JAYNE K.[*] JAYNE K.
December 7, 2017
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 court, 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.
G. Palmer, with whom, on the brief, was Logan A. Carducci,
for the appellant (plaintiff in the first case, respondent in
the second case).
DiPentima, C. J., and Lavine and Bishop, Js.
protracted domestic litigation, arising out of a dissolution
of marriage action and a separate application for relief from
abuse, the plaintiff/respondent, Kyle S., appeals from
postjudgment orders of the court rendered in favor of the
defendant/applicant, Jayne K. On appeal, Kyle S. claims that
(1) Jayne K. failed to meet her burden of proof with respect
to her application for relief from abuse filed pursuant to
General Statutes § 46b-15, her application for an
emergency ex parte order of custody filed pursuant to General
Statutes § 46b-56f and her motion for modification of
custody filed pursuant to General Statutes § 46b-56, (2)
the court committed plain error by accepting the parties'
waiver of the minor child's privileged mental health
records and admitting the records into evidence and (3) the
court improperly delegated its authority to decide Kyle
S.'s parenting time and custodial rights to a nonjudicial
entity. We agree with Kyle S.'s third claim and,
accordingly, reverse in part the judgments of the trial
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 voice mail 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.
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 provided 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
period between February, 2013, and February, 2016, the
parties filed no motions, and the dissolution/custody file
remained static. On February 11, 2016, Jayne K. filed an
application for an emergency ex parte order of custody of T,
pursuant to General Statutes § 46b-56f. She sought, inter
alia, an order of temporary custody of T, with no visitation
between T and Kyle S. In the affidavit attached to her
motion, she claimed that Kyle S. had physically abused his
fiancée in the presence of T. Jayne K. further stated
that Kyle S. had been arrested and that the Department of
Children and Families (department) had been contacted. She
also filed a motion for modification of custody seeking sole
custody of T, listing Kyle S.'s arrest as the requisite
material change in circumstances.
time, Jayne K., in a separate file, also filed an application
for relief from abuse against Kyle S., pursuant to General
Statutes § 46b-15,  seeking a restraining order to protect
both herself and T. In her affidavit attached to this
application, Jayne K. expressed fear for her safety, stating
that Kyle S. had been arrested for attacking his
fiancée, had a violent history and criminal record of
abuse, stalking and harassment, and had threatened to kill
Jayne K. if she took T from him.
day, the court, Carbonneau, J., granted Jayne
K.'s ex parte applications and awarded the relief sought
without holding a hearing. Specifically, the court issued a
restraining order and awarded temporary custody of T to Jayne
K. It further ordered the parties to cooperate with the
department and to follow any reasonable mandates.
Additionally, the court scheduled a hearing on these matters.
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 fiancée,
informing Jayne K. about the events of Kyle S.'s
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 temporary order of
sole custody in favor of Jayne K.
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.
December 9, 2016 hearing, the court noted that the
restraining order was scheduled to expire on February 19,
2017. Again with the agreement of the parties,
the court admitted into 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
court found Jayne K.'s testimony credible and that she
had sustained her burden of proof under § 46b-15.
Accordingly, it continued the existing restraining order,
iterating that Kyle S. was ‘‘not to assault,
threaten, abuse, harass, follow, interfere with or stalk
[Jayne K.].'' The court ordered Kyle S. to stay away
from Jayne K.'s home and work, to not have any contact
with her for any reason, and ‘‘to stay 100 yards
away from her at all times [and] for all reasons.''
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.
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 were sufficient to establish that he
presented an immediate and ...