Pascal v. Pascal, s. 2404

CourtAppellate Court of Connecticut
Citation2 Conn.App. 472,481 A.2d 68
Decision Date28 August 1984
Docket Number2471,Nos. 2404,s. 2404
PartiesLinda J. PASCAL v. Charles J. PASCAL.

Louis I. Gladstone, Bridgeport, with whom, on the brief, were Matthew B. Woods and David S. Rutkin, Bridgeport, for appellant-appellee (plaintiff).

Ernest C. LaFollette, Monroe, for appellee-appellant (defendant).

Before DANNEHY, C.P.J., and DUPONT and BORDEN, JJ.

DUPONT, Judge.

These two appeals 1 concern various orders made subsequent to the dissolution of the marriage of the parties. When the marriage was dissolved, custody of the two minor children of the plaintiff and the defendant was awarded to the plaintiff wife. The issues on appeal stem from the battle of the parties over the rights of visitation granted to the defendant, and from the amount of child support to be paid by him. One appeal concerns the plaintiff's claim that the trial court erred in ordering psychiatric treatment for one of the minor children. In the other appeal, 2 the defendant claims error of the trial court (1) in awarding an increase in child support payments, (2) in finding him in contempt, (3) in awarding counsel fees to the plaintiff to defend the appeal, and (4) in refusing to erase material in his civil court file relating to previously dismissed criminal charges.

I

The orders relating to custody were modified several times between the date of the dissolution and January 25, 1982, at which time the defendant was granted reasonable rights of visitation as long as the visits with his children were held at the plaintiff's residence in the presence of other family members. In May of 1982, the defendant filed a motion for modification of visitation rights in which he sought to visit the children outside of the plaintiff's home. The matter was referred to a domestic relations officer who recommended that visitation be confined to the plaintiff's residence and that one of the minor sons and the defendant undergo therapy. 3 The court reserved judgment on the motion for modification but, in accordance with the recommendation, ordered the minor son and the defendant to obtain "therapy in a number of sessions as is felt to be useful by the doctor in question." 4

The purpose of the order was to improve the father-son relationship and to provide the court with useful information for the resolution of visitation rights. In a memorandum of articulation, the court stated: "Without the benefit of a complete investigation, including a psychiatric evaluation and therapy if required, the Court will not be in a position to determine if there has been a material change in circumstances since the prior court order issued on January 25, 1982. No meaningful hearing can be held on this issue without the benefit of expert medical evidence." The plaintiff's motion to vacate the order requiring therapy for her son was denied and the plaintiff appealed.

The merits of the plaintiff's appeal cannot be determined without first deciding whether jurisdiction of the appeal exists. The defendant contends that such an order is not a final judgment from which an appeal properly lies.

The right of appeal is purely statutory and is accorded only if the conditions fixed by statute and the rules of court are met. State v. Audet, 170 Conn. 337, 341-42, 365 A.2d 1082 (1976); Howarth v. Northcott, 152 Conn. 460, 462, 208 A.2d 540 (1965). An appeal may only be taken from a final judgment. General Statutes § 52-263; Practice Book § 3000. The Supreme Court has not used only one standard to determine that quantum of finality which is basic to a right of appeal. An order or action of a trial court is a final judgment for the purposes of an appeal if it either terminates a separate and distinct proceeding or concludes the rights of the parties so that further proceedings cannot affect them. 5 State v. Longo, 192 Conn. 85, 89, 469 A.2d 1220 (1984). It is the effect rather than the nature of the order or judgment which is critical in determining whether a matter is appealable. Howarth v. Northcott, supra. Rulings on postjudgment motions to modify an original judgment where the court has continuing jurisdiction are final judgments. Ostroski v. Ostroski, 135 Conn. 509, 511, 66 A.2d 599 (1949).

The defendant contends that the order for psychiatric therapy is in the nature of a discovery order and is, therefore, nonappealable. See State v. Grotton, 180 Conn. 290, 429 A.2d 871 (1980); Chrysler Credit Corporation v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 429 A.2d 478 (1980). In ordering psychiatric therapy, the trial court imposed a condition on the plaintiff's care and custody of her child, and effectively modified the original custody award. The court did not treat its order as one for discovery but as a therapeutic tool. 6 Given this use of the order for therapy, and given its undetermined duration, the court has modified the original judgment which gave the plaintiff exclusive custody of the child. A modification of even a temporary award of custody is reviewable as a final judgment. See In re Juvenile Appeal (83-CD), 189 Conn. 276, 455 A.2d 1313 (1983). The noncustodial parent, here the defendant, had not, as of the date of his motion for modification, provided any evidence of a change in circumstances. The court, however, ordered an involuntary submission of the child by the custodial parent to psychiatric examination and treatment. This modification of custody without a requisite showing of a change in circumstances leaves the plaintiff without recourse, short of contempt, unless she has the right of appeal.

