Argued
May 16, 2019
Procedural
History
Application
for custody of the parties' minor child, brought to the
Superior Court in the judicial district of Stamford-Norwalk
and tried to the court, Tindill, J.;
judgment awarding sole legal and primary physical custody to
the plaintiff, and issuing certain orders; thereafter, the
court, Heller, J., issued certain orders,
and the defendant appealed to this court. Appeal
dismissed in part; judgment reversed in part;
judgment directed in part.
Samuel
V. Schoonmaker IV, with whom, on the brief, was Wendy Dunne
DiChristina, for the appellant (defendant).
Alexander J. Cuda, for the appellee (plaintiff).
Lavine, Keller and Bishop, Js.
OPINION
BISHOP, J.
In this
protracted, high conflict custody and support matter, the
defendant mother, Julia Posacki, appeals from the judgment
rendered by the trial court following a sixteen day trial on
the custody action filed by the plaintiff father, Gerald
Thunelius. On appeal, the defendant claims that the court
improperly (1) delegated its decision-making authority to the
guardian ad litem appointed for the parties' minor child,
(2) ordered that the prevailing party in any postjudgment
dispute adjudicated by the court after unsuccessful mediation
with the guardian ad litem be reimbursed by the other party
for his or her share of the guardian ad litem's fees, (3)
appointed the guardian ad litem without having complied with
the requirements of General Statutes §§ 46b-54 and
46b-12, (4) issued a protective order sua sponte, (5) ordered
the parties to enroll the child in private school through
high school and to share the payments for that schooling, (6)
relied on unsupported net income figures on the child support
guidelines worksheet prepared by the Judicial Branch, and (7)
retroactively modified a pendente lite child support order by
effectively forgiving the plaintiff's support arrearage.
We agree with the defendant's second and fifth claims and
further conclude that the defendant's third claim is
moot. Accordingly, we affirm in part and reverse in part the
court's judgment, and we dismiss in part the
defendant's appeal.
The
following facts and procedural history are taken from the
court's memorandum of decision or are part of the
record.[1] The parties, who never married one
another, are the parents of a minor child who was born on
November 2, 2010. On April 18, 2012, the plaintiff filed an
application seeking sole custody of the child, who had been
living with the defendant since his birth. The plaintiff also
filed motions for pendente lite orders to establish a
parenting plan, to appoint a guardian ad litem for the child,
and for child support.
At a
status conference held on June 20, 2012, the plaintiff's
counsel recommended several attorneys for possible
appointment as a guardian ad litem for the child, including
Attorney Jocelyn B. Hurwitz. The defendant opposed appointing
a guardian ad litem, but her attorney agreed that Hurwitz
would be an acceptable choice should the court choose to
appoint one. At the conclusion of the status conference, the
court, Novack, J., issued an oral pendente lite
order appointing Hurwitz as guardian ad litem for the child.
The court did not specify Hurwitz' duties or the length
of her appointment.
On
October 15, 2012, the court, Schofield, J., approved
the parties' pendente lite parenting agreement, pursuant
to which the parties were to have joint legal custody of the
child, with the defendant having primary physical custody and
the plaintiff having parenting time every other weekend and
some holidays and vacations. Subsequently, on October 2,
2013, the court, Emons, J., accepted the
parties' stipulation regarding pendente lite financial
orders. Pursuant to the pendente lite financial orders, the
plaintiff was required to pay the defendant $389 in weekly
child support and was required to provide medical and dental
insurance for the child if available through his employer. As
to the child's unreimbursed medical expenses, qualified
child care expenses, and tuition and costs for the Whitby
School through June, 2014, the plaintiff was responsible for
52 percent, and the defendant was responsible for 48
percent.[2]
On
February 24, 2014, the defendant filed a motion seeking to
hold the plaintiff in contempt for violating the pendente
lite financial orders. She alleged that the plaintiff had
failed and refused to reimburse her for his share of child
care costs in the amount of $4309. She further alleged that
the plaintiff unilaterally had re enrolled the child at the
Whitby School for the 2014-2015 school year without the
defendant's consent in violation of the pendente lite
parenting plan and that he had informed her that he intended
to deduct from his child support payments the defendant's
share of the tuition. The defendant, therefore, requested
that the court order the plaintiff to reimburse her for the
child care costs, to refrain from making deductions to his
child support obligation, and to pay 100 percent of the
child's tuition for the Whitby School for the 2014-2015
school year. Subsequently, on May 15, 2014, the plaintiff
filed a motion to modify his support obligations under the
2013 pendente lite financial orders, citing a substantial
change in circumstances.
A trial
to the court, Tindill, J., on the plaintiff's
custody application was conducted over the course of sixteen
days between February, 2015 and October, 2016. In her
proposed claims for relief filed on September 7, 2016, the
defendant sought reimbursement from the plaintiff of $31, 586
for child care expenses, $7117 for the child's health
insurance premiums, $13, 361 for tuition at the Whitby School
for the 2014-2015 school year, and the plaintiff's share
of all of the child's medical expenses incurred since
October 2, 2013.
