GORDON MERKEL v. MARLENE BALTIMORE HILL
(AC 41352)
Connecticut Appellate Court
April 26, 2019
Keller, Bright and Beach, Js.
Argued April 10
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Syllabus
The plaintiff filеd a motion to modify orders of custody and visitation concerning the parties’ minor child that had been issued in connection with a foreign judgment of dissolution. Thereafter, the plaintiff filed a motion to modify a parental access plan. The plaintiff claimed that the parties’ circumstances had changed since the entry of the existing orders and requested that the trial court follow the recommendations contained in a comprehensive evaluation report that had been prepared by a family relations counselor one year earlier. At a short calendar hearing, the trial court and the parties confirmed that the sole motion scheduled to be heard and decided at the hearing was the motion to modify the parental access plan. Following the hearing, the court issued a memorandum of decision in which it modified the existing orders relating to the parentаl access plan and custody, and adopted the entirety of the recommendations in the report of the family relations counselor, who had testified at the hearing that because the report was prepared one year prior, the recommendations contained therein were outdated. On appeal to this court, the defendant claimed, inter alia, that the trial court violated her right to procedural due prоcess when it modified the existing custody order without any notice and after a hearing at which it repeatedly was confirmed that the only issue was the modification of the parental access plan. Held that the trial court violated the defendant‘s procedural due process rights when it modified the custody order: that court modified the custody order without providing the parties with notice and a meaningful opportunity to be heard on that issue, as the court and both parties expressly and consistently had confirmed that the sole motion to be heard and decided at the hearing was the motion to modify the parental access plan, and the plaintiff conceded at oral argument before this court that modification of the custody order was improper; moreover, the trial court abused its discretion when it adopted the recommendations in the report of the family relаtions counselor under the circumstances here, where the recommendations in the report were stale and outdated, the family relations counselor was unable to answer questions about her report because she had not been subpoenaed and was unprepared, and she testified that such reports become outdated six months after completion because of the evolution of child development, and that shе could not make present recommendations and would do a disservice to the minor child to say that the recommendations in her report were still valid.
Argued April 10-officially released April 26, 2019*
Procedural History
Motion by the plaintiff for, inter alia, modification of orders of custody and visitation as to the parties’ minor child issued in connection with a foreign judgment of dissolution, and for other relief, brought to the Superior Court in the judicial district of Windham at Putnam; thereafter, the plaintiff filed a motion to modify the pаrties’ parental access plan; subsequently, the court, A. dos Santos, J., entered orders modifying the parental access plan and custody, and the defendant appealed to this court; thereafter, the court, A. dos Santos, J., granted in part the defendant‘s motion to stay the proceedings, and the defendant filed an amended appeal. Reversed; further proceedings.
Pamela S. Bacharach, for the appellant (defendant).
Gordon Merkel, self-represented, the appellee (plaintiff).
Opinion
The record reveals the following undisputed facts and procedural history. The parties, who never were married, have one child, who was born in December, 2008. In April, 2009, the defendant, who lived in Massachusetts at the time, filed a complaint in the Massachusetts Probate and Family Court seeking child supрort from
On October 11, 2013, the plaintiff filed a certified copy of the Massachusetts judgment in the Connecticut Superior Court, and the trial court domesticated the Massachusetts judgment. See
On September 7, 2017, the plaintiff filed a motion to modify only the parental access plan. In his motion, the
plaintiff maintained that the circumstances had changed since the entry of the existing orders in 2013, and he requested that the court follow the recommendations of the report on a temporary basis until a full trial could be held. Although there were several other pending motions to modify both the custody and parental access plan orders, and motions for contempt, only the plaintiff‘s September 7, 2017 motion was scheduled to be heard at the short calendar on October 11, 2017. On October 4, 2017, the plaintiff filed an application for the issuance of a subpoena to compel Fraser‘s aрpearance at the short calendar hearing, which was denied by the court on the same date.
At the outset of the October 11, 2017 short calendar hearing, the court identified that there were approximately three to eight motions and objections pending, but the sole motion scheduled to be heard that day was the plaintiff‘s September 7, 2017 motion to modify the parental access plan. The defendant‘s attorney agreed that the motion to modify the parental access plan was the only motion scheduled to be heard, and she orally requested a special assignment so that all of the pending motions could be heard on the same day, which the court denied. The court and both parties repeatedly confirmed throughout the hearing that the only motion that was to be heard that day was the plaintiff‘s motion to modify the parental access plan.
Thereafter, the court made Fraser available to testify so that the defendant would have the ability to cross-examinе her. Fraser testified as to the general process with respect to the compilation of a report, but she testified that she could not opine as to the particulars
of the report at issue because she was not expecting to testify that day regarding the present case, her report had been completed almost one year ago, she had not reviewed the file, report, or notes, and she did not have the file or notes with her in court to refresh her recollection.
In response to a series of questions as to whether the recommendations made in her report were still her present recommendations, Fraser provided the following relevant testimony: “I have no basis for-it‘s a year old. I-I haven‘t spoken with anybody. I haven‘t-I don‘t know where the minor child, you know-how the minor child is doing. I don‘t know if the two parties have come to a different agreement. I havе nothing to base a recommendation today on. . . . These are recommendations that I made in December of 2016 based on all of the evidence and all of the people that I spoke to at that time. . . . I can‘t make any recommendations for today.” She also testified that she “was always under the assumption that our reports were outdated after six months because of child custody and access, and the child development changing. I mean, child custody and access is a-a living, breathing thing. We all know that. That‘s part of family law that makes it so difficult. . . . Children grow. Children‘s needs . . . change. What was in the best interest of a child a year ago may not be in the best interest of a child today. And, unfortunately, I find myself in a very tough predicament because while I wholeheartedly-I will stand by my recommendation and that it was based on good evaluative work, I-I have no basis to say that it‘s still valid for-for both mom and dad today. I-I would be doing a disservice to the minor child to say that. I can‘t say that.” Thereafter, the defendant testified regarding her relationship with the plaintiff and the child.
