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Boisvert v. Gavis

Supreme Court of Connecticut

July 2, 2019

DIANE BOISVERT ET AL.
v.
JAMES GAVIS

          Argued September 10, 2018

         Procedural History

         Petition for visitation with the defendant's minor child, brought to the Superior Court in the judicial district of Windham and tried to the court, Graziani, J.; judgment granting the petition, from which the defendant appealed; thereafter, the court, Graziani, J., denied the defendant's motion for an order precluding contact between the minor child and a third party; subsequently, the defendant, upon certification by the Chief Justice pursuant to General Statutes § 52-265a that a matter of substantial public interest was involved, filed a separate appeal with this court, which consolidated the appeals; thereafter, the court, Graziani, J., denied the defendant's motion to open and to terminate visitation, and the defendant's motion to dismiss, and the defendant, upon certification by the Chief Justice pursuant to § 52-265a that a matter of substantial public interest was involved, filed an amended appeal. Affirmed.

          Mathew Olkin, for the appellant (defendant).

          Douglas T. Stearns, for the appellees (plaintiffs).

          Justine Rakich-Kelly and Pamela Magnano filed a brief for the Children's Law Center of Connecticut as amicus curiae.

          Leslie I. Jennings-Lax and Louise T. Truax filed a brief for the Connecticut Chapter of the American Academy of Matrimonial Lawyers as amicus curiae.

          George Jepsen, former attorney general, and Carolyn A. Signorelli, Benjamin Zivyon and John E. Tucker, assistant attorneys general, filed a brief for the Department of Children and Families as amicus curiae.

          Mark S. Randall filed a brief for the Connecticut Bar Association as amicus curiae.

          Robinson, C. J., and Palmer, McDonald, D'Auria, Mullins, Kahn and Ecker, Js. [*]

          OPINION

          ECKER, J.

         The principal issue in this appeal is whether an order granting a third party's petition for visitation pursuant to General Statutes § 46b-59[1] over the objection of a fit custodial parent must include a provision requiring the third party to abide by all of the parent's decisions regarding the care of the child during the visitation. We conclude that neither § 46b-59 nor the due process clause of the fourteenth amendment to the United States constitution requires the trial court to impose such a broad term and condition on an order of third-party visitation. With respect to the more limited claim of the custodial parent, the defendant James Gavis, that the denial of his postjudgment motion for a no contact order between the minor child and the child's maternal aunt violated the defendant's fundamental parental right to make decisions regarding his child's associations, we conclude that the defendant failed to meet his burden of demonstrating any such constitutional violation because he failed, asa threshold matter, to articulate a reason in support of the requested term and condition. We reject the defendant's remaining claims and affirm the judgment of the trial court.

         I

         The following facts and procedural history are relevant to this appeal. On November 3, 2016, the plaintiffs, Diane Boisvert and Thomas Boisvert, [2] filed a verified petition for visitation with their grandson, B, [3] pursuant to § 46b-59. The defendant, who is B's father, opposed the petition. The trial court, Graziani, J., conducted an evidentiary hearing on the plaintiffs' petition, after which it issued a written memorandum of decision making the following findings of fact.

         The defendant and Nicole M. Gavis (Nicole) were married in October, 2011, and divorced in July, 2013. They had one child, B, who was born in June, 2012. The defendant was ‘‘the primary cause of the breakdown of the marriage'' because he subjected Nicole ‘‘to a course of domestic violence, threats and humiliation.'' (Internal quotation marks omitted.) As a consequence, ‘‘[t]he defendant has been in prison on seven different occasions with multiple incarcerations based [on] domestic violence . . . .'' During his incarcerations, the defendant failed to provide any financial support for his family. After their divorce in 2013, Nicole was awarded sole custody of B, and the defendant had no visitation until April, 2015, at which time he was given supervised access to B. Nicole died on March 8, 2016.

         The plaintiffs are B's maternal grandparents and, although they are divorced, they both have had a significant relationship with B since his birth. Prior to Nicole's death, her mother, Diane Boisvert, ‘‘provided [B with] care, including feeding, doctor appointments, taking [B] to day care, school appointments, taking day trips with [B] as well as taking [B]on vacation.'' Thomas Boisvert's ‘‘role in taking care of [B] was less than that of'' Diane Boisvert, but he still had a ‘‘significant relationship'' with B, which ‘‘involved . . . babysitting, feeding and changing [B's] diapers.''

