72 Conn. App. 193 | Conn. App. Ct. | 2002
Opinion
The defendant, Stuart M. Sheiman, appeals from the judgment of the trial court modifying the custody of the parties’ minor child. On appeal, the defendant claims that the court improperly (1) failed to provide him with a fair hearing with regard to the rules of evidence and trial practice, (2) granted the plaintiffs motion to modify custody without finding a material change in the circumstances and conditions of the parties, (3) denied the defendant’s motion to strike the plaintiffs motion to modify custody, (4) granted the oral motion in limine of the minor child’s counsel in violation of Practice Book § 15-3 and (5) permitted counsel for the minor child to assert the child’s privilege under General Statutes § 52-146c (3) with respect to the confidentiality of certain of the child’s treatment records without appointing a guardian ad litem. We affirm the judgment of the trial court.
The plaintiff, Deborah K. Sheiman, and the defendant were married in Connecticut in 1979. One child, a daughter, was bom of the marriage in 1987. The parties’ marriage was dissolved pursuant to a judgment rendered on May 13, 1992. The dissolution court granted the defendant sole custody of the child and awarded the plaintiff reasonable rights of access and visitation. On August 4,1999, the plaintiff filed a motion for modifica
Following an evidentiary hearing, the court granted the motion and awarded the plaintiff sole custody of the child.
The court found that the assessments of the family services worker were supported by the testimony of the parties and other witnesses at the modification hearing. Those assessments were that the child is steadfast in her insistence that she does not want to see the defendant. During her home visits, the family services worker
By contrast, the court found that there is warmth and affection between the child and the plaintiff. They engage well verbally. The plaintiff has been unsuccessful in her efforts to encourage the child to visit with the defendant. Although the child’s school work has “slipped” somewhat since she left the defendant’s home, this problem is offset by her dramatically improved socialization, which is a positive. The child has not been coached or coerced as to her living and custodial preference. The child’s personality probably is stronger than the plaintiff’s, and she is capable of making mature and competent decisions.
In addition, the court also recited its observations of the defendant’s demeanor and behavior during the hearing and noted that the defendant is capable of verbally abusive conduct. He verbally abused the child’s counsel on numerous occasions. In the courtroom, the defendant was impolite and discourteous to all. He devoted most of his energy to vilifying the plaintiff. He also abused the legal process to obtain the plaintiff’s private records.
I
The defendant’s first claim is based on his perception that the court did not provide him with a fair hearing
The basis of the defendant’s claim lies in comments made by the court after a short calendar hearing held approximately six weeks before the hearing on the motion to modify custody. On the basis of the court’s statements, the defendant claims that the court had prejudged the motion to modify before hearing the evidence and that the court’s findings were influenced by its predisposition. The defendant asks this court to afford plain error review to his claim and to read the entire transcript to elucidate his claim. The defendant did not file a motion seeking to have the trial court recuse itself.
“The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law. The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .” Practice Book § 60-5. “[T]o prevail under the plain error doctrine, the defendant must demonstrate that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . The doctrine is not implicated and review of the claimed error is not undertaken unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Hair, 68 Conn. App. 695, 705, 792 A.2d 179, cert. denied, 260 Conn. 925, 797 A.2d 522 (2002).
We have reviewed in its entirety the transcript of the short calendar hearing to which the defendant makes
II
The defendant’s second claim is that the court improperly granted the plaintiffs motion to modify cus
“The authority to render orders of custody and visitation [is] found in General Statutes § 46b-56, which provides in part: (a) In any controversy before the superior court as to the custody or care of minor children . . . the court may at any time make or modify any proper order regarding . . . custody and visitation . . . . (b) In making any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the child .... 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 sole question is whether the trial court abused its discretion in deciding that the best interests of the child would be served by [granting the plaintiffs motion]. The trial court had the advantage of observing the witnesses and the parties. Considerable evidence was presented concerning the activities of the parties since [the dissolution of the marriage]. In circumstances like these, whether the best interests of the [child] dictate a change of custody 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.” (Citations omitted; internal quotation marks omitted.) Lane v. Lane, 64 Conn. App. 255, 256-57, 779 A.2d 859 (2001).
On the basis of our review of the record, we conclude that the court did not abuse its discretion when it concluded that the facts found constituted a material
III
The defendant’s third claim is that the court improperly denied his motion to strike the plaintiffs motion to modify custody. We agree with the court that a motion to strike does not apply to a motion to modify custody.
This court’s standard of review of claims concerning a motion to strike is plenary. Barasso v. Rear Still Hill Road, LLC, 64 Conn. 9, 12, 779 A.2d 198 (2001). Practice Book § 10-39 (a) provides that a party wanting to contest the legal sufficiency of a complaint, counterclaim, cross claim or any counts contained therein or a prayer for relief, the joining of two or more causes of action or the legal sufficiency of an answer may file a motion to strike. A motion for modification of custody does not fall within the ambit of Practice Book § 10-39. The court therefore did not improperly deny the defendant’s motion to strike.
