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Peters v. Senman

Court of Appeals of Connecticut

October 29, 2019

MONICA PETERS
v.
NUMAN SENMAN

          Argued April 9, 2019

         Procedural History

         Application for custody of the parties' minor child, and for other relief, brought to the Superior Court in the judicial district of Tolland, where the court, Suarez, J., rendered judgment granting joint legal custody to the parties and primary physical custody to the defendant; thereafter, the matter was referred to the Regional Family Trial Docket at Middletown, where the court, Hon. Barbara M. Quinn, judge trial referee, denied in part the plaintiff's amended motion for modification of custody, dismissed the plaintiff's motions for a declaratory judgment and awarded attorney's fees to the defendant, and the plaintiff appealed to this court; thereafter, the court, Hon. Barbara M. Quinn, judge trial referee, denied the plaintiff's motion for articulation; subsequently, this court granted the plaintiff's motion for review of the denial of her motion for articulation and ordered the relief requested in part; thereafter, the plaintiff filed an amended appeal. Affirmed.

          Monica L. Syzmonik, self-represented, the appellant (plaintiff).

          Keller, Prescott and Harper, Js.

          OPINION

          KELLER, J.

         The self-represented plaintiff, Monica L. Peters, [1] appeals from the trial court's decisions denying, in part, her postjudgment amended motion for modification of custody and awarding attorney's fees to the defendant. The plaintiff also challenges the trial court's decision dismissing two motions she filed during the pendency of the custody modification proceedings, in which she sought a declaratory judgment that certain fundamental rights guaranteed by the United States constitution deprived the court of the authority to adjudicate parental custodial conflicts under the best interests of the child standard. On appeal, the plaintiff claims that the court (1) ‘‘[violated her] fourteenth amendment and other rights by terminating a portion of her rights under the Individuals with Disabilities Education Act (IDEA) [20 U.S.C. § 1400 et seq.] without conducting a fitness hearing''; (2) erred in concluding that she lacked ‘‘standing to request a declaratory judgment to adjudicate her constitutional rights as a fit parent, '' and violated her right to due process and abused its discretion by not ruling on her motions for declaratory judgment before trial commenced; (3) violated her and her child's rights under the first and fourteenth amendments to the United States constitution by failing to apply the proper balancing test under Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); (4) erred in awarding attorney's fees to the defendant, Numan Senman; (5) erred in failing to grant her motion for modification of custody; and (6) erred in using its own opinions to infringe on her ‘‘fundamental rights to her child, '' circumvented her due process right to cross examine the judge, and made clearly erroneous findings regarding her proposed orders and the needs of the child. We affirm the judgment of the court.

         The following facts, as found by the court, and procedural history are relevant to this appeal. The parties have never been married. The court previously awarded the parties joint legal custody of their minor son (child), and determined that his primary residence would be with the defendant. On October 22, 2015, the plaintiff filed a motion to modify the joint custody orders pertaining to the child, who has autism and was eight years old at the time of filing and ten years old by the time the hearing on the motion occurred. In her motion for modification, the plaintiff sought shared decision making by both parents and primary residence of the child with her because she claimed she resides in a school district better able to provide for his specialized needs. On November 7, 2016, the plaintiff filed an amended motion for modification that included allegations that the prior order as to custody infringed on the constitutional rights she had asserted in prior motions she filed seeking a declaratory ruling. In proposed orders dated February 2, 2017, the defendant noted his objection to the plaintiff's motions seeking a declaratory judgment and amended motion for modification. He also sought the clarification or removal of certain mediation orders in the original joint custody orders, supervised parental access for the plaintiff due to his concerns about her husband, and attorney's fees.

         A trial was held on February 15, 16 and 17, 2017. The court issued its decision on the plaintiff's motions for a declaratory judgment on April 6, 2017. It issued its decision on the plaintiff's motion for modification on April 7, 2017.

         In its decision on the motion for modification, the court noted that ‘‘[t]he matter of [the child's] primary residence has now been litigated by his never married parents three times since he was four years old. All hearings have been initiated by the plaintiff . . . . The first contested hearing began in late 2010 and ended with a decision on March 22, 2011, that awarded joint custody of [the child] to both parents, and primary residence to [the defendant]. There were orders regarding access, insurance, child support and tax exemptions. [The child's] best interests were found to be with continued stability in [the defendant's] care.

