HECTOR G. MORERA
v.
STEPHENIE C. THURBER
Argued
October 11, 2018
Procedural
History
Action
for the dissolution of a marriage, and for other relief,
brought to the Superior Court in the judicial district of
Hartford and tried to the court, Carbonneau, J.;
judgment dissolving the marriage in accordance with the
parties' agreement and granting certain other relief;
thereafter, the court, Simo´n, J., granted the
plaintiff's request for leave to file a motion to modify;
subsequently, the court, Simo´n, J., dismissed
the plaintiff's motion to modify, and the plaintiff
appealed to this court. Reversed; further
proceedings.
Hector
G. Morera, self-represented, the appellant (plaintiff).
ELGO,
BRIGHT AND FLYNN, JS.
OPINION
BRIGHT, J.
The
plaintiff, Hector G. Morera, appeals from the judgment of the
trial court dismissing his motion for modification of the
court's visitation orders, and requesting court
assistance in reunifying him with the teenaged daughter he
shares with his former wife, the defendant, Stephenie C.
Thurber.[1] On appeal, the plaintiff claims that the
court violated his right to due process of law by improperly
dismissing his motion without giving him the benefit of an
evidentiary hearing. We agree and, accordingly, reverse the
judgment of the trial court.
The
following facts and procedural history, which we have
ascertained from the record, are relevant to this appeal. The
court dissolved the marriage of the parties on June 18, 2012,
ordered that the defendant would have sole legal and physical
custody of the parties' two minor children, a son and a
daughter, and entered detailed parental access orders. The
court also ordered the defendant to consult with the
plaintiff on all material issues concerning the children, and
the parties were ordered to obtain the assistance of a
parenting coordinator. On May 17, 2013, the defendant filed a
motion to modify the orders contained in the dissolution
judgment. Following an evidentiary hearing, the court, in an
October 10, 2013 oral ruling, granted the defendant's
motion for modification and ordered that ‘‘[a]ll
access with the children by [the plaintiff] shall be as
directed and supervised by the Klingberg Institute until
written agreement of the parties with the input of
Klingberg's experts or further order of the
court.'' The court also ordered that
‘‘[n]either party shall file any motion with this
court without first seeking and receiving the permission of
the presiding judge.'' Later, the court further
clarified that its order was meant to encompass a
reunification program through the Klingberg Institute and
that the matter was referred to Family Relations with
direction to implement that order.[2]
On
February 25, 2016, the plaintiff filed a request for leave to
file a motion for modification, along with a motion for
modification in which he sought an order for reunification
therapy with his daughter. The defendant did not file an
objection. On October 13, 2016, the court granted the
plaintiff's request for leave, referred the matter to
Family Services with specific direction, and continued the
matter until November 30, 2016.
On
November 30, 2016, the court ordered, inter alia, that the
parties each submit the names of three reunification
therapists for the court's consideration, which they did.
The court, however, was dissatisfied with the names submitted
by the parties, and, on December 15, 2016, it appointed Dr.
Bruce Freedman as the reunification therapist.
The
parties again appeared before the court at a February 15,
2017 status conference.[3] The court and the parties each had
received a copy of Dr. Freedman's report earlier that
day. During the status conference, the court stated that it
had reviewed the report, and that it did not know what more
it could do to help with the plaintiff's reunification
with his daughter, short of physically forcing the daughter
to participate in counselling or visitation with the
plaintiff. The plaintiff stated that he understood that there
were consequences to his pursuing this matter further, but
that he believed he needed to proceed because his
‘‘daughter deserves a father and that overweighs
[any] negatives . . . .'' The plaintiff also
suggested to the court that it could order him and his
daughter to participate in an intensive seminar with Linda J.
Gottlieb, a licensed marriage and family therapist. The
plaintiff then told the court that he disputed the contents
of Dr. Freedman's report and that he had evidence he
would like to present to the court. He also complained that
he had been given only two hours to review Dr. Freedman's
report before the status conference.
The
court explained that it understood the loss felt by the
plaintiff, but that it believed any further interference
would alienate the daughter further. The court then ruled:
‘‘[h]aving said that, having taken this under
careful consideration and having spent . . . the last two
years pursuing avenues of redress regarding the relationships
between [the plaintiff] and his children, the court sees no
cure for the current status of the relationship between
father and his daughter that this court can in any way heal.
And, I'm going [to], at this time, dismiss the motion for
modification as to the daughter.''[4] This appeal
followed.
On
appeal, the plaintiff claims that the court violated his
right to due process of law by improperly dismissing his
motion without giving him the benefit of an evidentiary
hearing. He argues that he had approximately two hours to
review Dr. Freedman's report before the status
conference, that he notified the court that he disagreed with
the report, and that he told the court that he wanted to
present his own evidence. He contends that the failure of the
court to schedule and conduct an evidentiary hearing under
such circumstances, constitutes a violation of his right to
due process of law under the federal and state constitutions.
We agree.
‘‘A
fundamental premise of due process is that a court cannot
adjudicate any matter unless the parties have been given a
reasonable opportunity to be heard on the issues involved. .
. . Generally, when the exercise of the court's
discretion depends on issues of fact which are disputed, due
process requires that a trial-like hearing be held, in which
an opportunity is provided to present evidence and to
cross-examine adverse witnesses. . . . It is a fundamental
tenet of due process of law as guaranteed by the fourteenth
amendment to the United States constitution and article
first, § 10, of the Connecticut constitution that
persons whose . . . rights will be affected by a court's
decision are entitled to be heard at a meaningful time and in
a meaningful manner. . . . Where a party is not afforded an
opportunity to subject the factual determinations underlying
the trial court's decision to the crucible of meaningful
adversarial testing, an order cannot be sustained.''
(Internal quotation marks omitted.) Bruno v. Bruno,
132 Conn.App. 339, 350-51, 31 A.3d 860 (2011); see also
Kelly v.Kelly, 54 Conn.App. 50, 58, 732
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