Johnson v. Johnson, 28927.

CourtAppellate Court of Connecticut
Citation111 Conn.App. 413,959 A.2d 637
Docket NumberNo. 29057.,No. 28927.,28927.,29057.
PartiesPaula-Jean M. JOHNSON v. Robert L. JOHNSON.
Decision Date02 December 2008
959 A.2d 637
111 Conn.App. 413
Paula-Jean M. JOHNSON
v.
Robert L. JOHNSON.
No. 28927.
No. 29057.
Appellate Court of Connecticut.
Argued September 15, 2008.
Decided December 2, 2008.

[959 A.2d 639]

John T. Asselin-Connolly, with whom, on the brief, was Richard E. Joaquin, for the appellant (defendant).

Michael A. Blanchard, New London, for the appellee (plaintiff).

[959 A.2d 640]

Paige Stevens Quilliam, Niantic, for the minor child.

DiPENTIMA, LAVINE and DUPONT, Js.

LAVINE, J.


111 Conn.App. 415

The defendant, Robert L. Johnson, brings these consolidated appeals from the trial court's judgment granting the motion for contempt filed by the plaintiff, Paula-Jean M. Johnson, and from the court's judgment rendered following the subsequent compliance review hearing. In AC 28927, the defendant claims that the court abused its discretion when it (1) admitted hearsay during a hearing on the motion for contempt, (2) found him in contempt of the court's orders and (3) ordered him to secure the services of a therapist to effect compliance with the orders. In AC 29057, the defendant claims that the court abused its discretion when, after finding continued noncompliance with its orders, it ordered him to schedule psychological evaluations. We affirm both judgments of the trial court.

The following facts are relevant to both appeals. The plaintiff and the defendant divorced on April 4, 1995. Their only child, a son, was born on May 6, 1992. On August 18, 2005, the court rendered a postdissolution judgment on the basis of a stipulation the parties entered into on August 9, 2005. In the stipulation, the

111 Conn.App. 416

parties agreed to share legal custody of their son. The defendant obtained primary physical custody, while the plaintiff was granted considerable overnight visitation rights on weekends and during holidays and vacations. The parties agreed that the son would complete therapy sessions for the purposes of "reintroduction" to the plaintiff's new husband and agreed to cooperate regarding these sessions in every reasonable manner. They also agreed to refrain from undermining a healthy parent-child relationship and denigrating the other parent.

On October 27, 2006, the plaintiff filed a motion for contempt, claiming that the defendant had violated the orders of August 18, 2005, by sabotaging the therapy and delaying its commencement. The plaintiff also stated that her relationship with the son had deteriorated and that she had had no visitations with him since July, 2006.

On April 4 and May 17, 2007, the court heard testimony from the plaintiff, the defendant, the family therapist, the son's guardian ad litem and the attorney for the son. On June 6, 2007, the court issued a corrected memorandum of decision in which it found that the defendant wilfully violated the orders concerning visitations, therapy sessions and the avoidance of denigrating remarks against the plaintiff. The court ordered the defendant either to deliver the son for the next scheduled visitation or to secure the services of the family therapist to facilitate visitation.1 On June 20, 2007, the defendant filed appeal AC 28927 from that judgment.

On July 16, 2007, the court called the parties into court to review compliance with the orders of June 6, 2007, and, after hearing from counsel for both parties, concluded that there had been none. The court ordered the defendant to schedule and to pay for a psychological

111 Conn.App. 417

evaluation for himself and the son. On August 1, 2007, the defendant filed appeal AC 29057 from that judgment. Further facts will be set forth as necessary.

959 A.2d 641
I
AC 28927

In his appeal from the judgment of June 6, 2007, the defendant claims that the court abused its discretion when it (1) admitted the testimony of the guardian ad litem, (2) found that the defendant wilfully and knowingly violated the orders from August 18, 2005, and (3) ordered the defendant to secure the therapist's services to facilitate the next visitation between the plaintiff and the son if he was unable to comply on his own. We agree with his first claim but conclude that the court's error was harmless. We disagree with the defendant's second and third claims.

A

The defendant first claims that during the hearing on the motion for contempt, the court improperly allowed the guardian ad litem, Timothy Lenes, to testify about the contents of out-of-court statements and reports. We agree with the defendant but find this evidentiary impropriety to be harmless.

