Gallo v. Gallo

• Decision Date: 05 May 1981
• Citation: 184 Conn. 36,440 A.2d 782
• Court: Connecticut Supreme Court
• Parties: Barbara M. GALLO v. Donald R. GALLO.

Page 782

440 A.2d 782

184 Conn. 36

Barbara M. GALLO v. Donald R. GALLO.

Supreme Court of Connecticut.

Argued Dec. 11, 1980.

Decided May 5, 1981.

Joel M. Ellis, Glastonbury, with whom were Donald J. Cantor, Hartford, and, on the brief, Edward S. Hyman, Hartford, for appellant (defendant).

James V. Guarino, Middletown, with whom, on the brief, were Daniel B. Ryan, Helen F. Ryan, Middletown, and Patricia C. Farrell, New Britain, for appellee (plaintiff).

Nelson R. Goodrich, Hartford, for minor child.

Before BOGDANSKI, SPEZIALE, PETERS, HEALEY and WRIGHT, JJ.

SPEZIALE, Associate Justice.

In this dissolution of marriage action the trial court awarded custody of the minor son to the mother and allowed reasonable visitation with the father but banned overnight visitation at the father's home so long as the father continues to reside with "another woman without the benefit of wedlock." The court also ordered a division of the marital property and payment by the defendant of periodic alimony and child support. On appeal the defendant claims that the court erred in finding certain facts and not finding others, in placing the restriction on overnight visitation, in using improper criteria to determine the monetary awards, and in imposing the following financial obligations on the defendant: payments to an educational fund for the minor child, maintenance of an insurance policy on his life for the benefit of the plaintiff, payment to the plaintiff of 20 percent of the royalties to be received for five years on a series of educational books which the defendant has written, and payment of $1000 of the plaintiff's counsel fees. ¹

The trial court found that the parties were married in 1964 and had a son, Brian, born in 1971. Both parties had earned postgraduate degrees, were currently employed and had earned royalties from publications that they authored. During the marriage the defendant engaged in successive affairs with four women. The last of the four was then living with the defendant in his "relatively small" condominium. The defendant's conduct and attitude toward marriage and family life caused the breakdown of the marriage. The defendant had made no effort to provide religious education for Brian despite Brian's expression of interest in religious matters.

The defendant requests that we strike certain findings of fact made by the trial court in its memorandum of decision; he also wants us to add certain findings of fact. This court cannot find facts. Our function is to decide whether the decision of the trial court was "clearly erroneous in view of the evidence and pleadings in the whole record"; Practice Book § 3060D; Stelco Industries, Inc. v. Cohen, --- Conn. ---, ---, 438 A.2d 759 (42 Conn.L.J., No. 26, pp. 4, 5) (1980); and "where the factual basis of the court's decision is challenged, we must determine whether the facts stated in the memorandum of decision are supported by the evidence ...." Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222, 435 A.2d 24 (1980). See Hollingsworth v. Hollingsworth, 180 Conn. 212, 214, 429 A.2d 463 (1980). As for the request to strike certain findings of fact, a review of the record discloses the existence of some evidence supporting all of those facts. Weighing the evidence and judging the credibility of the witnesses is the function of the trier of fact and this court will not usurp that role. Munn v. Scalera, 181 Conn. 527, 529, 436 A.2d 18 (42 Conn.L.J., No. 3, pp. 14, 15) (1980); Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975). The defendant also claims that the trial court erred in failing to find certain facts. The question is not what the testimony was but whether the trial court believed it. Some of these facts are implicit in the memorandum of decision and others were not conceded at trial. Therefore we cannot say that the court erred in this regard. See Ayers v. Ayers, 172 Conn. 316, 319-20, 374 A.2d 233 (1977).