         The defendant was granted custody of B after Nicole's death in March, 2016. The plaintiffs continued to be involved in B's life until June 26, 2016, [4] when the defendant terminated the plaintiffs' contact with B because he believed that they were ‘‘seeking custody of [B] and [were] also seeking to get [the defendant] sent back to jail.'' The defendant claimed that the plaintiffs ‘‘did not follow his directions as to how they were to treat'' B during their visits. For example, the defendant did not want B to use a pacifier, but the plaintiffs did not comply with his request. On another occasion, the defendant apparently did not want Diane Boisvert to assist B with his shoe, but she did so anyway.

         At the evidentiary hearing on the plaintiffs' petition for visitation, Steven H. Humphrey, a licensed clinical psychologist, testified as an expert witness. Humphrey testified that the plaintiffs had been very involved as B's primary caretakers for twenty-two months of his young life while the defendant was incarcerated. In Humphrey's expert opinion, the plaintiffs both have a ‘‘ ‘warm and healthy bond' '' with B, who has maintained a sense of their importance in his life. Humphrey explained that the sudden death of B's mother was ‘‘very traumatic . . . and severely disruptive and long lasting'' for B and that the unexplained disappearance of the plaintiffs from B's life has compounded his sense of loss. Humphrey opined that the lack of contact between B and the plaintiffs ‘‘is very detrimental to [B] and would cause real and significant harm to [B]'' if allowed to continue. Humphrey further testified that depriving B of ‘‘individuals who have been in a caretaker capacity, who have helped bridge the difficulties caused by maternal death and paternal incarceration, and who are capable and eager to provide [B] with such support, would not be in his best interest, and there are reasons for concern that there would be significant psychological harm to cessation of these relationship[s].'' The trial court found Humphrey's in-court testimony, expert report, and expert opinions to be credible, ‘‘well thought out, appropriate, and reasonable.''

         Tracie Molinaro, the guardian ad litem appointed on behalf of B, also testified at the evidentiary hearing. In Molinaro's opinion, B has a ‘‘healthy relationship'' with the plaintiffs, whom he ‘‘adores and loves . . . .'' Molinaro testified that the plaintiffs hada regular and consistent relationship with B and that they had been actively involved in his day-to-day care, especially during the defendant's incarceration. Molinaro believed that B had a parent-like relationship with Diane Boisvert and that the denial of visitation would cause B real and signifi- cant harm. As for Thomas Boisvert, Molinaro testified that the relationship was healthy, loving and positive, but she did not believe that the relationship rose to the level of a parent-like relationship. In Molinaro's opinion, neither of the plaintiffs would undermine the defendant's role as a parent if visitation was ordered. The trial court found Molinaro's testimony to be ‘‘credible and consistent with the testimony of . . . Humphrey, with the exception of the maternal grandfather not having a parent-like relationship'' with B, which the trial court did not find to be correct.

         The trial court issued its written memorandum of decision on August 11, 2017. On the basis of the evidence adduced at the evidentiary hearing, the trial court found, by clear and convincing evidence, that the plaintiffs had a parent-like relationship with B and that a denial of visitation would cause B real and significant harm. The trial court explained: ‘‘This child is five years old. During his life, he has suffered the loss of his father as a result of his incarceration for approximately two years, being 40 percent of the child's life. [After] [t]he death of his mother on March 8, 2016, the cessation of any meaningful contact with his maternal grandparents for the last year as a result of the unilateral actions of the father is clearly harmful to the child. As . . . Humphrey articulated in his testimony and report, the death of the child's mother, compounded with the unexplained disappearance of the maternal grandparents, is very detrimental to the child and would cause real and significant harm to the child. . . . Humphrey also opined that disruptive relationships in the life of a child can have deleterious effects for the child, including mood problems, insecurity and problems with socialization and self-confidence. The death of the mother cannot be changed. The cessation of the child's contact with the maternal grandparents can be changed by the court. The father, in terminating a support for the child in the form of . . . consistent and loving figures in the life of the child, the maternal grandparents, is not acting in the best interest of the child. Contact with the child's mother's family provides a source of information to the child as to the mother that he no longer gets to see by virtue of her death. The emotional development of the child in dealing with the loss of his mother and the cessation of contact with the maternal grandparents clearly is harmful to the child and not in the best interest of the child. The court thereby, having found the existence of a parent-like relationship between the child and the maternal grandparents, also finds that the termination of that relationship does cause a real and significant harm to the child.''

