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Zilkha v. Zilkha

Court of Appeals of Connecticut

March 13, 2018


          Argued November 30, 2017

         Procedural History

         Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Stamford and tried to the court, Abery-Wetstone, J.; judgment dissolving the marriage and granting certain other relief; thereafter, the court, Emons, J., rendered judgment on a stipulated agreement between the parties concerning efforts to reunify the defendant with his minor children; subsequently, the matter was transferred to the judicial district of Waterbury; thereafter, the court, Hon. Barbara M. Quinn, judge trial referee, denied the defendant's motion for modification of custody and motion for order; subsequently, the court, Hon. Barbara M. Quinn, judge trial referee, denied the defendant's motion to reargue, and the defendant appealed to this court. Affirmed.

          Edward N. Lerner, with whom, on the brief, was George Kent Guarino, for the appellant (defendant).

          D. Suzanne Snearly, guardian ad litem for the minor children.

          Alvord, Prescott and Eveleigh, Js.


          PRESCOTT, J.

         In this highly protracted and bitterly contested family matter, the defendant, David Zilkha, whose marriage to the plaintiff, Karen Kaiser, [1] was dissolved in 2005, appeals following the denial of post-dissolution motions that sought to modify existing orders governing custody and visitation rights of the defendant with respect to the parties' children, who are now teenagers. The defendant claims on appeal that the court improperly (1) delegated its judicial function and failed to consider both the best interests of the children and public policy by granting the children considerable control over the defendant's level of access to them; (2) relied on events that occurred between 2004 and 2007, despite having informed the parties that such evidence was too remote and insufficiently weighty for consideration; (3) adopted the recommendation of the children's guardian ad litem, despite the guardian ad litem's alleged abandonment of that role; and (4) relied on an erroneous factual finding that reconciliation therapy had concluded, purportedly in direct contradiction to testimony provided by the parties' reconciliation therapist. Additionally, the defendant requests by way of relief that, if this court agrees with all or parts of his claims, we should exercise our inherent equitable authority and order, without a remand, that the children participate in one of the reunification programs identified in his proposed orders to the trial court. For the reasons that follow, we reject the defendant's claims and affirm the judgment of the trial court.

         The following procedural history and facts, as set forth by the trial court, Hon. Barbara M. Quinn, judge trial referee, in its detailed, thoughtful and well reasoned memorandum of decision are relevant to our discussion of the defendant's claims. The parties married in 1998, and their twin children, Chloe and Jake, were born a few years later in February, 2001. The parties ‘‘never were able to form the mutually supportive and understanding relationship that a successful marriage would require. . . . By 2004, their relationship became untenable . . . .

         ‘‘[Despite the plaintiff having commenced divorce proceedings in late 2003, the parties] remained in the [marital] home in Connecticut together, and the escalating tensions were difficult for both of them to endure. [The defendant] worked in New York for a hedge fund, which ultimately collapsed. The time constraints of his position did not permit him to be home with his young children during the evenings before they were put to bed. [The plaintiff] assumed the traditional mothering role to the considerable exclusion of [the defendant], whom she viewed as unfit to parent. . . . [The defendant] found the proposed loss of the daily society of his children extremely painful, and so resisted moving out of the home.''

         On three separate occasions during the summer and fall of 2004, the police were called concerning conflicts between the defendant and the plaintiff. The second and most significant of the three incidents ‘‘came during a verbal argument between these [parties] on June 30, 2004, which the children witnessed. [The defendant] lost control and struck [the plaintiff] that evening. He struck her in the face several times, and the police observed [the plaintiff] to have a black eye, ultimately medically determined to be a fractured eye orbit and bridge of her nose. [The defendant] denied hitting [the plaintiff], and blamed it on the children. . . .

         ‘‘[The defendant] was ultimately criminally charged . . . and vacated the family residence. His children were then three and one-half years old. He has not resided with them or had them in his care without supervision during the day or overnight since that time . . . .''[2] (Footnotes omitted.)

         ‘‘[The defendant's] employment situation was also fraught with difficulties, and the hedge fund where he was employed collapsed during this time. A Securities and Exchange Commission (SEC) investigation into the collapse of the fund and the conduct of its principals, including [the defendant], resulted in negative publicity. Among other factors, this negative publicity resulted in [the defendant's] continued unemployment in the ensuing years and to the present time. All these matters added . . . stress and tension [to] the end of his marital relationship [and contributed to] his inability to enjoy free and uninhibited access to his two children.''

