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Dufresne v. Dufresne

Appellate Court of Connecticut

July 30, 2019

Gerald E. DUFRESNE, Jr.

         Argued April 11, 2019

Page 1260

         Appeal from Superior Court in the judicial district of Windham at Putnam and tried to the court, Fuger, J.

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

         Lavine, Elgo and Pellegrino, Js.


         LAVINE, J.

         [191 Conn.App. 534] 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

Page 1261

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 [191 Conn.App. 535] 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. [191 Conn.App. 536] 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

Page 1262

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. [191 Conn.App. 537] 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 [191 Conn.App. 538] date of some of the defendant’s supervised visits with the child, the plaintiff arranged playdates 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, Hempel 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 ...

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