IV
The defendant’s next claim is that the court improperly granted an oral motion in limine made by the minor child’s counsel in violation of Practice Book § 15-3,
“[T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and . . . evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of a substantial prejudice or injustice.” (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Caldrello, 68 Conn. App. 68, 76-77, 789 A.2d 1005, cert. denied, 260 Conn. 903, 793 A.2d 1088 (2002).
Prior to the hearing on the motion to modify custody, the plaintiff filed a motion in limine pursuant to Practice Book § 15-3. The purpose of the motion was to preclude testimony from an expert witness who had provided treatment to the plaintiff and the minor child. The plaintiff claimed that any communication between the expert and herself was privileged pursuant to statute and that any testimony the expert might give with respect to the child was irrelevant and stale. The court heard argument on the motion during the hearing on the motion to modify. At that time, counsel for the child supported the motion in limine with respect to the child. The defendant admitted that the expert had not seen the child for more than one year. The court granted the motion in limine. We conclude that the court did not abuse its discretion in granting the motion and that our rules of practice permitted counsel for the child to be heard on the motion. See Practice Book § 15-3.
V
The defendant’s last claim is that the court improperly permitted counsel for the minor child to assert the child’s privilege under § 52-146c (3) against him with respect to testimony about medical treatment the child
The defendant’s claim arises out of his previous claim regarding the plaintiffs motion in limine. See part IV. In essence, the defendant claims that the court should not have permitted the child’s counsel to support the motion in limine to protect the confidentiality of the child’s treatment over the defendant’s desire to put the substance of that treatment into evidence. That claim is controlled by our Supreme Court’s decision in Ireland v. Ireland, 246 Conn. 413, 435-40, 717 A.2d 676 (1998) (en banc).
General Statutes § 46b-54 provides in relevant part: “(a) The court may appoint counsel for any minor child ... if the court deems it to be in the best interests of the child . . . . (b) Counsel for the child . . . may also be appointed . . . when the court finds that the custody, care, education, visitation or support of a minor child is in actual controversy . . . where it finds immediate action necessary in the best interests of any child, (c) Counsel for the child . . . shall be heard on all matters pertaining to the interests of any child, including the custody, care, support, education and visitation of the child . . . .”
“The purpose of appointing counsel for a minor child ... is to ensure independent representation of the child’s interests, and such representation must be entrusted to the professional judgment of appointed counsel within the usual constraints applicable to such representation. Schult v. Schult, [241 Conn. 767, 778, 699 A.2d 134 (1997)].” (Internal quotation marks omitted.) Ireland v. Ireland, supra, 246 Conn. 436. “We conclude that such representation is . . . the type of representation enjoyed by unimpaired adults. In other words, the attorney for the child is just that, an attorney, arguing on behalf of his or her client, based on the evidence in
On the basis of our review of the court’s findings and Ireland, we conclude that the court properly permitted the minor child’s attorney to assert the child’s statutoiy privilege with respect to her treatment records.
The judgment is affirmed.
In this opinion the other judges concurred.
The facts reveal that the parties’ child already was living with the plaintiff and that the motion sought judicial approval of the circumstances.
The child was represented by counsel, who took an active part in the hearing.
The court also indicated that it inferred from the judgment of the dissolution court that it had “to choose the lesser of two flawed choices.”
The record discloses that the parties and counsel for the child had filed more than 150 motions with the court between the judgment of dissolution and the judgment modifying custody.
We decline the defendant’s invitation to read the hearing transcript consisting of approximately 500 pages to find the allegations of partiality that he lists in his brief. The defendant’s brief does not comply with the rules of practice.
Practice Book § 67-4 (d) provides in relevant part: “The argument, divided under appropriate headings into as many parts as there are points to be presented, with appropriate references to the statement of facts or to the page or pages of the transcript or to the relevant document. The argument on each point shall include a separate, brief statement of the standard of review the appellant believes should be applied.” (Emphasis added.)
This court is not required to read the transcript, although it may do so in a proper case. See Practice Book § 67-1; Mikolinski v. Commissioner of Motor Vehicles, 55 Conn. App. 691, 696, 740 A.2d 885 (1999), cert. denied,
Practice Book § 15-3 provides: “The judicial authority to whom a case has been assigned for trial may in its discretion entertain a motion in limine made by any party regarding the admission or exclusion of anticipated evidence. If a case has not yet been assigned for trial, a judicial authority may, for good cause shown, entertain the motion. Such motion shall be in writing and shall describe the anticipated evidence and the prejudice which may result therefrom. A1 interested parties shall be afforded an opportunity to be heard regarding the motion and the relief requested. The judicial authority may grant the relief sought in the motion or such other relief as it may deem appropriate, may deny the motion with or without prejudice to its later renewal, or may reserve decision thereon until a later time in the proceeding.”
We are mindful that Ireland distinguishes the roles of an attorney for a minor child and a guardian ad litem for a minor child. The defendant here did not seek to have the court appoint a guardian ad litem for his daughter.