         The plaintiff and the defendant were psychologically evaluated by Harry Adamakos, a psychologist, from October, 2004, through March, 2005. The evaluation was ordered, at least in part, because the plaintiff, at that time, was seeking sole custody of the children. Adamakos prepared a report summarizing his findings as to each party.[3] At the time of the evaluation, the parties agreed that, prior to the escalation of conflict in 2004, the children enjoyed a very positive relationship with the defendant. Adamakos noted that, although the defendant lacked experience, he probably could learn to care for the children responsibly, at first for short periods of time but eventually for a day or two at a time. Adamakos also believed that the defendant's ability to parent the children ‘‘would likely improve as they become older and move out of the tender years, supporting a plan that would further increase father-child time as they get older.'' Despite this evaluation, ‘‘a normal divorced parent relationship with their father was not permitted to evolve. The psychological features of each parent noted in [Adamakos'] evaluation combined into the ‘perfect storm' of mutually negatively reinforcing interactions and destructive synergy to prevent a normal visiting relationship from developing in the many years that have passed since that time.

         ‘‘[The plaintiff's] anxiety and need for control over all aspects of visitation have called into play the worst of [the defendant's] needs for denial and excessive repressive defense mechanisms, all to the detriment of their two children. The plaintiff does not accept or believe that it is best and healthy for her children to have access to [the defendant]. Her rejection of this central and important tenet of child-rearing and her beliefs about [the defendant] have led her to completely frustrate the normalization of [the defendant's] access to his children. [The defendant's] own angry conduct and at times inappropriate, childishly self-focused dealings with his children have played into her fears and anxieties, and only strengthened her beliefs in this regard.''

         The court also found that the following contributed to the parties' inability to implement a normal visiting relationship between the defendant and his children. First, the parties never developed any effective means to communicate about their children, a defect that continues to the present day. Second, the plaintiff never could overcome her distrust of the defendant or her lack of respect for his input regarding parenting decisions, ignoring the consequences this had on the children. Finally, the defendant lacked the attentive and focused parenting skills needed to achieve a successful visiting relationship with the children, failing to understand or accept that such a relationship, even under the best of circumstances, would likely fail to achieve the type of closeness experienced in intact families.

         The parties eventually entered into a separation agreement that was approved by the court and incorporated into the judgment of dissolution rendered on May 31, 2005. ‘‘That agreement provided, inter alia, that they would share joint physical custody of their children, who would reside with their mother. Despite this purported joint custody label, access by the father to the children was by therapeutic parenting time only . . . [consisting of] five hours each Saturday, three hours each Wednesday, with detailed provision for makeup visits, cancellation and so on.

         ‘‘The agreement also provided for a complicated and ultimately prohibitively expensive method of supervision and gatekeeping by the children's therapist and a clinical psychologist. There were no detailed provisions for how [the defendant] might establish his ability in the future to have unsupervised visitation with his children. The agreement is silent as to the reasons for such supervision, although it can be inferred by the events which took place in 2004 . . . .'' (Footnote omitted; internal quotation marks omitted.) Although the dissolution judgment was modified several times, those provisions governing the legal and physical custody of the children, including that the defendant have only supervised visitation with the children, remained unchanged.

         Between 2005 and 2007, some of the defendant's supervised visits with the children were successful and even enjoyable. The defendant, however, was unhappy about the cost of supervised visits and what he viewed as excessive scrutiny as a result of the presence of supervisors. ‘‘The reports from this time describe [the defendant] as often unable to respect the children's physical boundaries. He would tickle his son far too long, after being requested to stop. He would tease him in ways that were uncomfortable for the child. His anger at [their periodic] negative reactions to him also frustrated progress in visitation.'' Although the defendant made attempts to end supervision, those efforts failed. Nevertheless, toward the beginning of 2007, the defendant's counsel at that time recommended the appointment of ‘‘a new set of supervisors without the negative connections that the then existing supervisors and gatekeeper had with the family. That recommendation, whether by acceptance or by happenstance, was in fact followed, and a revised order entered by agreement in family court. A new team of supervisors was appointed and the process continued.

         ‘‘The outcome was, unfortunately, no different . . . [because] the system required by [the plaintiff] in the initial decree was inherently flawed. Because of such continued close observation, [the plaintiff's] obsessive fears about [the defendant], as well as [the defendant's] parenting failures, the very outcome the court orders were designed to prevent came about. That outcome was the slow, but complete erosion of the relationship between [the defendant] and his children. . . .

