Emerick v. Emerick

• Decision Date: 24 December 1985
• Docket Number: No. 2941,2941
• Citation: Emerick v. Emerick, 5 Conn.App. 649, 502 A.2d 933 (Conn. App. 1985)
• Court: Connecticut Court of Appeals
• Parties: Claudia EMERICK v. Roger EMERICK.

Page 933

502 A.2d 933

5 Conn.App. 649

Claudia EMERICK v. Roger EMERICK.

No. 2941.

Appellate Court of Connecticut.

Argued Oct. 3, 1985.

Decided Dec. 24, 1985.

Lloyd Frauenglass, Hartford, for appellant-appellee (plaintiff).

Roger Emerick, pro se.

Richard W. Dyer, Manchester, for minor child.

Before DUPONT, C.J., and HULL and SPALLONE, JJ.

DUPONT, Chief Judge.

In this appeal by the plaintiff wife and cross appeal by the defendant husband from a judgment dissolving their marriage, numerous claims of error are made. The issues are whether the trial court erred in rendering orders providing for (1) a prospective award of joint custody of the parties' minor child when neither party had sought joint custody, (2) an automatic change of custody if the minor child of the parties were permanently removed from Connecticut, (3) financial awards, division of property and counsel fees, and (4) a prohibition preventing both parties from bathing or sleeping with the child, or spanking her. ¹

The trial court found that the plaintiff and the defendant had been married for five years, and had one minor child who was residing with the plaintiff at the time of the dissolution of the marriage. It further found that the plaintiff earned approximately $19,000 per year, that the defendant earned approximately $30,000 per year, and that both parties had worked outside of the home during their marriage. The principal asset of the marriage was the family home which the court found to have an equity value of $100,000. In its view, "[b]oth the plaintiff and the defendant are thoughtful, caring, loving, competent parents and both have a great deal to offer their daughter. The child loves them both but primarily identifies with and is attached to her mother." The court also found that the plaintiff was prepared to leave the state, precluding any meaningful relationship between the child and the defendant, and that the defendant displayed an "obsessive, single-minded, apparently consuming passion to control, possess and dominate his wife and daughter's lives and has interminably and mercilessly rummaged and meddled with his wife's privacy throughout the course of the dissolution action." The court, in addition, found that the permanent removal of the child from Connecticut would not be in her best interests.

On the basis of these findings of fact, the trial court specifically did not order periodic alimony but gave the plaintiff lump sum alimony of $22,180, with interest at 9 percent per annum, to be evidenced by the defendant's promissory note and mortgage on the marital home. The note was to be paid at the rate of $350 per month, with the remaining principal and interest due thereon to be paid in full upon refinancing, the defendant's death, or the passage of five years. Various items of personalty were awarded to both parties. The defendant was ordered to pay $115 per week as child support, except if the minor child resided with the defendant, in which case the amount was to be lowered to $85 per week. The defendant was to maintain medical insurance, but, to the extent it was insufficient, both parties were to pay on half of unreimbursed expenses. The court awarded counsel fees to the plaintiff, and counsel fees to the child's counsel to be paid one-third by the plaintiff and two-thirds by the defendant.

The court also ordered both parties to participate in psychological counselling to help establish communication between them, as prescribed by the family relations division of the court, and ordered the defendant to participate in a separate program to amelioriate his present tendencies of domination over both the plaintiff and his daughter. It further ordered that upon "satisfactory participation and completion of ... psychological counseling, as measured by marked improvement in the comportment of the Defendant" that joint custody be awarded to the parties approximately one and one-half years after the judgment date, with interim custody to be with the plaintiff, subject to the reasonable visitation rights of the defendant. ² These rights of visitation were elaborately enunciated and were to remain the same, whether custody was joint or sole. The court also ordered that "[i]n the event of ... a removal [of the child from Connecticut by either party], custody, without further order ... shall vest immediately and solely in the remaining parent." ³ Another order of the court prohibited either parent from bathing with, sleeping with, or spanking the child.

I

The trial court's judgment awarding joint custody of the minor child to the parties, if the condition of behavioral modification of the defendant were met in the future, is claimed to be error by the plaintiff because neither party sought or agreed to joint custody. Assuming that the court, without motion by either party or without agreement of the parties, may award joint custody, the plaintiff claims that, on the facts of this case, it was error to conclude that joint custody was in the best interests of the minor child.