The following additional facts are relevant to our consideration of the defendant's claim. At the hearing on the motion for contempt, Lenes testified that (1) Michael Sturgess, a physician previously involved in the case, told him in a telephone conversation that the defendant was interfering with the son's therapy sessions and that (2) Kelly Reddick, the family therapist, stated in her reports that the defendant was noncooperative during her counseling sessions. The defendant repeatedly objected to Lenes' testimony on the ground that it was hearsay. Our review of the transcript indicates that the court and both attorneys considered

111 Conn.App. 418

Lenes to be an expert witness. The court's ultimate rationale for admitting Lenes' testimony, however, is less than clear.2

"`Hearsay' means a statement, other than one made by the declarant while testifying at the proceeding, offered in evidence to establish the truth of the matter asserted." Conn.Code Evid. § 8-1(3). Hearsay is inadmissible except as provided in the Connecticut Code of Evidence, the General Statutes or our rules of practice. Conn.Code Evid. § 8-2. An expert witness may rely on the facts otherwise not admissible in evidence if they are customarily relied on by experts in the particular field in forming opinions on the subject. Conn.Code Evid. § 7-4. "Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue . . . and (3) the testimony would be helpful to the court or jury in considering the issues." (Internal quotation marks omitted.) State v. Pjura, 68 Conn.App. 119, 124, 789 A.2d 1124 (2002).

We conclude that Lenes' testimony about the content of Sturgess' statement and Reddick's reports should have been excluded. Even if we assume that a guardian ad litem may in some circumstances testify as an expert witness, our review of the transcript indicates that Lenes never stated an opinion or made

959 A.2d 642

any recommendations stemming from that role. Lenes' testimony in its essence consisted of relaying Sturgess' and Reddick's

111 Conn.App. 419

opinions regarding the defendant's cooperation with the therapy sessions. Whatever special skills and knowledge Lenes has as a guardian ad litem were neither applicable to the issue of the defendant's compliance with the court's orders nor helpful to the court in considering that issue. We therefore agree with the defendant that the court improperly permitted Lenes to act as a conduit for hearsay.

The following facts, however, persuade us that the error was harmless. Prior to Lenes' testimony, the court heard testimony from Reddick and the plaintiff. Reddick testified that the defendant was angry, frustrated and concerned about the "reunification" therapy between the son and the plaintiff's husband. She also testified that the defendant sat in the waiting room during the sessions although he refused to participate in them. The plaintiff then testified that she had no court-ordered visitations with her son since July, 2006. She indicated that the defendant and his current wife often recorded her communications with the son or the defendant. The plaintiff stated that the defendant delayed the commencement of the sessions. She also testified about the son's anger and familiarity with the court proceedings. In its memorandum of decision, the court, in addition to finding the defendant's testimony less than credible, based its finding of noncompliance with the court orders on the following factors: the lack of visitations since July, 2006; the defendant's presence in the waiting room during the therapy sessions although it was prearranged that the plaintiff would drive the son home; the defendant's habit of recording his and the son's communications with the plaintiff; and his statements to Reddick that he disagreed with the imposition of the "reunification" therapy. All of these facts were introduced during the plaintiff's or Reddick's testimony.

111 Conn.App. 420

An evidentiary ruling that does not raise a constitutional question "will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice." (Internal quotation marks omitted.) State v. Cole, 50 Conn.App. 312, 330-31, 718 A.2d 457 (1998), aff'd, 254 Conn. 88, 755 A.2d 202 (2000). In a civil case, the appellant has the burden of establishing the specific harmfulness of the error by demonstrating the likelihood that the evidentiary ruling had affected the result. Constantine v. Schneider, 49 Conn.App. 378, 393, 715 A.2d 772 (1998).

We conclude that the introduction of hearsay during Lenes' testimony was harmless. The court, in its memorandum of decision, did not rely on any evidence introduced during Lenes' testimony that had not been introduced by either the plaintiff or Reddick, and the defendant does not explain how Lenes' testimony affected the court's decision. See Sokolowski v. Medi Mart, Inc., 24 Conn.App. 276, 282, 587 A.2d 1056 (1991) (holding that error harmless because appellant failed to identify any specific harm from improper introduction of evidence).

We therefore conclude that the court improperly allowed the introduction of Lenes' testimony, but we find the admission of such evidence to be harmless.

B

The defendant next claims that the court abused its discretion in finding him in wilful and knowing violation of the judgment rendered...

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