Kyle S. v. Jayne K., AC 39969

• Decision Date: 05 June 2018
• Docket Number: AC 39969
• Court: Connecticut Court of Appeals
• Parties: KYLE S. v. JAYNE K. Jayne K. v. Kyle S.

182 Conn.App. 353

190 A.3d 68

KYLE S.

v.JAYNE K.^*

Jayne K.

v.Kyle S.

AC 39969

Appellate Court of Connecticut.

Argued December 7, 2017

Officially released June 5, 2018

Allen G. Palmer, with whom, on the brief, was Logan A. Carducci, for the appellant (plaintiff in the first case, respondent in the second case).

DiPentima, C.J., and Lavine and Bishop, Js.

DiPENTIMA, C.J.

In this protracted domestic litigation, arising out of a dissolution of marriage action and a separate application for relief from abuse, the plaintiff/respondent, Kyle S., appeals from postjudgment orders of the court rendered in favor of the defendant/applicant, Jayne K.¹ On appeal, Kyle S. claims that (1) Jayne K. failed to meet her burden of proof with respect to her application for relief from abuse filed pursuant to General Statutes § 46b–15, her application for an emergency ex parte order of custody filed pursuant to General Statutes § 46b–56f and her motion for modification of custody filed pursuant to General Statutes § 46b–56, (2) the court committed plain error by accepting the parties' waiver of the minor child's privileged mental health records and admitting the records into evidence and (3) the court improperly delegated its authority to decide Kyle S.'s parenting time and custodial rights to a nonjudicial entity. We agree with Kyle S.'s third claim and, accordingly, reverse in part the judgments of the trial court.

The following facts and procedural history are relevant to our discussion. In 2008, Kyle S. initiated a dissolution proceeding. On May 2, 2008, the parties agreed to the appointment of Katarzyna Maluszewski as guardian ad litem for T, the minor child of the parties, whose date of birth is in May, 2004. On September 8, 2009, Jayne K. filed an application for relief from abuse against Kyle S., and the court issued an ex parte restraining order. See Jayne S. v. Kyle S. , 116 Conn. App. 690, 690–91, 978 A.2d 94 (2009). Jayne K. alleged that a previous restraining order had been issued against Kyle S. as a result of a January, 2008 incident when he had kicked Jayne K., breaking her rib. Id., at 691, 978 A.2d 94. The September, 2008 application sought a restraining order after Jayne K. had claimed, inter alia, that Kyle S. left a voicemail in which he had threatened "to kill" her. Id. Following a hearing, the court, Hon. Bernard D. Gaffney , judge trial referee, extended the restraining order for a period of six months, from October 3, 2008, to April 3, 2009. Id., at 691–92, 978 A.2d 94.

On April 22, 2009, the court, Dolan, J. , rendered a judgment dissolving the parties' marriage. It found that the parties had been married in July, 2006, and had one child, T. The court incorporated the parties' written agreement dated April 17, 2009, into the dissolution judgment. The agreement provided that the parties would have joint custody of T, with his primary residence with Kyle S. The agreement also provided that Jayne K. would not pay child support and neither party would pay or receive alimony. In 2011, Maluszewski accepted $3000 as a full and final settlement of her fees as the guardian ad litem for T.²

For the period between February, 2013, and February, 2016, the parties filed no motions, and the dissolution/custody file remained static. On February 11, 2016, Jayne K. filed an application for an emergency ex parte order of custody of T, pursuant to General Statutes § 46b–56f.³ She sought, inter alia, an order of temporary custody of T, with no visitation between T and Kyle S. In the affidavit attached to her motion, she claimed that Kyle S. had physically abused his fiancée in the presence of T. Jayne K. further stated that Kyle S. had been arrested and that the Department of Children and Families (department) had been contacted. She also filed a motion for modification of custody seeking sole custody of T, listing Kyle S.'s arrest as the requisite material change in circumstances.⁴

At this time, Jayne K., in a separate file, also filed an application for relief from abuse against Kyle S., pursuant to General Statutes § 46b–15,⁵ seeking a restraining order to protect both herself and T. In her affidavit attached to this application, Jayne K. expressed fear for her safety, stating that Kyle S. had been arrested for attacking his fiancée, had a violent history and criminal record of abuse, stalking and harassment, and had threatened to kill Jayne K. if she took T from him.

