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Dufresne v. Dufresne

Court of Appeals of Connecticut

July 30, 2019


          Argued April 11, 2019

         Procedural History

         Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Windham at Putnam and tried to the court, Fuger, J.; judgment dissolving the marriage and granting certain other relief; thereafter, the court, A. dos Santos, J., granted the defendant's motion to modify visitation, and denied the plaintiff's motions for attorney's fees and for an order to require the defendant to request leave of the court prior to filing certain motions, and the plaintiff appealed to this court; subsequently, the court, A. dos Santos, J., issued an articulation of its decision. Reversed; further proceedings.

          Campbell D. Barrett, with whom were Johanna S. Katz and, on the brief, Jon T. Kukucka, for the appellant (plaintiff).

          Lavine, Elgo and Pellegrino, Js.


          LAVINE, J.

         In this postdissolution appeal, the plaintiff, Lisa A. Dufresne, [1] appeals from the judgment of the trial court granting the motion to modify visitation with the parties' minor child (motion to modify) filed by the self-represented defendant, Gerald E. Dufresne, Jr. On appeal, the plaintiff claims that, in granting the motion to modify, the court improperly (1) concluded that it was not in the child's best interests to continue counseling with her therapist and terminated the relationship, and (2) failed to credit the testimony of a family relations counselor.[2] We reverse the judgment of the trial court.

         The following facts and procedural history as disclosed by the record are relevant to this appeal. The parties were married on October 14, 2006. Their only child, a daughter, was born in January, 2008. The plaintiff commenced an action to dissolve the marriage on March 24, 2010. She also filed a motion requesting that the matter be referred to ‘‘family relations'' and that a guardian ad litem be appointed for the child.[3] On September 1, 2010, the parties entered into an agreement whereby the plaintiff relocated to Chicopee, Massachusetts. The parties agreed to joint legal custody of the child and that the issue of the child's primary residence was to be evaluated by the Family Relations Office (family relations) of the Court Support Services Division of the Judicial Branch.[4] The parties also agreed to a visitation schedule. On October 27, 2010, the defendant agreed to pay the plaintiff child support.

         The trial court, Fuger, J., dissolved the parties' marriage on April 29, 2011. Pursuant to the divorce decree, the parties were granted joint legal custody of the child, and the child's residence was ‘‘shared.'' The parties entered into an extensive and detailed parenting plan that provided for shared parenting time with the child.

         On January 9, 2015, the matter was referred to family relations for a comprehensive evaluation. On July 6, 2015, the plaintiff filed a motion for modification of visitation and parenting time. Following a hearing held on July 29, 2015, the court, Graziani, J., granted the plaintiff sole legal custody of the child. The child was to continue in counseling, and the parties were to participate in the child's counseling as the therapist recommended. The defendant was to visit with the child as mutually agreed by the parties, and the parties were to use the Family Wizard program[5] to communicate.

         On August 10, 2016, the defendant filed a ‘‘Motion to Open and Modify Access, Postjudgment, '' alleging that despite the court's order of July 29, 2015, that he have ‘‘access'' to the child by mutual agreement, the plaintiff had not allowed him to have access to the child since October 15, 2015, and had not allowed telephone contact between him and the child since January 13, 2016.

         On the same day, he also filed a motion for contempt in which he made the same allegations. By order dated October 5, 2016, the court, A. dos Santos, J., denied the motion for contempt and issued the following orders: the defendant shall have supervised visitation at the supervision agency, Kids Safe; the parties shall reactivate their Family Wizard accounts, and cooperate and communicate through this medium or a different medium by mutual agreement; the matter shall be referred to family relations to monitor supervised visitation, and the parties shall cooperate with family relations; the plaintiff shall encourage the child to participate in visits with the defendant; and visits must be consistent and scheduled by the parties on a regular basis.

         On August 30, 2017, the defendant filed the motion for modification that underlies the present appeal.[6] In his motion, the defendant alleged that he had been denied visitation and phone communication with the child. On September 14, 2017, the plaintiff filed a motion for an order requiring that the defendant request leave of the court before filing further orders for modification of custody or visitation. She also filed a motion for attorney's fees, postjudgment.

         Judge dos Santos held a hearing on the parties' motions on October 18 and November 15, 2017. The plaintiff was represented by counsel; the defendant was self-represented. The court issued a memorandum of decision on March 12, 2018. The court found that after the October 5, 2016 hearing, family relations arranged for the defendant and the child to visit at the Access Agency on five occasions. The defendant testified that his visits with the child were positive for him and the child. He also testified that he had helped to rear the child from birth and had a good relationship with her. He was emotional when he saw the child after not having seen her for approximately two years. The defendant admitted that on one occasion he brought photographs to share with the child, which was not permitted by the agency. After realizing his mistake, the defendant returned the photographs to his motor vehicle. He also brought hot chocolate for the child, which also was not permitted during visits. The defendant became upset and exchanged words with Access Agency staff, but not in front of the child. The defendant has anger issues. According to the defendant, he was happy to see the child, and she was happy to see him. They spoke and played games together. The child appeared to be comfortable with him.