         ‘‘There was a gap in contact between [the defendant] and his children during 2007 before a new supervision plan was put into place. When supervised visits were resumed, they were conducted by new therapeutic supervisors . . . . When the supervised visitation concluded in September of 2009, [the primary supervisor] wrote a summary of the supervision. As to [the defendant] and his then [eight year old] twins, she wrote: Jake and Chloe are black and white thinkers, with little room in their ability at this point to think about the duality of situations. . . . Their belief now is [that the defendant] is a liar. It is all about one side or the other, and in this instance it is the negative side. When [the defendant] tries to challenge the children to recall a memory and see it from his perspective, the children feel invalidated and disrespected. . . . Children of this age have a huge sense of what is right and wrong and what is fair and unfair. The only way to handle this situation is to acknowledge the children's point of view. . . . [The defendant], himself being a black and white thinker, has trouble with this concept, and tries to drive the point home, that it didn't happen that way. This only creates power struggles between [the defendant] and the children and does not enhance their relation- ship.'' (Internal quotation marks omitted.)

         ‘‘Of [the plaintiff's] conduct, [the primary supervisor] noted that . . . [the plaintiff] is empathic with the children, and often is in the mode of I know which further reinforces their belief that their father is wrong. The empathy reinforces the polarized differences. That is not [the plaintiff's] intention, I believe, but because she is concerned and aroused emotionally by wanting to attune to her children's needs, this activates the children's fears and therefore their fight/flight mechanisms come into play, which makes them want to avoid these feelings, which they associate with their father.'' (Emphasis omitted; footnote omitted; internal quotation marks omitted.) The supervisor did not believe, however, that the plaintiff was consciously undermining visitation. The supervisor further maintained that the defendant exhibited great parental ability as long as he was being supervised and the children felt calm.

         Nevertheless, ‘‘during this period of supervised visitation when her children were between the ages of six and eight years old, [the plaintiff] indirectly sabotaged the visitation. She did this by being overly involved in exchanges and by soothing Jake and Chloe both before and after the visitation. As documented in the visitation notes, she [frequently] scheduled activities and meals shortly after visitation . . . which caused the children's engagement in the sessions to become minimal and resisting. Further . . . it was her custom and habit to keep notes of everything the children said about such sessions. While she claimed she did not let the children know she was keeping these notes, it strains the court's credulity that her heightened and emotional obsessive need ‘to protect' her children would not have been apparent to them, through her body language, her tension and her focused interest in what they were saying about their father.

         ‘‘[The defendant] did not always cover himself in the cloak of good parenting in these visitations, either. . . . As he came under scrutiny, his less helpful traits were called forth and negatively impacted visitation. . . . [V]isitation ended by September, 2009, after two particularly unpleasant events.[4] A different focus and concern on his part could have made a significant difference in his children's perception of them.'' (Footnote added.)

         ‘‘[The] visits ended in September, 2009, with no resolution of [the] negative tensions between [the defendant] and his children. . . . [A]t that time, when Chloe and Jake were eight years old, they had emotionally aligned themselves with their mother. [The sometimes] emotionally obtuse conduct [of their father] during visitation supported their negative view of him. The combination of unhelpful conduct [of] both parents meant that their children accepted their mother's anxiety and concerns about visits. They accepted her belief system about their father and his family as their own, and their stance continues to the present time.

         ‘‘Wherever the blame for the cessation of visits in 2009 lies, the fact remains that there were no more visits until early spring [of] 2014 . . . when Jake and Chloe were almost thirteen. This is a very significant length of time for children of this age. The memories of their father and their sense of any relationship with him would have eroded just due to that gap in time alone, never mind the other issues between them . . . . Both [the defendant's] parenting deficits, which the children still recall, and the lost window of time during these children's latency years had important and significant consequences for the next and last failed attempt at reunification.'' (Footnote omitted.)

         On January 25, 2013, the court rendered judgment on a stipulated agreement between the parties concerning efforts to reunify the defendant with the children, including the retention of therapists Linda Smith and David Israel for the children. According to the stipulation, ‘‘[t]he therapists [were to] direct who meets with them, at what time and with what frequency.'' The trial court noted that ‘‘[t]he agreement was the result of all counsel understanding that it was in the children's best interest[s] to have contact with their father and his extended family.[5] But even this agreement and order was frustrated for over a year by [the plaintiff's] unwillingness to sign the retainer agreement and her detailed concerns. She has admitted that she did not believe the reunification would ever go forward. In a very real sense, although there were subsequently four visits, reunification did not go forward. It ended prematurely and did not accomplish the outcome sought . . . .

