Harris v. Hamilton, 33731.

• Decision Date: 12 March 2013
• Docket Number: No. 33731.,33731.
• Citation: 141 Conn.App. 208,61 A.3d 542
• Court: Connecticut Court of Appeals
• Parties: Kenji A. HARRIS v. Tashana HAMILTON.

141 Conn.App. 208

61 A.3d 542

Kenji A. HARRIS

v.Tashana HAMILTON.

No. 33731.

Appellate Court of Connecticut.

Argued Oct. 12, 2012.

Decided March 12, 2013.

Eric D. Coleman, Hartford, for the appellant (plaintiff).

Tashana A. Hamilton, pro se, the appellee (defendant).

GRUENDEL, ROBINSON and SCHALLER, Js.

ROBINSON, J.

The plaintiff, Kenji A. Harris, appeals from the judgment of the trial court granting the defendant, Tashana Hamilton, sole custody of the parties' minor child and denying his motion for contempt that was filed on March 4, 2011. The plaintiff claims that the trial court (1) violated his federal and state constitutional due process rights by concluding the hearing prior to the plaintiff's completing his case-in-chief, (2) erred in limiting testimony and evidence to matters subsequent to the parties' August 14, 2008 agreement, except as they related to the defendant's credibility, (3) improperly awarded sole custody to the defendant and (4) improperly found that there was no motion for contempt to sustain the court's factual findings. We affirm,in part, and reverse, in part, the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On October 7, 2005, the plaintiff filed a custody application. The parties reached an agreement, which was approved by the court on January 30, 2006, that provided for joint custody of the minor child, primary residence with the defendant and visitation for the plaintiff. After a number of motions were filed by both parties, a guardian ad litem was appointed on May 8, 2006. Over the next two years, the parties filed frequent motions for contempt, orders and custody that required several court orders and court approved agreements to create more specific conditions that would address the issues between the parties. The operative agreement, approved by the court on August 14, 2008, and amended on February 10, 2009, set up routine parenting time for the plaintiff with the minor child every Wednesday afternoon and every other weekend, specified how parenting time exchanges were to occur, required the parties to communicate through Our Family Wizard, an online program, required the parties to recommence with the Families in Transition (mediation) program at the Children's Law Center, allocated holidays and vacations between the parties and established a procedure for rescheduling parenting time in the case of events.

The defendant filed a postjudgment motion to modify custody on August 26, 2009. The court initially scheduled a three day hearing to commence on September 20, 2010, and to end on September 23, 2010. In addition to the defendant's motion to modify custody, the court also agreed to hear testimony for seven outstanding motions that had been filed by the defendant and two motions that had been filed by the plaintiff.

The plaintiff had not commenced his case-in-chief by the end of September 23, 2010, so two more days, March 28 and 29, 2011, were scheduled to complete testimony. When the hearing recommenced on March 28, the court agreed to hear three additional motions for contempt that had been filed in the interim period between the hearing dates, two motions by the plaintiff and one motion by the defendant. At the end of the day on March 29, the court agreed to schedule two additional days, on May 10 and 17, 2011, to hear testimony. At the end of the day on May 17, however, the court granted the parties an additional half day, which occurred on May 19, 2011, to hear testimony from the guardian ad litem. When the guardian ad litem's testimony had not concluded at the end of the allotted time, the court granted the parties one additional hour, on June 21, 2011, to complete her testimony.

In its memorandum of decision, the court granted the defendant's motion for modification of custody ¹ and denied or dismissed all other motions still outstanding.²It found that there had been a material change in circumstances that warranted a modification of the custody orders, including “the plaintiff's failure to employ the scheduling features of Our Family Wizard despite court orders to do so and his inability to consider the minor child's best interests and needs in making his parental decisions....” It further found that it was in the best interests of the minor child to change the custody orders previously issued by the court and for “the defendant to be responsible for the scheduling of [the minor child's] activities both academic and recreational as well as taking responsibility for the child's physical and mental health....” This appeal followed. Additional relevant facts will be set forth as necessary.

