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Thunelius v. Posacki

Court of Appeals of Connecticut

October 22, 2019

GERALD THUNELIUS
v.
JULIA POSACKI

          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 ...


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