Since the order is found to be appealable, the substance of the appeal must be considered. General Statutes § 46b-56 governs the issuance of orders regarding custody in a dissolution action. It provides in pertinent part as follows: "(a) In any controversy before the superior court as to the custody or care of minor children ... the court may at any time make or modify any proper order regarding the education and support of the children and of care, custody and visitation if it has jurisdiction under the provisions of chapter 815o.... (b) In making or modifying any order with respect to custody or visitation, the court shall be guided by the best interests of the child...." The court's broad discretion to modify custody orders is limited by the requirement that such modification be based upon "either a material change of circumstances which alters the court's finding of the best interests of the child; Trunik v. Trunik, 179 Conn. 287, 289-90, 426 A.2d 274 (1979); Cleveland v. Cleveland, 165 Conn. 95, 100, 328 A.2d 691 (1973); Tippin v. Tippin, 148 Conn. 1, 3, 166 A.2d 448 (1960); Sullivan v. Sullivan [141 Conn. 235, 239, 104 A.2d 898 (1954) ]; or a finding that the custody order sought to be modified was not based upon the best interests of the child. Stewart v. Stewart, [177 Conn. 401, 407, 418 A.2d 62 (1979) ]; Simons v. Simons, 172 Conn. 341, 348, 374 A.2d 1040 (1977)." Hall v. Hall, 186 Conn. 118, 122, 439 A.2d 447 (1982).

The plaintiff argues that the order was improper because neither evidentiary finding set forth in Hall v. Hall, supra, was made. The transcript and record support this argument. Since such is the case, it is concluded that the trial court abused its discretion in ordering therapy for the child. See Strohmeyer v. Strohmeyer, 183 Conn. 353, 356, 439 A.2d 367 (1981).

There is no merit in the defendant's contention that, because the order for therapy was issued pursuant to General Statutes §§ 46b-3 and 46b-6, Hall v. Hall, supra, is inapplicable. Section 46b-3 provides in pertinent part: "For the purposes of any investigation or pretrial conference the judge presiding at any family relations session may employ the services of any ... physician, psychologist, psychiatrist or family counselor." Section 46b-6 provides: "In any pending family relations matter the court or any judge may cause an investigation to be made with respect to any circumstance of the matter which may be helpful or material or relevant to a proper disposition of the case. Such investigation may include an ... evaluation of [a child's] mental or physical condition." General Statutes § 46b-6 thus permits the court to order an evaluation of a child's mental condition and, to that end, General Statutes § 46b-3 allows the court to employ the services of a psychologist, psychiatrist or family counselor. The statutes provide a means by which the court, in its discretion, may obtain a disinterested assessment of the facts of the case. Ridgeway v. Ridgeway, 180 Conn. 533, 542 n. 6, 429 A.2d 801 (1980). They do not authorize any more than that.

Where the language of the statute is clear and unambiguous, we cannot subject its meaning to modification by construction. Luttrell v. Luttrell, 184 Conn. 307, 310-11, 439 A.2d 981 (1981); Colli v. Real Estate Commission, 169 Conn. 445, 450, 364 A.2d 167 (1975). Here, the language is clear. An evaluation of a physical or mental condition is not equivalent to treatment of such a condition.

"Evaluation" means "the act or result of evaluating"; "evaluate" in turn, is defined as "to examine and judge concerning the worth, quality, significance, amount, degree or condition of." Webster's Third New International Dictionary. "Therapy," on the other hand, means the "treatment of disease ... by therapeutic means." Id. Neither § 46b-3 nor § 46b-6 of the General Statutes confers jurisdiction upon the court to order psychiatric or other therapy in the course of an investigation.

II

At the time of the dissolution of the marriage, the plaintiff was awarded child support totaling $50 per week, and the defendant was required to convey his one half interest in the jointly owned marital home to her and to secure the release of a judgment lien on the home. 7 In November, 1982, the defendant received approximately $35,000 from the plaintiff for his interest in the house,...

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