On June
29, 2017, the court issued a memorandum of decision finding
that the plaintiff had rebutted, by a preponderance of the
evidence, the presumption of joint legal custody under
General Statues § 46b-56a.[3]The court, therefore, ordered that
the plaintiff have sole legal custody and primary physical
custody of the child, with parenting time for the defendant,
and that the defendant pay the plaintiff $241 in weekly child
support in accordance with the Connecticut child support
guidelines. The court further ordered that,
‘‘[g]iven the likelihood of appeal, the court,
sua sponte, hereby enters a protective order pending any
potential appeal to secure the award of sole custody to the
plaintiff and parenting time for the defendant. The court, in
consideration of the child's best interests, intends this
protective order to offer as smooth as possible a transition
for the child, under the circumstances, in the immediate
postjudgment period.''
As to
the child's education, the court ordered that the child
‘‘shall attend the Whitby School until he
completes the [eighth] grade or the parties' written
stipulation to change schools is approved and made an order
of the court, whichever occurs first'' and that
‘‘[t]he parties shall split the cost, beginning
the 2017-2018 academic year, of Whitby School or other
private school education 56 [percent] (plaintiff) [and] 44
[percent] (defendant) through [twelfth] grade.'' The
court noted, however, that there was insufficient evidence
presented for it to issue an educational support order for
the child's education beyond high school pursuant to
General Statutes § 46b-56c.
The
court further ordered that Hurwitz ‘‘shall
continue to serve as guardian ad litem . . . for the minor
child until further order of the court.'' The court
also ordered in relevant part that ‘‘[t]he
parties shall work to resolve any dispute or conflict
regarding the minor child by mediation first with the
[guardian ad litem] prior to filing a motion with the court.
The cost and fees associated with mediation of postjudgment
disputes with the [guardian ad litem] shall be split equally
(50/50) by the parents. In the event that a motion is filed
and litigated after unsuccessful resolution with the
[guardian ad litem] of the dispute or issue regarding the
minor child, the party who prevails in court shall be
reimbursed his/her 50 [percent] for the [guardian ad litem]
fees by the other party within one week of the court order
resolving the dispute or issue.'' In reappointing
Hurwitz as guardian ad litem, the court did not make an
express finding that the appointment was in the child's
best interests as required by § 46b-54 (a); nor did it
give the parties an opportunity to agree on a different
person to serve in the role as required by § 46b-12 (a).
The court also did not issue a subsequent order that included
all of the information required by § 46b-12 (c).
Additionally,
the court ordered the parties ‘‘to work with Dr.
David Bernstein, who shall serve as a coparenting
counselor/coordinator, until further order of the court. . .
. In the event Dr. Bernstein is not available to work with
the parties as a coparenting counselor/ coordinator, the
[guardian ad litem] shall offer the parties no less than
three options for a coparenting counselor/coordinator in
writing no later than July 31, 2017. The options presented
for the coparenting counselor/ coordinator shall be based on
the [guardian ad litem's] own independent research and
work on behalf of her ward . . . . The parties shall notify
the [guardian ad litem], in writing, no later than one week
from receipt of the options of their choice . . . from the
coparenting counselor/coordinator options. In the event the
parties do not agree on one of the coparenting
counselor/coordinator options, or do not agree in writing
within one week (without good cause as determined by
[guardian ad litem]), the [guardian ad litem] shall select
and notify the coparenting counselor/coordinator of her
choice.''
The
court also ruled on several of the parties' unresolved
motions, including the plaintiff's May 15, 2014 motion to
modify his pendente lite support obligations. The court
granted this motion and ordered that the plaintiff's
child support obligation would terminate as of July 1, 2017,
when the defendant's support obligation began. The court
did not, however, rule on the defendant's February 24,
2014 motion for contempt. Nor did the court make any findings
or issue any orders regarding any claimed arrearages. This
appeal followed.
I
The
defendant first claims that the court improperly delegated
its authority to the guardian ad litem when it
‘‘defined the duties and responsibilities of the
[guardian ad litem] . . . .'' We are not persuaded.
‘‘[W]hether
the court improperly delegated its judicial authority
presents a legal question over which we exercise plenary
review.'' Zilkha v. Zilkha, 180
Conn.App. 143, 170, 183 A.3d 64, cert. denied, 328 Conn. 937,
183 A.3d 1175 (2018). ‘‘It is well settled . . .
that [n]o court in this state can delegate its judicial
authority to any person serving the court in a nonjudicial
function. The court may seek the advice and heed the
recommendation contained in the reports of persons engaged by
the court to assist it, but in no event may such a
nonjudicial entity bind the judicial authority to enter any
order or judgment so advised or recommended. . . . A court
improperly delegates its judicial authority to [a nonjudicial
entity] when that person is given authority to issue orders
that affect the parties or the children. Such orders are part
of a judicial function that can be done only by one clothed
with judicial authority.'' (Internal quotation marks
omitted.) Kyle S. v. Jayne K., 182
Conn.App. 353, 371-72, 190 A.3d 68 (2018).