         ‘‘The second contested evidentiary hearing on the issue of [the child's] residential placement was conducted before Judge Holly Abery-Wetstone. It began with [the] plaintiff's motion seeking both equal decision-making privileges . . . and an equal parenting schedule. [On] October 21, 2013, the relief the plaintiff sought was denied, but changes to the earlier orders were made. Decision making was divided between the parties, with the [defendant] having final authority over issues of physical health, general welfare, extracurricular activities, religious upbringing and choice of school system. The [plaintiff] was awarded final decision-making authority relating to the treatment of [the child's] autism, as she has been a good advocate for him. The orders were clarified to state that she had no authority to change his school [and] provided for a mediation mechanism to resolve disputes. . . .

         ‘‘As noted, less than three years after the last fully contested hearing, a motion to modify, seeking essentially similar relief has been again filed by the plaintiff . . . .''

         The court considered this case as one of ‘‘high conflict'' since the parties first formed a relationship, a conflict that continued with respect to the child's care due to their very different parenting styles and inability to agree on most issues. ‘‘As noted by Judge Abery-Wetstone and apparent during the course of this trial, they have no effective means of coparenting or indeed communicating, largely because they have such differing viewpoints and personalities.''

         The court found that since the child was approximately two years old, he had remained without interruption in the defendant's care, with the plaintiff ‘‘coming in and out of his life as the parties reconciled or ended their relationship multiple times between 2006 to 2010.'' The child had resided in a home the defendant purchased since 2009 and had only known the Vernon school system. He is the only child in the defendant's home. The defendant has a flexible work schedule and is able to care for his son largely without assistance. The child has friends in the community and school. According to the defendant, the child is well supported by his individual education plan (IEP) and his teachers, a one-on-one paraprofessional and the defendant, who regularly supervises his school work, and is doing well academically.

         The court stated that despite the plaintiff's dissatisfaction with the child's plan for transitioning to middle school in Vernon, ‘‘by history and current testimony, routine, stability and predictability of his living situation have been provided to [the child] primarily by [the defendant] for most of this child's life.'' The court noted that the plaintiff asserted that her changed living circumstances, her marriage and the birth of her daughter by her new husband are all changes in circumstances that supported her quest for a change in the child's primary residence, but considered most of these changes to be personal to the plaintiff and not based on events in the child's life. The plaintiff's two major claims were that her life had changed dramatically since she was last before the court regarding custody and that her son's low test scores were proof that his current school system is inadequate.

         The court found the plaintiff's claims as to the unsuitability of his current schooling in Vernon were unsupported by any evidence about what could be expected of the child, in light of his age and special needs as a child with autism. The plaintiff produced no expert testimony, and the court noted that ‘‘[o]utcome does not prove causation'' because school performance, especially for an autistic child, is only one of a multitude of factors that could have brought about such results. The court also noted that the plaintiff failed to present any evidence that the Glastonbury school system would provide the child with a better education.[2]

         The court agreed with the defendant that a change of residence for the child was something that the plaintiff wants for herself to prove she is an adequate parent. It concluded that the plaintiff had an unwillingness to take into account the details of the child's daily life, nor was she able ‘‘to provide a nuanced account of [the child] in her demand for a change of his residence. His connections to the [Vernon] community in which he has grown appeared to have no relevance to her, nor the stability that he has had where he now resides. The plaintiff did not appear to carefully consider what might be best for him, even if it went counter to her own desires.''

         The court found that the plaintiff believes that because she had not been previously found to be an unfit parent, she is entitled to equal time with and responsibility for the child. The court noted, however, that the plaintiff's lack of fitness or fitness as a parent was not the crux of the issue before the court. ‘‘Many children caught up in custody disputes are fortunate to have two fit parents, as these parents each appear to be. But for the court, it is what is in [the child's] best interests that must be considered. Fitness is but one of the many criteria to be considered. As our Supreme Court many years ago concluded . . . ‘[i]n the search for an appropriate custodial placement, the primary focus of the court is the best interests of the child . . . .'''

         The court found fault with both parents, but concluded that the defendant had ‘‘been the parent who has most reliably cared for [the child] and rearranged his life to provide for the stability and predictability of care both parents agree [the child] needs. There has been no change in [the defendant's] commitment for many years.''

