GINA MICHAELS v. THOMAS MICHAELS
(AC 37175)
Beach, Sheldon and Harper, Js.
Argued December 7, 2015—officially released March 22, 2016
(
SHELDON, J.
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Todd R. Bainer, for the appellant (defendant).
Richard W. Callahan, for the appellee (plaintiff).
Opinion
SHELDON, J. In this postjudgment dissolution of marriage matter, the defendant, Thomas Michaels, appeals from the trial court’s finding of contempt against him and its modification of his visitation rights with his minor daughter. He claims that the court erred: (1) in denying his motion for ‘‘either recusal/disqualification, the motion for mistrial or the motion to vacate . . . [which were] all based on [the court’s] alleged bias and partiality’’; and (2) in modifying his visitation rights after an evidentiary hearing, of which he allegedly had no notice, on what he claims to have been a ‘‘nonexistent recent motion to modify, or on a motion that was fifteen months
The marriage of the defendant and the plaintiff, Gina Michaels, was dissolved on March 17, 2011. The dissolution judgment provided that the parties would share joint legal custody of the minor child, with the child’s primary physical residence to be with the plaintiff, and the defendant to have the right to visitation. The dissolution judgment also provided, inter alia, that the defendant would pay child support to the plaintiff and that the parties would share several listed expenses for the minor child.
On May 13, 2013, the plaintiff filed a motion for contempt, in which she alleged that the defendant had failed to pay certain expenses for the minor child in accordance with the dissolution judgment. On April 1, 2014, the parties reached a compromise with respect to the contempt motion, under which the defendant agreed to file his 2013 tax return no later than April 15, 2014, and to pay the plaintiff the sum of $1500, upon receipt of his tax refund, as his portion of the expenses for which the plaintiff sought reimbursement in her motion for contempt. The defendant further agreed that if, through no fault of his own, he did not receive the anticipated tax refund, he would satisfy that $1500 payment obligation by making monthly payments to the plaintiff, in the amount of $100 per month, commencing on May 15, 2014. The dеfendant finally agreed to provide the plaintiff with a receipt or other proof that he had timely filed his tax return. The parties’ agreement was made an order of the court.
Also, on May 15, 2013, the plaintiff filed a motion to open the judgment and to modify the parenting plan, alleging,3 inter alia, that: ‘‘The inconsistency of the defendant’s work schedule and the resulting constant flux of the child’s parenting schedule with the dеfendant; the defendant’s inability to comply with the existing parenting orders, whether intentional or otherwise; the age of the minor child and her need for consistency, especially during the school year; and the parties’ continued inability to communicate, renders the current
parenting schedule contrary to the best interests of the minor child.’’ In addition to a modification of the visitation schedule, the plaintiff requested, in her motion to modify, that she be vested with final decision
On July 31, 2013, the parties appeared in court and entered into an agreement for a modified temporary parenting plan and the court appointed a guardian ad litem to represent the interests of the minor child. The parties agreed to report back to the court on September 25, 2013. When the parties appeared in court on September 25, 2013, they again agreed to modify the parenting schedule. They further agreed to ‘‘report back [to the court] on October 15, 2013 . . . to file a more detailed stipulation resolving all outstanding issues.’’4 On February 11, 2014, the parties аgain appeared before the court and agreed to a modified parenting schedule.
In the spring of 2014, the marital home in Woodbridge, in which the plaintiff and the minor child had been residing, was sold and the plaintiff, along with the child, relocated to Madison.5 On April 9, 2014, the defendant filed ‘‘Defendant Father’s Memorandum re: Parenting Time (postjudgment).’’ In that document, the defendant represented that he ‘‘maintains an apartmеnt in West Haven but spends most of his time at the Woodbridge residence of his girlfriend.’’ On the basis of the plaintiff’s relocation to Madison, and his residing in Woodbridge, the defendant proposed a modified parenting schedule. The defendant suggested in the proposed schedule that the parties report back to court on June 2, 2014, to meet with a family relations officer to work out the parenting schedule for the summer and the upcoming school year.
On April 15, 2014, the court, Hon James G. Kenefick, judge trial referee, issued orders again modifying the parenting plan in contemplation of the new Madison residence of the plaintiff and the minor child. On June 18, 2014, the parties entered into an agreement for a modified parenting schedule for the summer of 2014, and agreed to meet with family relations on August 13, 2014 to ‘‘discuss the school schedule for 2014–2015.’’
On Junе 24, 2014, the plaintiff filed a motion for contempt, alleging both that the defendant had not yet given her proof that he had filed his 2013 tax return on or before April 15, 2014, and that he had neither paid her the sum of $1500 upon receipt of his tax refund, nor made monthly $100 payments to her toward his $1500 payment obligation to satisfy that debt, pursuant to the court’s order of April 1, 2014.