The
defendant argues that ‘‘[t]he court has made the
[guardian ad litem] a permanent governmental presence in the
life of the child and the parents and has granted [the
guardian ad litem] decision-making authority in some of the
fundamentals of their parenting.'' Specifically, the
defendant notes that, pursuant to the court's orders, the
guardian ad litem is (1) to hold the child's passport,
(2) to have access to all family communications through
OurFamilyWizard, [4] (3) to receive copies of the child's
telephone bill, (4) to investigate facts, (5) to make
recommendations as to what is in the child's best
interests, (6) to mediate the parties' disputes, (7) to
act as final arbiter in the selection of a coparenting
counselor/coordinator for the parties, and (8) to testify in
court if the parties are unable to resolve a dispute in
mediation.[5] Contrary to the defendant's
suggestion, none of these duties amounts to an improper
delegation of the court's authority. In sum, the breadth
of tasks assigned to the guardian ad litem reflects the
court's confidence in the commitment and talent of the
guardian ad litem, and the court's desire to minimize the
effect of the parties' toxic parenting relationship on
their child and to discourage them from heedless and
incessant litigation over matters that should not require
judicial intervention.
Moreover,
requiring that the guardian ad litem hold the child's
passport, monitor the parties' communications, review the
child's telephone bill, investigate facts, make
recommendations, mediate disputes, and testify in court in no
way empowers the guardian ad litem ‘‘to issue
orders that affect the parties or the [child].''
(Emphasis added; internal quotation marks omitted.) Kyle
S. v. Jayne K., supra, 182 Conn.App. 371.
Indeed, as recognized by the Judicial Branch in a publication
developed pursuant to General Statutes § 46b-12a,
[6] a
guardian ad litem may be asked by the court to
‘‘[i]nvestigate facts, ''
‘‘[r]eview files and records, ''
‘‘[p]articipate in court hearings, ''
‘‘[m]ake recommendations to the court, ''
and ‘‘[e]ncourage settlement of
disputes.'' Judicial Branch, State of Connecticut,
‘‘Guardian Ad Litem or Attorney for Minor Child
in Family Matters'' (June, 2014), available at
https://www.jud.ct.gov/Publications/ FM224.pdf (last visited
October 17, 2019).[7]
We
conclude, as well, that although the court's order does
empower the guardian ad litem to select a coparenting
counselor/coordinator should the parties disagree on whom to
select, this does not constitute an improper delegation of
judicial authority because the coparenting
counselor/coordinator, in turn, has no delegated decisional
authority from the court. As our Supreme Court has
recognized, ‘‘conflicts frequently develop over
relatively minor decisions relating to the day-to-day
upbringing and support of minor children, conflicts which in
reality reflect little more than a difference of opinion or
preference between sometimes hostile parties. . . . Frequent
litigation of these minor disagreements leads to frustrating
court delays . . . and, because of the adversarial nature of
traditional court proceedings, can work to heighten tensions
and engender further conflict. . . . Where the issues
involved do not themselves impact directly on the child's
best interests, judicial resolution of each disagreement has
been characterized as burdensome and
counterproductive.'' (Citations omitted.) Masters
v. Masters, 201 Conn. 50, 66, 513 A.2d 104
(1986). Thus, where the parties' dispute represents a
mere ‘‘difference of opinion about fundamentally
acceptable choices''; id., 69; such dispute does not
‘‘so implicate the best interests of the children
as to require a judicial decision . . . .''
Id. In the present case, any dispute regarding the
selection of a coparenting counselor/coordinator reflects
little more than a difference of opinion or preference
between the parties and does not so implicate the best
interests of the child as to require judicial resolution of
the matter. Consequently, the court's order authorizing
the guardian ad litem to select a coparenting
counselor/coordinator in the absence of an agreement between
the parties did not amount to an improper delegation of
judicial authority.
In sum,
we conclude that the trial court did not improperly delegate
its authority to a nonjudicial entity in defining the duties
and responsibilities of the guardian ad litem.
II
The
defendant also claims that the court improperly ordered that
the prevailing party in any postjudgment dispute adjudicated
by the court after unsuccessful mediation with the guardian
ad litem be reimbursed by the other party for his or her
share of the guardian ad litem's fees. The defendant
argues that this order constitutes an improper delegation of
the court's authority to decide whether to sanction the
parties. The defendant also appears to argue that the order
is improper because it provides for automatic sanctions
without taking into account the parties' current
financial circumstances or making a finding that the losing
party's position was totally without color and taken in
bad faith. We disagree that this order amounted to an
...