         The court noted its concerns about the plaintiff, indicating that ‘‘[h]er myopic view of the superior quality of her new family life as the only valid outlook raises questions in the court's mind about what her conduct towards her son might be in the future, should her son reside with her. As he ages, [the child's] own behavior and outlook, which reflect similarities to those of [the defendant], are likely to conflict with those of [the plaintiff]. . . . Also, what would his integration in her family life be like, as it includes a young half-sister, and two older children of her husband who visit from time to time, as well as the plaintiff's new husband? While the plaintiff points to the fact that [the child] enjoys his visit with her and her new family, visits are different from a more permanent residence with reduced access to [the defendant]. Whatever else can be said about it, the court finds that the plaintiff's household is not a quiet household where the focus is only on [the child] with established and clear patterns of daily living.''

         The court also found that the defendant had some valid concerns about the plaintiff's new husband but declined to order only supervised access by the plaintiff. In assessing the validity of the defendant's concerns, the court took judicial notice of a trial court memorandum of decision in the case of Szymonik v. Szymonik, Superior Court, judicial district of Hartford, Docket No. FA-06-4027147-S (January 6, 2017). The court noted that that decision, which involved a postdissolution motion for modification filed by the plaintiff's husband regarding his children, recited ‘‘concerning conduct and behavior.'' In particular, the court noted that the decision ‘‘details some questionable parenting on Mr. Syzmonik's part and an appalling lack of sensitivity to his children's emotional needs in his own high-conflict custody case.''

         Much of the evidence presented at trial reflected the parties' difficulty to reach an agreement concerning issues involving the child, as well as the problems encountered by the parties surrounding their physical exchanges of the child for visits. The court found that in the past, the plaintiff has ‘‘been unable to return the child promptly or to pick him up without incident. Those difficulties have lessened since her new husband provides the transportation, although his conduct has also caused some difficulties. Nonetheless, these facts do point to [the] plaintiff's historical issues with routine and predictability. Shifting the responsibility for punctuality to a third party does not address her need to demonstrate that she can provide routine and predictability herself. The plaintiff's proposed plan would increase the physical exchanges of the child between the parents. In formulating her plan, it is apparent that she did not consider how the increased changes in his routine would impact [the child].''

         The court added, ‘‘[t]hat [the plaintiff] loves and wishes the best for her son is not in question. It is the methods by which she seeks that outcome which rather sharply outline what the court views as her deficits as a parent. The same dismissive and condescending pattern of conduct towards the defendant continues in her attempts to mediate all orders with the defendant, including those which were specifically stated in the decree. She simply would not accept the defendant's refusal to mediate established orders and actively blames him for what she sees as his ‘failure.' She cannot appreciate her own failure to proceed in a reasonable manner to resolve disputes. The orders entered in 2013 very explicitly set forth those matters which are to be mediated and those which are ordered, a distinction apparently not clear to the plaintiff.''

         After considering all the relevant statutory criteria set forth in General Statutes § 46b-56 and the best interests of the child factors as articulated in the case law, the court found that the best interests of ‘‘this special needs child'' are served by remaining in the primary residential care of the defendant, as previously ordered.

         The court denied the plaintiff's motion to modify the child's primary residence and for an equal sharing of time. It also denied the defendant's claim for supervised access by the plaintiff and removed the mediation provisions in the prior court order as unworkable. It further awarded attorney's fees of $3500 to the defendant. Attached to the court's decision was a Schedule A, which contained the court's parental access orders and other various provisions regarding each parties' decision-making authority, [3] including, inter alia, a parenting schedule, orders pertaining to the child's extracurricular activities, sharing information as to the child, communication and parenting guidelines, and various transportation and relocation orders.

         The court also ordered that future motions to modify would not be entertained without leave of the court and unless six coparenting counseling sessions have been completed in good faith by the parties with a provider of their own choosing, although no coparenting sessions were otherwise ordered.

         On April 12, 2017, the defendant filed a motion for articulation, which the court granted on April 28, 2017, making a minor change to permit the parties to alternate time with the child during the annual April school spring break. On April 25, 2017, the plaintiff filed a motion for reconsideration of the court's April 6, 2017 decision on her request for a declaratory judgment, which the court summarily denied on April 28, 2017. On April 26, 2017, the plaintiff filed a motion for reconsideration, to vacate and ‘‘to uphold constitutional rights.'' The court denied this motion on April 28, 2017. On May 5, 2017, the plaintiff filed a motion for clarification regarding child support. The court issued a clarification order on May 9, 2017, indicating that any matters concerning child support were never referred to the Regional Family Trial Docket in the judicial district of ...


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