The court, Emons, J., held a hearing on the contempt motion on August 6, 2014. After the hearing, the court
ruled that the defendant was not in contempt for failing to file his tax return by April 15, 2014, because his failure to do so had been through no fault of his own. The court ruled, however, that the defendant was in
As scheduled, the parties again appeared before the court, Emons, J., on August 13, 2014. At the commencement of the hеaring, the guardian ad litem apprised the court of various visitation issues that remained to be resolved. Because the family relations officer with whom the mediation of those issues was to have been conducted was unexpectedly not available at that time, the parties and the guardian ad litem agreed, with the court’s approval, to reschedule their meeting with family relations to attempt to mediate the visitation issues, and to report back to the court on August 27, 2014. Because August 27, 2014, would be the first day of school for the child, the court informed counsel that if they could not reach an agreement on that date, it would adjudicate the visitation issue. As for the defendant’s tax return, the court heard testimony from both parties, but it was still unclear as to whether it had yet been filed. Counsel for the plaintiff had subpoenаed the defendant’s accountant, but the accountant had not appeared in court. The court thus ordered the parties to contact the accountant again, and advised them that if the accountant failed to appear on August 27, 2014, a capias would be issued for his arrest.
On August 27, 2014, the parties again appeared before the court, Emons, J. When the defendant’s accountant did not appear, the court issued a capias for his arrest, and continued the contempt hearing to September 2, 2014. The court then proceeded with the visitation issue, which the parties had been unable to resolve with family relations. After hearing testimony from both parties and the guardian ad litem, the court informed the parties that it was ready to render its decision, but afforded them one more oppоrtunity to come to an agreement on the outstanding issues. Because the parties were scheduled to return to court the following week, on September 2, 2014, on the contempt motion, the court announced that it would hold its decision in abeyance until that date.
On September 2, 2014, the parties appeared before the court, Emons, J., as scheduled. At the commencement of the proceеding on that date, the defendant filed
a motion to recuse or disqualify the court based upon the alleged bias and partiality that it had displayed against him in prior proceedings on August 6, 13 and 27, 2014.6 On that same alleged basis, the defendant also moved simultaneously to vacate the court’s prior finding of contempt, for a new trial on the plaintiff’s contempt motion, and for a mistrial.7 The
I
The defendant first claims that the court erred in denying his motion for ‘‘either recusal [or] disqualification, the motion for mistrial or the motion to vacate . . . [which were] all based on [the court’s] alleged bias and partiality.’’ The plaintiff argues that the record is inadequate to review these claims. We agree with the plaintiff.
‘‘The duty to provide this court with a record adequate for review rests with the appellant. . . . It is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. Practice Book § [60–5] . . . . It is not the function of this court to find facts. . . . Our role is . . . to review claims based on a complete factual record developed by a trial cоurt. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the defendant’s claims] would be entirely speculative.’’ (Internal quotation marks omitted.) Macricostas v. Kovacs, 67 Conn. App. 130, 133, 787 A.2d 64 (2001).
The plaintiff claims that the record is inadequate for review because the defendant failed to comply with
In the present case, the court did not file a written memorandum of decision explaining its ruling, nor did it prepare and sign a transcript of an oral ruling. See
‘‘On occasion, we have overlooked an appellant’s failure to ensure that the trial court sign a transcript of an oral decision provided that the appellant had filed an unsigned transcript and we [were] able to identify readily the court’s decision, encompassing its findings . . . .’’ (Emphasis in original; internal quotation marks omitted.) Gordon v. Gordon, supra, 148 Conn. App. 67. Although the record before us includes the trial transcript, we cannot readily identify any portion of the transcript that encompasses the court’s factual findings with respect to the defendant’s claims that the trial court was biased and partial. See Murcia v. Geyer, 151 Conn. App. 227, 230–31, 93 A.3d 1189, cert. denied, 314 Conn. 917, 100 A.3d 406 (2014). Because the transcripts do not provide the trial court’s factual or legal bases for denying the defendant’s motions, the record is inadequate to review his
II
The defendant also claims that the court erred in modifying his visitation rights. He claims that there was no ‘‘viable’’ motion for modification pending, and thus that he was denied proper notice that visitation was going to be modified. The defendant did not raise this objection before the trial court,9 and thus is raising it for the first time on appeal. The defendant does not seek review under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), nor does he state any extraordinary basis for reviewing this unpreserved claim. The claim is therefore not properly before us.
Moreover, the defendant’s claim that he did not have notice that modification of visitation was pending is belied by the record. Indeed, the record contains substantial evidence of the defendant’s knowledge that his visitation was going to be modified. In addition to the numerous times that scheduled proceedings on the visitation issues had been continued on the record in open court, the defendant demonstrated his knowledge of the ongoing visitation issues in writing in the pleadings he filed with the court. Most notably, in his September 2, 2014 motion for mistrial, the defendant stated that the August 27, 2014 hearing ‘‘was to be a simple hearing on school year scheduling of the minor child . . . .’’ In his motion for mistrial, he objected to the fact that the August 27, 2014 hеaring had been ‘‘a full-blown trial to change custody—i.e., by final decision-making to [the] plaintiff, with no advance notice to [the] defendant, denying him his due process rights.’’ During the September 2, 2014 hearing, counsel for the defendant repeatedly stated that the only issue relating to the minor child that was properly before the court on that day concerned the defendant’s visitation schedule during the school year. Other custody related issues raised by the plaintiff on that date were thus continued to a later date at the request of the defendant for the very reason that he was unaware that they were outstanding
and was thus unprepared to go forward on them at that time. Moreover, although the plaintiff’s motion to modify visitation had been filed several months earlier, and had resulted in some changes to visitation, the resolution of that motion had not yet been finalized. The parties had been meeting with family relations in an attempt to resolve their ongoing dispute by way of mediation,
The judgment is affirmed.
In this opinion the other judges concurred.