         The trial court granted the plaintiffs' petition for visitation, awarding Diane Boisvert visitation ‘‘every other weekend from Friday at 5 p.m. until Sunday at 5 p.m., '' and Thomas Boisvert visitation ‘‘every Wednesday from the end of school each Wednesday, or noon if there is no school, until 8 p.m.'' The trial court also imposed the following terms and conditions on visitation: (1) ‘‘[t]he parties shall not disparage the other parties in the presence of the minor child''; (2) ‘‘[a]ll communication between the parties regarding visitation and/or the minor child shall be via text message or other written communication''; and (3) ‘‘[n]othing herein shall prohibit the parties [from] expanding the visitation for any specific visit as agreed by [the] parties in writing by the parties.''

         The defendant filed an appeal from the trial court's judgment. Shortly thereafter, the defendant also filed a postjudgment motion for order, pursuant to Practice Book § 25-24 (a), asking the trial court to enter an order requiring the plaintiffs to ‘‘allow no contact between [the] minor child [B] and a certain third party, Regina Riddell . . . .''[5] The defendant represented in his motion that he had ‘‘asked the plaintiffs to allow no contact between the minor child and . . . Riddell but that the plaintiffs ha[d] refused to give assurance that they [would] honor such request.'' The defendant argued that the plaintiffs' refusal to honor his request constituted a denial of his fundamental parental right to make decisions regarding B's care, control and associations. The trial court conducted a hearing on the defendant's motion at which the plaintiffs' counsel explained that the defendant's motion ‘‘stems from . . . Diane Boisvert, having her daughter living in her house, her daughter [Riddell] . . . is an adult, and it stems from the request that [Riddell] not be present for any of the visitation.'' The plaintiffs' counsel continued: ‘‘[T]here have been no documented concerns of any harm that would come to the child from [Riddell]. This was never brought up during the trial about [Riddell's] presence being a concern. And so this seems like an unreasonable request . . . .'' The defendant did not testify at the hearing and presented no evidence in support of his motion. The trial court denied the defendant's postjudgment motion on the ground that there was ‘‘not one scintilla of evidence to show that [B's contact with Riddell] is inappropriate, puts the child in any danger, or reduces the level of care.'' The trial court noted that ‘‘visitation is always an open issue, it's never cast in stone, '' and, if an order of visitation puts a child at risk or is not in a child's best interest, ‘‘then the court can always modify or terminate the visitation . . . .'' The trial court explained, however, that it was not otherwise ‘‘going to micromanage'' the visitation because ‘‘[there are] literally millions and millions of circumstances that may ultimately follow . . . .''

         The defendant subsequently filed a motion to reargue, contending that ‘‘it was irrelevant that the defendant failed to produce evidence to show the child could be harmed if the defendant's decisions were not complied with'' because the defendant is a fit parent whose decisions must be presumed to be in the best interest of his child. The defendant argued that ‘‘[t]he constitutional limitations [that] constrain the granting of third-party visitation orders necessarily apply with equal force to the terms and conditions of the visitation order itself, '' and, as such, the trial court is obligated to ‘‘craft orders [that] preserve, to the extent possible, a parent's fundamental right to make parenting decisions.'' (Emphasis in original.) The trial court denied the defendant's motion to reargue.

         The defendant then filed an application for an expedited public interest appeal from the trial court's denial of his postjudgment motions pursuant to General Statutes § 52-265a and Practice Book § 83-1. He contended that the trial court's failure to direct the plaintiffs to abide by his parental decisions regarding the care, control and custody of B violates § 46b-59 and the due process clause of the fourteenth amendment to the United States constitution. The application was granted by then Chief Justice Rogers. Thereafter, the defendant's direct appeal was transferred from the Appellate Court to this court pursuant to Practice Book § 65-1, and his direct appeal and his certified public interest appeal were consolidated for this court's review.

         While these appeals were pending, on January9, 2018, the defendant filed in the trial court a postjudgment motion to open and terminate visitation, claiming that a change in circumstances had divested the trial court of subject matter jurisdiction. The defendant informed the trial court that he had offered each of the plaintiffs what he considered to be meaningful visitation in the amount of a four hour visit each month plus a four hour visit on or near a major holiday, and argued that, in light of this offer, the trial court was divested of jurisdiction because there no longer was a denial of visitation that would cause real and significant harm to B under § 46b-59 (b). Two months later, on March 22, 2018, the plaintiffs filed a motion for contempt in the trial court, alleging that the defendant had refused to comply with the third-party visitation order on the basis of his offer of visitation, which ‘‘is very limited and outside of any court orders.'' The defendant moved to dismiss the motion for contempt for lack of subject matter jurisdiction. The trial court denied the defendant's postjudgment motion to open and terminate visitation, determining that the defendant's unilateral offer of visitation did not divest the trial court of ‘‘subject matter jurisdiction over the action at the time it rendered the underlying judgment and issued its memorandum of decision.''