On January 26, 2018, the court issued a memorandum of decision in which it modified
On appeal, the defendant claims that the court improperly modified the existing orders relating to custody and the parental access plan. In support of her
claim, the defendant first argues that the court violated her right to procedural due рrocess under the United States constitution because it modified the existing custody order without any notice and after a hearing at which it repeatedly was confirmed that the only issue was the modification of the parental access plan. Second, she argues that the court abused its discretion by adopting the recommendations contained in the report because Fraser specifically testified that the report was outdatеd and that her recommendations contained therein were not current.3 We agree.
We begin with the standard of review and general principles relevant to the defendant‘s first argument. Whether the court violated the defendant‘s constitutional procedural due process rights is a question of law over which our review is plenary. State v. Harris, 277 Conn. 378, 394, 890 A.2d 559 (2006). “[F]or more than a century the central meaning of procedural due process has been clear: Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified. . . . It is equally fundamental that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner. . . . [T]hese principles require that a [party] have . . . an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally.” (Citation omitted; internal quotation marks оmitted.) In re DeLeon J., 290 Conn. 371, 378, 963 A.2d 53 (2009). “A parent‘s right to make decisions regarding the care, custody, and control of his or her child is a fundamental liberty interest protected by the [f]ourteenth [a]mendment. . . . Before a parent can be deprived of her right to the custody, care, and control of her child, he or she is entitled to due process of law.” (Internal quotation marks omitted.) Barros v. Barros, 309 Conn. 499, 508, 72 A.3d 367 (2013).
We turn next to the standard of review and general principles relevant to the defendant‘s second argument.
“We utilize an abuse of discretion standard in reviewing orders regarding custody and visitation rights. . . . In exercising its discretion, the court . . . may hear the recommendations of professionals in the family relations field, but the court must ultimately be controlled by the welfare of the particular child. . . . This involves weighing all the facts and circumstances of the family situation. Each case is unique. . . . A mere difference of opinion or judgment cannot justify our intervention. Nothing short of a conviction that the action of thе trial court is one which discloses a clear abuse of discretion can warrant our interference.” (Internal quotation marks omitted.) Lopes v. Ferrari, 188 Conn. App. 387, 393, — A.3d — (2019).
In making its discretionary determination as to whether to modify an existing order relating to custody or a parental access plan, “the trial court is bound to consider the [children‘s] present best interests and not what would have been in [their] best interests at some previous time.” (Emphasis in original; internal quotation marks omitted.) Collins v. Collins, 117 Conn. App. 380, 391-92, 979 A.2d 543 (2009); see O‘Neill v. O‘Neill, 13 Conn. App. 300, 303-304, 536 A.2d 978 (court аbused discretion by fashioning order based on past conduct and outdated evidence rather than present ability to parent), cert. denied, 207 Conn. 806, 540 A.2d 374 (1988); compare Balaska v. Balaska, 130 Conn. App. 510, 518, 25 A.3d 680 (2011) (recognizing that “court‘s reliance on outdated information and past parental conduct in making or modifying orders concerning parental access may be improper,” but concluding that court did not abuse its discretion where adequate current information in record to support orders).
In thе present case, the court clearly abused its discretion by adopting the custody and parental access plan recommendations contained in the report, which Fraser testified were stale and outdated. Fraser first filed her report on December 7, 2016, the short calendar hearing was held ten months later on October 11, 2017, and the court‘s decision was not issued until January 26, 2018. At the hearing, Fraser was unable to answer specific questions about her report because she had not been subpoenaed and had no idea that she was going to testify that day, and, thus, she was unprepared to testify that day. Furthermore, she explicitly stated that she could not make any present recommendations because she would have nothing on which to base such recommendations, and that she ”would be doing a disservice to the minor child to say that” her recommendations were still valid at the time of the hearing. (Emphasis added.) She also testified that she bеlieved that
dations, the court surprisingly found that Fraser‘s testimony “validated the report and her recommendations,” and it adopted her stale recоmmendations as its own. The court‘s adoption of the recommendations taken from the outdated report constituted a clear abuse of discretion.
Finally, we recognize that the plaintiff has been seeking to modify the existing custody and parental access plan orders for approximately five years, and that the result of our decision will in all likelihood require family relations to conduct an updated or new comprehensive evaluation before a decision can be made on his motion to modify custody.4 In light of the foregoing, we implore that this report be given priority and be completed as expeditiously as possible, and that a hearing on all motions to modify custody be scheduled immediately thereafter. In the meantime, we order that the court schedule as soon as possible a new hearing on the plaintiff‘s motion to modify the parental access plan.
The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.
PER CURIAM
* April 26, 2019, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.
Notes
“(b) Such foreign matrimonial judgment shall become a judgment of the court of this state where it is filed and shall be enforced and otherwise treated in the same manner as a judgment of a court in this state; provided such foreign matrimonial judgment does not contravene the public policy of the state of Connecticut. . . .”