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 litems 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 plaintiffs support arrearage. We agree with the
defendants second and fifth claims and further conclude that
the defendants third claim is moot. Accordingly, we affirm
in part and reverse in part the courts judgment, and we
dismiss in part the defendants appeal.
The
following facts and procedural history are taken from the
courts 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 plaintiffs
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 childs 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
defendants 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 defendants
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
childs 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 plaintiffs
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 childs health
insurance premiums, $13,361 for tuition at the Whitby School
for the 2014-2015 school year, and the plaintiffs share of
all of the childs 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 childs 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 childs 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 childs 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 childs 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 litems] 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
...