I VISITATION

The principal issue before us concerns the restriction ordered by the court when it awarded the defendant the right of reasonable visitation. The court awarded custody Throughout the country a significant number of adults are presently living with a member of the opposite sex without benefit of marriage. See Wadlington, "Sexual Relations After Separation or Divorce: The New Morality and the Old and New Divorce Laws," 63 Va.L.Rev. 249, 249-50 and n.2 (1977). Unfortunately, many of these adults are parents of children from a previous marriage; and trial courts across the nation have been confronted with the problem of fashioning custody and visitation orders affecting these children. The Illinois Supreme Court actually inferred future moral contamination despite an absence of proof of present harm to three preadolescent daughters living with their mother and a man to whom she was not married; in reversing the intermediate appellate court, the Illinois Supreme Court reinstated the trial court order which shifted custody from the mother to the father. Jarrett v. Jarrett, 78 Ill.2d 337, 345, 347, 36 Ill.Dec. 1, 400 N.E.2d 421 (1979), reh. denied, (1980), cert. denied, 449 U.S. 927, 101 S.Ct. 329, 66 L.Ed.2d 155, reh. denied, 449 U.S. 1067, 101 S.Ct. 797, 66 L.Ed.2d 612 (1980). This approach was characterized as a conclusive presumption that her cohabitation with a man to whom she was not married adversely affected the children. Jarrett v. Jarrett, 449 U.S. 927, 101 S.Ct. 329, 66 L.Ed.2d 155 (1980) (Brennan, J., dissenting). See also DeVita v. DeVita, 145 N.J.Super. 120, 128, 366 A.2d 1350 (App.Div.1976) (father's nonresident girlfriend may not stay overnight when his children do).

of the minor child to the mother. Although, in the pleadings, each party sought custody, there is no claim of error as to the custody award. The defendant, however, does claim that the court erred in placing on the father's right of reasonable visitation a restriction which bars overnight visitation so long as the father continues to live with a woman who is not his wife.

The majority approach has been to uphold visitation restrictions or custody changes where there has been some proof that the cohabitation has affected the child. DiStefano v. DiStefano, 60 App.Div.2d 976, 977, 401 N.Y.S.2d 636 (1978) (lesbian relationship; testimony that the mother's lover tried to alienate the children from their father; mother's visits must totally exclude her lover); In re Jane B, 85 Misc.2d 515, 518, 380 N.Y.S.2d 848 (1976) (child's behavior and below-ability school performance attributed to emotional distress over mother's sexual relationship with another woman; custody changed to father with no overnight visitation with mother); Commonwealth ex rel Drum v. Drum, 263 Pa.Super. 248, 251, 397 A.2d 1192 (1979) (children's religious concern about wrongfulness of father's conduct; father's female companion to be absent during children's visits); Brown v. Brown, 218 Va. 196, 200, 237 S.E.2d 89 (1977) (testimony of adverse effect on children from mother's open adulterous relationship; custody transferred to father).

Similar visitation restrictions have been denied where the harm to the child is outweighed by other factors; People ex rel Repetti v. Repetti, 50 App.Div.2d 913, 914, 377 N.Y.S.2d 571 (1975) (greater weight given to strong preference of teenagers to live with father and to the visitation needs of younger children who are living with the mother); or where there has been no showing of an adverse effect on the child. Sorace v. Sorace, 236 Pa.Super. 42, 344 A.2d 553, 554 (1975).

Relying on In re the Marriage of Moore, 35 Colo.App. 280, 531 P.2d 995 (1975), the defendant contends that the trial court should not consider his living with a woman not his wife. The defendant's reliance is misplaced. There, the appellate court found error in the trial court's consideration of the parent's cohabitation as one factor in the custody decision because the Colorado statute, unlike the Connecticut statute, prohibits consideration of a parent's conduct which is separate from the parent-child relationship. Id., 282, 531 P.2d 995; Colo.Rev.Stat. § 14-10-124 (1973).

In Connecticut we must first look to the statute. General Statutes § 46b-56 ² provides the same standard for determining both custody and visitation rights: the best interests of the child. The court must consider the wishes of a mature child. ³ In making the initial custody and visitation order the court may consider the causes for the dissolution.

Contrary to the claim of the defendant, the record does not show that the trial court conclusively presumed that it was against the best interests of the child to visit overnight with the noncustodial parent who cohabits with a person not his spouse. Compare Jarrett v. Jarrett, supra (Brennan, J., dissenting). The court did not say that the restriction was based solely on the fact of cohabitation. In the memorandum of decision, as to the issue of custody and visitation, the trial court discussed not only the father's admitted sharing of a bedroom and bed with the woman while the child was staying there overnight, but also the small size of the father's living quarters and the father's lack of effort to further the child's religious education. ⁴

This is not a case where no other evidence was presented concerning the child's welfare. At the hearing there was extensive testimony by each of the parents, by the woman who was living with the father, and by an unrelated friend of the family. Written reports were submitted by the family relations division and the attorney for the minor child. All agreed that the child had suffered emotional difficulties because of the separation of his parents. The child had experienced school difficulties, was repeating the first grade, and also was seeing a psychologist for therapy on a weekly basis. The father's female companion testified that Brian keeps her at a distance but becomes a little closer during...