         The trial court held a hearing on the plaintiffs' motion for contempt on July 18, 2018. On the morning of the hearing, the defendant filed a postjudgment motion to dismiss for lack of subject matter jurisdiction, again contending that his January 9, 2018 offer of visitation had divested the trial court of subject matter jurisdiction. At the hearing, the defendant argued that ‘‘nothing can be adjudicated today because of the motion I filed this morning seeking dismissal for a lack of subject matter jurisdiction.'' The trial court denied the defendant's motion to dismiss for lack of subject matter jurisdiction and also denied his motion to dismiss the plaintiffs' motion for contempt. On the merits of the contempt motion, the trial court heard testimony that court-ordered visitation had been refused for four months, which is ‘‘sixteen days of weekends, plus every single Wednesday . . . .'' On the basis of the evidence adduced at the hearing, the trial court found the defendant to be ‘‘in wilful contempt by clear and convincing evidence of the August 11, 2017 court orders and enter[ed] the following remedial orders: (1) The defendant shall pay the plaintiffs' [attorney's] fees in the amount of $1400. This amount shall be paid within thirty days. (2) The visitation which was previously ordered on August 11, 2017, shall resume immediately. The maternal grandmother's weekend visitation shall commence on July 20, 2018, and the maternal grandfather's Wednesday visitation shall commence on July 25, 2018. (3) In addition to the previously ordered visitation, the maternal grandmother shall have five days of continuous visitation with the minor child this summer. The dates shall be selected upon agreement of the parties. If the parties are unable to come to an agreement, the maternal grandmother shall have visitation with the minor child from August 13, 2018, through August 17, 2018.''

         On July 23, 2018, the plaintiffs filed a second motion for contempt, alleging that the defendant had ‘‘again refused visitation, '' even after being ‘‘ordered to resume visitation after being found in contempt . . . .'' The trial court conducted a hearing at which the plaintiffs testified that the defendant continued to refuse to permit them any visitation with B, despite the trial court's prior orders. Following the hearing, the trial court found, by clear and convincing evidence, that ‘‘the defendant had notice of the valid court orders both on August 11, 2017, and the subsequent court order of July 19, 2018, '' and had ‘‘wilfully failed to comply with the orders of the court, which are clear and unambiguous, by not providing the visitation in accordance with the court orders with the plaintiff Diane Boisvert [from] July 20 through [July] 22 of 2018, and the plaintiff Thomas Boisvert on July 25, 2018.'' The court found the defendant to be in wilful contempt and committed him to the custody of the Department of Correction. The trial court stayed its order of incarceration, however, pending compliance with the court's order of visitation.[6]

         The defendant filed an amended appeal in this court seeking review of the trial court's July 19, 2018 contempt order and the denial of his postjudgment motion to dismiss for lack of subject matter jurisdiction. The defendant's amended appeal was treated as an application for certification to file a public interest appeal pursuant to § 52-265a and Practice Book § 83-1, which was granted by Chief Justice Robinson. Thereafter, the parties filed supplemental briefs addressing the trial court's subject matter jurisdiction and the validity of the contempt order.

         The defendant raises the following claims in these consolidated appeals: (1) the trial court improperly denied the defendant's postjudgment motion to dismiss for lack of subject matter jurisdiction because it failed to make the requisite factual findings under Roth v.Weston, 259 Conn. 202, 789 A.2d 431 (2002); (2) the trial court's July 19, 2018 order of contempt is void for lack of subject matter jurisdiction; (3) the order of visitation violates the implicit requirements of ยง 46b-59 and the due process clause of the fourteenth amendment because it does not include, as a term and condition governing the visitation, a provision affirmatively directing the plaintiffs to abide by the defendant's decisions regarding B's care; (4) the order of visitation violates the defendant's fundamental parental rights under the due process clause because the amount of visitation is more than is necessary to further the state's compelling interest in sustaining ...


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