nashid v. Andrawis, 83 Conn. App. 115, 120, 847 A.2d 1098 (while judicial authority may seek advice and recommendations, in no event may nonjudicial entity bind judicial authority to enter any order or judgment), cert. denied, 270 Conn. 912, 853 A.2d 528 (2004).
In the present case, Kyle S. argues that the court improperly delegated the determination of parenting time and custodial rights to Corson. We agree. The court expressly stated that it would “rely” on Corson with respect to issues involving T It noted that Corson would “dictate” the scope of Kyle S.‘s contact with T in a therapeutic setting. After Kyle S.‘s counsel sought a further explanation, the court iterated and emphasized Corson‘s role in determining the contact between T and Kyle S. It further ordered that this contact was subject to expansion or contraction depending on T‘s needs and that Corson would be “in charge.”
The court‘s orders regarding Kyle S.‘s contact with T constituted an impermissible delegation of judicial authority to Corson. Pursuant to the orders of the court, Corson was to “dictate” the scope of the contact between Kyle S. and T, and Corson was authorized to increase or decrease said contact аs he saw fit. The court also noted that Corson was “in charge.” We recognize that “[a] court is permitted to
The judgment in the dissolution action is reversed only as to the orders providing that a nonjudicial entity determine the contact between Kyle S. and T and the case is remanded for further proceedings solely as to that issue; the judgment in that action is affirmed in all other respects. The judgment in the application for relief from abuse action is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the victims of family violence, we decline to identify the victim or others through whom the victim‘s identify may be ascertained. See