I

The plaintiff first claims that the court violated his federal and state constitutional due process rights when it concluded the hearing before the completion of his case-in-chief. He maintains that his testimony and the testimony of additional witnesses, as well as the introduction of photographs of himself with the minor child, and Our Family Wizard communications would have called into question the defendant's present fitness to be the custodial parent of the minor child. We conclude that the plaintiff did not preserve his claim at the hearing and did not seek review pursuant to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), or under the plain error doctrine. See Practice Book § 60–5. Accordingly, we decline to address this unpreserved claim.

The following additional facts and procedural history are necessary to resolve this claim. At the end of the fifth day of the hearing, on March 29, 2011, the court inquired as to how much time the parties would need to complete their cases. The defendant's counsel indicated that he did not have any additional witnesses to testify with the exception of the guardian ad litem, Rhonda Morra, whom he intended to call as a rebuttal witness. The plaintiff's attorney indicated that he had at least six witnesses that he wanted to testify and that the two additional days granted by the court should be sufficient. The court noted that it would not definitely limit testimony to the additional days but that its inclination was not to continue the case any more days.

When the hearing resumed on May 10, 2011, the plaintiff's counsel indicated that he had not completed his cross-examination of the defendant, but that he desired to call two police officers to testify in his case-in-chief. The court allowed him to do so. After the testimony of the police officers, the plaintiff's counsel continued his cross-examination of the defendant, examined the defendant's significant other, then further resumed his cross-examination of the defendant.

On May 17, 2011, the plaintiff's counsel completed his cross-examination of the defendant. The testimony of the guardian ad litem was interrupted by the testimony of Sharon Vance, a family relations officer, so the court allowed additional time on May 19, 2011, and June 21, 2011, to hear only her testimony. When the plaintiff's counsel asked on May 17, 2011, if the plaintiff could testify, the court refused.³The plaintiff raised the issue in his written closing argument, asserting that the court had concluded the hearing on June 21, 2011, without allowing the plaintiff to testify and to offer evidence of photographs of the minor child or communications from Our Family Wizard in support of allegations of two of the plaintiff's motions. For the first time on appeal, the plaintiff identifies two additional witnesses who would have testified about the defendant's behavior.

“[I]f a defendant fails to preserve a claim for appellate review, we will not review the claim unless the defendant is entitled to review under the plain error doctrine or the rule set forth in State v. Golding, [supra, 213 Conn. at 239–40, 567 A.2d 823].” (Internal quotation marks omitted.) State v. Cutler, 293 Conn. 303, 324, 977 A.2d 209 (2009). ⁴ Furthermore, “it is not appropriate to engage in a level of review that is not requested.” (Internal quotation marks omitted.) Bruno v. Geller, 136 Conn.App. 707, 731, 46 A.3d 974, cert. denied, 306 Conn. 905, 52 A.3d 732 (2012).

In neither instance when he raised the issue with the court did the plaintiff argue that ending the hearing was a denial of his due process rights. Moreover, the argument that two additional witnesses would have supported the plaintiff's case was not raised before the trial court. Thus, we conclude that the plaintiff did not preserve his constitutional claim of due process.

In his main brief, the plaintiff does not state that an extraordinary level of review is requested, does not refer to Golding either in name or in substance and does not address the issue of the adequacy of the record. The plaintiff does not present an analysis that, if the claim was not properly preserved, it nevertheless should be reviewed. See State v. Elson, 125 Conn.App. 328, 356, 9 A.3d 731 (2010), cert. granted, 300 Conn. 904, 12 A.3d 572 (2011). ⁵ Moreover, the plaintiff did not request that we review this claim pursuant to the plain error doctrine nor did he adequately brief the claim. See Pestey v. Cushman, 259 Conn. 345, 373, 788 A.2d 496 (2002). Accordingly, we decline to review this claim.

II

The plaintiff next claims that the court erred in limiting testimony and evidence to matters subsequent to the parties' August 14, 2008 agreement, except as they related to the defendant's credibility. He argues that the factors to be considered when determining the best interests of the child contemplate the past behavior of the parties and that the court abused its discretion by limiting testimony to events after the August 14, 2008 agreement. We disagree.

The standard of review of an evidentiary challenge is well established. “We review the trial court's decision to admit evidence, if premised on a correct view of the law ... for an abuse of discretion.” State v. Saucier, 283 Conn. 207, 218, 926 A.2d 633 (2007). “The trial court...