Thunelius v. Posacki

         Argued May 16, 2019

         Appeal from Superior Court, Judicial District of Stamford-Norwalk at Stamford, Erika M. Tindill, J.

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          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.

         [193 Conn.App. 669] 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 [193 Conn.App. 670] 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.

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          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 [193 Conn.App. 671] 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 reenrolled 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 [193 Conn.App. 672] joint legal custody under General Statues § 46b-56a.^[3] The court, therefore, ordered

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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 [193 Conn.App. 673] 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 ...