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Merkel v. Hill

Court of Appeals of Connecticut

April 26, 2019

GORDON MERKEL
v.
MARLENE BALTIMORE HILL

          Argued April 10, 2019 [*]

         Procedural History

         Motion by the plaintiff for, inter alia, modification of orders of custody and visitation as to the parties' minor child issued in connection with a foreign judgment of dissolution, and for other relief, brought to the Superior Court in the judicial district of Windham at Putnam; thereafter, the plaintiff filed a motion to modify the parties' parental access plan; subsequently, the court, A. dos Santos, J., entered orders modifying the parental access plan and custody, and the defendant appealed to this court; thereafter, the court, A. dos Santos, J., granted in part the defendant's motion to stay the proceedings, and the defendant filed an amended appeal. Reversed; further proceedings.

          Pamela S. Bacharach, for the appellant (defendant).

          Gordon Merkel, self-represented, the appellee (plaintiff).

          Keller, Bright and Beach, Js.

          OPINION

          PER CURIAM.

         The defendant, Marlene Baltimore Hill, appeals from the postjudgment order of the trial court modifying the existing orders governing the parental access plan and the custody rights of the self-represented plaintiff, Gordon Merkel, with respect to the parties' minor child. On appeal, the defendant claims that the court's modification of the existing custody order violated her right to procedural due process under the United States constitution, and that the court abused its discretion by adopting the recommendations contained in a stale family relations report to modify both the existing custody and parental access plan orders. We agree and, accordingly, reverse the judgment of the trial court.

         The record reveals the following undisputed facts and procedural history. The parties, who never were married, have one child, who was born in December, 2008. In April, 2009, the defendant, who lived in Massachusetts at the time, filed a complaint in the Massachusetts Probate and Family Court seeking child support from the plaintiff, who lived in Connecticut. On October 1, 2013, after four years of litigation, the Massachusetts Probate and Family Court rendered judgment in accordance with the parties' stipulated agreement regarding the support, custody, and visitation of their child. Pursuant to that judgment, the defendant was awarded sole physical and legal custody of the child, the plaintiff was entitled to visitation in accordance with a detailed parental access plan, and the plaintiff was to make biweekly child support payments to the defendant. Sometime thereafter, the defendant moved to Connecticut.

         On October 11, 2013, the plaintiff filed a certified copy of the Massachusetts judgment in the Connecticut Superior Court, and the trial court domesticated the Massachusetts judgment. See General Statutes § 46b-71.[1] On May 8, 2014, the plaintiff filed with the trial court a motion for modification of the existing orders relating to custody and visitation. On December 16, 2015, the plaintiff filed another motion to modify the custody and visitation orders. On February 3, 2016, the trial court referred the matter to the family relations division (family relations) of the Superior Court for a comprehensive evaluation. On December 7, 2016, the family relations counselor, Nancy E. Fraser, filed a comprehensive evaluation report (report). In her report, which was filed again on December 30, 2016, she recommended that the parties share joint legal custody of the child, that the defendant maintain primary physical custody, and a revised parental access plan that would increase the plaintiff's visitation with the child.

         On September 7, 2017, the plaintiff filed a motion to modify only the parental access plan. In his motion, the plaintiff maintained that the circumstances had changed since the entry of the existing orders in 2013, and he requested that the court follow the recommendations of the report on a temporary basis until a full trial could be held. Although there were several other pending motions to modify both the custody and parental access plan orders, and motions for contempt, only the plaintiff's September 7, 2017 motion was scheduled to be heard at the short calendar on October 11, 2017. On October 4, 2017, the plaintiff filed an application for the issuance of a subpoena to compel Fraser's appearance at the short calendar hearing, which was denied by the court on the same date.

         At the outset of the October 11, 2017 short calendar hearing, the court identified that there were approximately three to eight motions and objections pending, but the sole motion scheduled to be heard that day was the plaintiff's September 7, 2017 motion to modify the parental access plan. The defendant's attorney agreed that the motion to modify the parental access plan was the only motion scheduled to be heard, and she orally requested a special assignment so that all of the pending motions could be heard on the same day, which the court denied. The court and both parties repeatedly confirmed throughout the hearing that the only motion that was to be heard that day was the plaintiff's motion to modify the parental access plan.

         The plaintiff sought to introduce the report at the hearing. The defendant objected on the grounds that the report was stale and that Fraser had not been subpoenaed to be a witness. As to the staleness of the report, the plaintiff testified that ‘‘[e]verything has changed, '' including the child's ‘‘behavior, moving, [the defendant's] new job, '' the defendant's boyfriend, and the location of the police station used as a meeting point. As to the availability of Fraser, the court stated that she was available to testify because she was present in the courthouse at that time, working on other cases. The court overruled the objection and admitted the report as a full exhibit. After a short recess to permit the defendant's attorney to review the report for the first time, as she represented that it had been provided to prior counsel, the court then asked the plaintiff whether he agreed or disagreed with each of the twenty recommendations contained therein. The plaintiff testified that he agreed to a substantial majority of the recommendations. The defendant's attorney then cross-examined the plaintiff as to, among other things, his relationship with the child, the child's performance in school, and his interactions with the defendant.

         Thereafter, the court made Fraser available to testify so that the defendant would have the ability to cross-examine her.[2] Fraser testified as to the general process with respect to the compilation of a report, but she testified that she could not opine as to the particulars of the report at issue because she was not expecting to testify that day regarding the present case, her report had been completed almost one year ago, she had not ...


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