         ‘‘As had happened before, [the plaintiff] encouraged her children to believe that each of them could determine whether or not the visits should continue. Chloe and Jake were demonstrably extremely resistant to visitation with their father. [The plaintiff] continued her resistant and undermining behavior, ongoing at that point for more than ten years . . . . By this time, [the plaintiff] had perfected the art.''[6] (Footnote added.)

         The four visitation sessions the children had with the defendant were very stressful for them, and they ‘‘began to demonstrate and disclose symptoms of their distress to their mother and their therapist. . . . The children's symptoms of distress, in addition to the conduct of their mother, caused the professionals to end the attempt at reunification.

         ‘‘There was no rapprochement between the children and their father possible at this late date when they were thirteen. [The defendant] and his children have not had any contact since the last of the four visits scheduled with [Smith].'' The trial court agreed with and credited the following assessment by the guardian ad litem with respect to the extent of the parental conflict at issue in the present case: ‘‘The parents have demonstrated a complete lack of insight as to the effects of their inability to communicate after the unfortunate and dramatic history and, if ordered to participate in reunification therapy, the children will have the added emotional distress of the tension involved in bringing these two parents again within the orbit of the other. Neither parent accepts responsibility for the familial circumstances in which the children cope, but instead blame the other in every aspect. . . . Both believe the other had ruined his or her respective life and that of the children.''

         On April 23, 2014, the defendant filed a motion seeking to open the initial 2005 dissolution judgment to modify the custody and visitation orders in effect. The defendant claimed that the plaintiff was in violation of the January 25, 2013 stipulated judgment and, by way of relief, sought orders (1) requiring the children's removal from the plaintiff's home, (2) continuing the reconciliation therapist's efforts to reunite him with the children, (3) mandating the plaintiff to pay for all ongoing costs related to the children's individual therapy, reconciliation therapy, and the attorney's fees of the defendant. On May 20, 2015, the defendant filed a motion for order that asked the court (1) to order that the January 25, 2013 stipulated agreement regarding reunification remain in effect and be complied with, (2) to issue appropriate orders properly structuring the reconciliation process, and (3) to award the defendant reasonable attorney's fees for bringing and arguing the motion.

         The court conducted an evidentiary hearing on the defendant's two postjudgment motions over the course of ten days beginning on January 13, 2016, and ending on February 19, 2016. At the close of the hearings, on February 19, 2016, the defendant filed a statement of proposed orders amending his original claims for relief. As described by the court, the statement set forth three alternative orders in descending order of desirability. The first two options each sought ‘‘to require the children to attend the Building Bridges reunification program, either the intensive four day program or the shorter two day Overcoming Barriers program. The third option [was to continue] reunification services with [Smith] and order that the mother undergo therapy to deal with the issues of the minor children and their contact with their father. Other claims for relief [were] for an award of attorney's fees, to compensate [the defendant] for [the plaintiff's] ‘alienation' of the children from him, as well as an acknowledgment by the court with an apology that this matter has taken so long to reach a contested hearing.'' The plaintiff, who represented herself throughout, filed a closing statement that summarized the testimony in her favor and implied that nothing should change regarding custody or visitation because the defendant failed to demonstrate any change in circumstances.

         During the trial court proceedings, the court heard recommendations about potential future efforts at family reunification, including from Benjamin D. Garber, an expert witness in psychology and parent/child reunification therapy offered by the defendant. ‘‘Garber recommended a program called Building Bridges, for troubled and alienated parent-child relationships. . . . He acknowledged that children involved in this program experience intense pain initially in the process and are under stress. . . . The Building Bridges program would require Jake and Chloe to leave the care of their mother, and attend what is essentially a ‘boot camp' for reunification with their father. The intensive program is a four day residential program with [twenty-four] hour therapeutic support, then followed by time alone with their father for a week with continued therapeutic support. Additionally, there is a period of temporary custody of the children to their father for ninety days. The children could also not have any contact with their mother for a specified period of time. The second option is a less intensive [two and one-half] day program, titled Overcoming Barriers, with the same structure and enforced access thereafter. Both programs prohibit contact with the parent who has been determined to be ‘alienating' the children from their father.''

         The court also heard testimony from the children's past and present guardians ad litem regarding the well-being of the children and the effects on them of ongoing reunification efforts. The court summarized as follows: ‘‘With the exception of contact with their father, the children have been and are doing extraordinarily well in all other spheres of their lives in the care of their mother. It speaks well of [the plaintiff] and [her current husband] and the home they have been able to create for these children. They are gifted children and excelling academically. They have full social ...

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