That day, the court, Carbonneau, J. , granted Jayne K.'s ex parte applications and awarded the relief sought without holding a hearing. Specifically, the court issued a restraining order and awarded temporary custody of T to Jayne K. It further ordered the parties to cooperate with the department and to follow any reasonable mandates. Additionally, the court scheduled a hearing on these matters.

Four days of hearings regarding Jayne K.'s applications and motion commenced on July 25, 2016. Jayne K. testified that in February, 2016, T's teacher had emailed her that T had exhibited "goofy behaviors" at school. She also received a call from Kyle S.'s fiancée, informing Jayne K. about the events of Kyle S.'s arrest.⁶

Jayne K. also indicated that T had started treatment with Warren Corson, a psychologist, on June 9, 2016. According to Jayne K., T benefitted greatly from this therapy. She requested sole custody of T. The court continued its temporary order of sole custody in favor of Jayne K.

At the next hearing date, on August 12, 2016, the court ordered that the parties would share joint legal custody of T, with primary residence with Jayne K. The court ordered that Kyle S. could see T in therapeutic sessions with Corson, and ordered other contact as permitted by Jayne K., including access via electronic means. It further ordered that the therapy sessions with Corson were to continue until no longer needed or beneficial. At the September 23, 2016 hearing, following the agreement of the parties, the court admitted into evidence a mental health report from Corson regarding T.

At the December 9, 2016 hearing, the court noted that the restraining order was scheduled to expire on February 19, 2017.⁷ Again with the agreement of the parties, the court admitted into evidence an updated report of T's progress with Corson. Following Kyle S.'s testimony, and closing arguments from the parties, the court orally rendered its decision.

The court found Jayne K.'s testimony credible and that she had sustained her burden of proof under § 46b–15. Accordingly, it continued the existing restraining order, iterating that Kyle S. was "not to assault, threaten, abuse, harass, follow, interfere with or stalk [Jayne K.]." The court ordered Kyle S. to stay away from Jayne K.'s home and work, to not have any contact with her for any reason, and "to stay 100 yards away from her at all times [and] for all reasons."

The court then considered the issue of Kyle S.'s contact with T. The court stated that it would rely on Corson to dictate the scope of Kyle S.'s conduct with T in a therapeutic setting. The court specifically noted: "So ... I'm not extending any aspect of the temporary restraining order to [T] but, in the other file, the custody file, I am restricting that contact so that the mental health professional can be in charge. " (Emphasis added.) This appeal followed. Additional facts will be set forth as necessary.

I

Kyle S. first claims that Jayne K. failed to meet her burden of proof with respect to her application for relief from abuse, her application for an emergency ex parte order of custody and her motion to modify custody. Specifically, Kyle S. argues that neither the application for a restraining order nor the evidence at the hearings were sufficient to establish that he presented an immediate and present risk of physical danger or psychological harm to T, or that a change in custody was warranted. We disagree.

"The standard of review in family matters is well settled. An appellate court will not disturb a trial court's orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented.... Likewise, [a] prayer for injunctive relief is addressed to the sound discretion of the court and the court's ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion....

"In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action.... Appellate review of a trial court's findings of fact is governed by the clearly erroneous standard of review.... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Citations omitted; internal quotation marks omitted.) Putman v. Kennedy , 104 Conn. App. 26, 31, 932 A.2d 434 (2007), cert. denied, 285 Conn. 909, 940 A.2d 809 (2008) ; see also Jordan M. v. Darric M. , 168 Conn. App. 314, 318, 146 A.3d 1041, cert. denied, 324 Conn. 902, 151 A.3d 1287 (2016).

A

We first address Kyle S.'s argument that there was insufficient evidence to support the granting of Jayne K.'s application for a restraining order pursuant to § 46b–15.⁸ "The plain language of § 46b–15 clearly requires a continuous threat of present physical pain or physical injury before a court can grant a domestic violence restraining order." Krystyna W. v. Janusz W. , 127 Conn. App. 586, 590, 14 A.3d 483 (2011) ; Putman v. Kennedy , supra, 104 Conn. App. at 32, 932 A.2d 434. "[D]omestic violence restraining orders will not issue in the absence of the showing of a threat of violence, specifically a continuous threat of present physical pain or physical injury to the applicant.... The legislature prom...