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 ...