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Lopes v. Ferrari

Court of Appeals of Connecticut

March 12, 2019

YISIAH LOPES
v.
MARYANNA FERRARI

          Argued January 4

         Procedural History

         Application for custody of the parties' minor child, and for other relief, brought to the Superior Court in the judicial district of Waterbury where the court, Ficeto, J., denied the plaintiff's motion for the defendant to undergo a psychological evaluation; thereafter, the matter was tried to the court, Hon. Lloyd Cutsumpas, judge trial referee; judgment granting, inter alia, joint legal custody to the parties; thereafter, the court granted the plaintiff's motion to reargue and reconsider but denied the relief requested therein, and the plaintiff appealed to this court.

          Dale R. Funk, for the appellant (plaintiff).

          Michael K. Conway, for the appellee (defendant).

          Keller, Bright and Moll, Js.

          OPINION

          BRIGHT, J.

         The plaintiff, Yisiah Lopes, appeals from the judgment of the trial court granting the parties joint custody of their minor child and giving the defendant, Maryanna Ferrari, final decision-making authority when the parties fail to agree on a disputed matter concerning the child. On appeal, the plaintiff claims that (1) due to the court's denial of his motion requesting the court to order the defendant to undergoapsychological evaluation, the evidence was insufficient for the court to make an accurate assessment of the child's best interests, and (2) the court's custody determination, as set forth in its memorandum of decision, fails to comply with General Statutes §§ 46b-56 and 46b-56a (b). We affirm the judgment of the trial court.

         The following facts and procedural history are taken from the court's memorandum of decision or are part of the record. The parties, who are not married to each other, share a minor child. Approximately one week after the child's birth, the plaintiff filed an application for custody. The court referred the matter to the Family Relations Division (family relations) for a comprehensive evaluation.[1] The resulting report, thereafter, was made part of the record.[2] The court conducted an evidentiary hearing over the course of three days, and, after consideration of the statutory criteria, the court, in relevant part, awarded joint custody to the parties, with primary physical custody to the defendant. The court further ordered that the parties were to consult with each other on major decisions related to the child, but that the defendant had final decision-making authority when the parties were in disagreement. The plaintiff filed a motion to reargue and reconsider the court's determination. The court granted the motion, but it denied the relief requested. This appeal followed.

         I

         The plaintiff first claims that due to the court's denial of his motion for a court-ordered psychological evaluation of the defendant, the evidence was insufficient for the court to make an accurate assessment of the child's best interests.[3] He argues that he expressed to the court his concern that the defendant was using prescription medication, namely, Xanax, [4] on a daily basis, and he requested, to no avail, that the court order her to undergo a psychological evaluation. He contends that the court improperly denied his motion. We disagree.

         The following additional facts are relevant. On August 11, 2016, the plaintiff filed a ‘‘motion for psychological exam, '' requesting, pursuant to General Statutes § 46b-6, [5] that the court order the defendant to undergo a psychological examination. There were no factual allegations in the motion, and the only ground alleged by the plaintiff was that ‘‘he has concerns about [the defendant's] mental stability, and therefore the safety and well-being of the minor child while in the care of [the defendant].'' On October 26, 2016, the court heard argument on the plaintiff's motion.[6] During argument, the plaintiff told the court that he had concerns about the defendant's use of Xanax and her mental stability. He also expressed that he would be willing to pay for the defendant's examination. When the court explained that a psychological evaluation normally is not ordered solely because someone is taking a prescription medication, the plaintiff stated: ‘‘I understand that, but being a concerned parent, my understanding isif you're taking something on a daily basis, I have concerns that why do you need to take it daily. And that's all I'm trying to do is just investigate, research. And I feel with the psychological evaluation, it would basically outline that situation, and we'll be done with it and move forward. That's what's holding everything up.'' Shortly thereafter, the court stated that the plaintiff would have an opportunity to express his concerns to family relations, and that if family relations saw any problems with the defendant's ability to parent, it would relay those concerns to the court. The court then denied the plaintiff's motion, without prejudice, on the ground that it heard nothing in argument that justified ordering the defendant to undergo a psychological examination. The court further noted that family relations could refer the matter back to the court to consider ordering such an examination if, when preparing its comprehensive evaluation, it saw a reason to do so.[7]

         We review the court's denial of a motion for a physical or psychological examination under an abuse of discretion standard. See Tevolini v. Tevolini, 66 Conn.App. 16, 32, 783 A.2d 1157 (2001) (standard of review for denial of motion for physical examination in family matter is one of abuse of discretion); In re Daniel C., 63 Conn.App. 339, 365, 776 A.2d 487 (2001) (standard of review for denial of motion for psychological examination in termination of parental rights case is one of abuse of discretion). ‘‘In reviewing claims that the trial court abused its discretion, great weight is given to the trial court's decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court's ruling only if it could not reasonably conclude as it did.'' (Internal quotation marks omitted.) Tevolini v. Tevolini, supra, 32.

         It is clear from a review of the plaintiff's motion and his oral argument before the trial court that the plaintiff was engaged in nothing short of a fishing expedition for which he was seeking the court's assistance. Indeed, he specifically argued to the court that he was looking for an investigation; he set forth no facts to substantiate any concerns, with the exception of the fact that the defendant was taking a daily prescription medication that, in ...


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