Embodied in the issue of whether the court, without motion by either party or without agreement of the parties, may order joint custody is the issue of whether to do so denied the plaintiff due process because it deprived her of notice and of an opportunity to be heard on the question.

In this case, both parties sought sole custody of the child, but neither sought joint custody. Counsel for the child and the family relations officer recommended that custody be awarded to the plaintiff. The trial court was not bound to accept the expert opinion of the family relations officer or the opinion of the minor child's counsel. Yontef v. Yontef, 185 Conn. 275, 281, 440 A.2d 899 (1981). The question, however, is whether the trial court was prohibited from rendering a sua sponte award of future joint custody upon a present finding that joint custody was in the best interest of the child, given the fulfillment of a specific condition. Two statutes are involved in the determination of whether a trial court may award joint custody upon its unilateral determination that the best interests of the child dictate it. ⁴

General Statutes § 46b-56(a) provides: "Subject to the provisions of section 46b-56a, the court may assign the custody of any child to the parents jointly ... according to its best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable." The second statute, General Statutes § 46b-56a, is entitled "Joint custody. Definition. Presumption. Conciliation" ⁵ and provides an amplification of General Statutes § 46b-56(a).

On two occasions, the Connecticut Supreme Court has dealt with certain aspects of the propriety of joint custody awards. In Strohmeyer v. Strohmeyer, 183 Conn. 353, 439 A.2d 367 (1981), the court held that it was a denial of the due process requirements of fair notice and a reasonable opportunity to be heard to award joint custody when one parent had not sought custody at all, and the other had no knowledge that joint custody was being considered by the court. The case, however, was decided before the passage of General Statutes § 46b-56a and prior to the amendment of General Statutes § 46b-56(a), which made the award of joint custody subject to the provisions of General Statutes § 46b-56a.

The Strohmeyer court remanded the case for further proceedings and made it clear that, under the then-existing legislation, a trial court might inquire into the feasibility of joint custody even when one party has not contested custody in the other, as long as due process requirements are satisfied. ⁶ The question to be decided in the present case is whether, after the 1981 passage of General Statutes § 46b-56a, the Strohmeyer holding remains intact.

Joint custody is an increasingly favored viable alternative to sole custody in one parent, with reasonable rights of visitation in the other, when the parents have agreed to it. Whether joint custody, without the agreement of both parents, is a workable alternative to the goal of preserving a dual parental relationship with a child outside the former marital relationship is a subject of debate. See annot., "Propriety of Awarding Joint Custody of Children," 17 A.L.R.4th 1013 (1982); 2 McCahey, Child Custody & Visitation Law and Practice (1983) ch. 13; Novinson, Post Divorce Visitation, 1983 Ill.L.Rev. 121; note, "Developments in the Law--The Constitution and the Family," 93 Harv.L.Rev. 1156 (1980); note, "Joint Custody Awards: Toward the Development of Judicial Standards," 48 Fordham L.Rev. 105 (1979).

Joint custody awards when workable have undoubted societal and psychological merit. Judicial awards of joint custody of children are decisionally grounded upon express statutory provisions or general statutory authority to award custody in the best interest of the child. There are two types of express statutory authority. One type of statute simply states that joint custody may be awarded, and the other type of statute defines the term and explicates the guidelines for such an award, sometimes creating a presumption in its favor where the parties have agreed to it. Statutes are generally silent as to whether a court may, sua sponte, grant an award of joint custody. McCahey, supra, § 13.07. ⁷

Our statutes providing for awards of joint custody are modelled after the California statutes on the same subject. ⁸ See remarks of Representative Robert Farr, 24 H.Proc., Pt. 20, 1981 Sess., pp. 6769-70. General Statutes § 46b-56a(a) defines joint custody but does not do so in the same terms as the California statutes. Since our statute was intended to track California's statute, we interpret our definition as including joint legal custody, meaning joint decision making, and joint physical custody, meaning a sharing of continued contact with both parents. Further, joint physical custody is severable from joint legal custody. ⁹ The last sentence of the...