         The court found that, following the supervised visits, Access Agency staff produced a written report, which was not introduced into evidence. The family relations counselor, Nicole Stutz, who arranged for the supervised visits, read from the report during her testimony at the hearing on the parties' motions. The court stated that the assertions contained in the report were not subject to cross-examination because none of the individuals involved in the supervised visits came to court to testify as to their observations.

         Following the five supervised visits, the parties agreed to transfer the matter to the Transitions in Parenting program, and the court entered orders in connection with the parties' agreement. A clinical social worker, Gregg LePage, met with the parties and the child, and issued a report. The report was not entered into evidence, but Stutz testified as to the contents of the report. LePage did not testify.

         The court observed that the plaintiff did not testify at the hearing, and, therefore, the court did not hear her concerns for the child or about communication she may have had with the child about the visits. On the date of some of the defendant's supervised visits with the child, the plaintiff arranged play dates for the child at the conclusion of the visit.

         The court found that the child's therapist, Patricia Hempel, has counseled the child once a week since September or October, 2015. On three occasions, Hem-pel utilized Trauma Forensic Cognitive Behavior Therapy, whereby the child essentially must relive the event when the defendant was taken away in an ambulance after he had expressed suicidal ideation. During the event, the defendant told the plaintiff to come for the child because he believed that he was not capable of taking care of her. Since then, the defendant has received counseling and is fully compliant with his prescribed medications. As a veteran, he counsels other veterans who suffer post-traumatic stress disorder, and he is in the company of children whose ‘‘parent veteran'' has post-traumatic stress disorder. Hempel testified that it is not in the child's best interests to have contact with the defendant at the present time, including telephone contact. In addition, she opined that the child should not have further contact with the defendant until the child is twenty-three years old when her brain is fully developed.[7] The court disagreed with Hempel's opinion.

         Prior to issuing its orders regarding the defendant's motion to modify, the court discussed the legal principles guiding its analysis. ‘‘The court has continuing jurisdiction over a custody decree . . . and the noncustodial parent retains the option to move to modify custody based on a substantial change in circumstances affecting the welfare of the children.'' (Citation omitted.) Cookson v. Cookson, 201 Conn. 229, 236, 514 A.2d 323 (1986). ‘‘The burden is on the party seeking modification to show the existence of a substantial change in circumstances.'' (Internal quotation marks omitted.) Jaser v. Jaser, 37 Conn.App. 194, 204, 655 A.2d 790 (1995). A material change in circumstances must be based on circumstances that have arisen since the prior order of custody. ‘‘If such a material change is found, the court may then consider past conduct as it bears on the present character of a parent and the suitability of that parent as custodian of the child.'' Simons v. Simons, 172 Conn. 341, 342-43, 374 A.2d 1040 (1977). The court must make the necessary findings that a change of custody would be in the best interest of the child. See Hibbard v. Hibbard, 139 Conn.App. 10, 21, 55 A.3d 301 (2012).

         The court found that the defendant suffers from post-traumatic stress disorder and the effects of Lyme disease. He has received counseling and takes prescribed medications for post-traumatic stress disorder. He counsels fellow veterans regarding post-traumatic stress disorder and is, at times, in the presence of children. The court, therefore, found that there were changed circumstances.[8]

         The court also found that during the incident in which the defendant experienced suicidal ideation, he recognized his illness and asked the plaintiff to come for the child. The child saw the defendant taken away by ambulance. The court was not convinced that the defendant presents a danger to the child. The court opined that Hempel ‘‘is doing more damage than helping the child. She continues to reinforce the traumatic event with the child by repeating the event when the defendant went by ambulance to the hospital.'' Although it had not been asked to do so, the court concluded that it is not in the best interests of the child to continue counseling with Hempel.

         Moreover, the court found that following a hearing on October 5, 2016, it had ordered the defendant to see the child at Access Agency. Although the court had ordered that the visits be consistent and scheduled by the parties on a regular basis, the defendant has seen the child only five times. The intent of the October 5, 2016 order was not to limit the defendant's access to the child to five occasions.

         The court also found that the plaintiff did not testify during the hearing[9] but that she relied on hearsay and double hearsay testimony from Stutz to justify denying the defendant access to the child in the future. It noted that ‘‘[h]earsay means a statement, other than one made by the declarant while testifying at the proceeding, offered in evidence to establish the truth of the matter asserted.'' (Internal quotation marks omitted.) Walker v. Housing Authority, 148 Conn.App. 591, 600, 85 A.3d 1230 (2014). Hearsay is generally inadmissible. See Conn. Code Evid. ยง 8-2. The reason for the hearsay rule is because hearsay ...

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