Lehane v. Murray

• Decision Date: 20 September 2022
• Docket Number: AC 44541
• Citation: 215 Conn.App. 305,283 A.3d 62
• Parties: Danielle LEHANE v. James MURRAY
• Court: Connecticut Court of Appeals

215 Conn.App. 305

283 A.3d 62

Danielle LEHANE

v.James MURRAY

AC 44541

Appellate Court of Connecticut.

Argued May 10, 2022

Officially Released September 20, 2022

Dana M. Hrelic, Hartford, with whom were Johanna S. Katz and, on the brief, Stacie L. Provencher, for the appellant (plaintiff).

Mary Piscatelli Brigham, Waterbury, for the appellee (defendant).

Bright, C. J., and Cradle and Seeley, Js.

CRADLE, J.

In this postdissolution matter, the plaintiff, Danielle Lehane, appeals from the judgment of the trial court modifying the parties’ custody of and visitation with their minor child. The court awarded sole legal and physical custody to the defendant, James Murray, and awarded the plaintiff certain visitation rights. On appeal, the plaintiff claims that the court (1) improperly delegated its judicial authority to a nonjudicial party by giving the defendant the authority to "alter, change or modify" her visitation schedule, (2) exceeded its authority by ordering her to submit to a psychological evaluation and to provide the results to the defendant, and (3) improperly awarded the defendant the right to claim the child as a dependent for income tax purposes where the dissolution judgment included a clear and unambiguous provision awarding the plaintiff the nonmodifiable right to do so. We disagree with the plaintiff's claim that the court improperly delegated its judicial authority to the defendant, but we agree with her other two claims. Accordingly, we affirm in part and reverse in part the judgment of the trial court.

The following procedural history is relevant to this appeal. The marriage of the parties was dissolved on March 23, 2017, and their separation agreement was incorporated into the judgment of dissolution. Pursuant to that judgment, the parties shared joint legal custody of their four year old son, who resided primarily with the plaintiff, and the parties exercised a two week rotating parenting plan. Since June, 2017, the parties have been engaged in extensive litigation involving custody of and visitation with their son. Commencing November 24, 2020, and concluding December 21, 2020, the trial court, Diana, J ., held a fifteen day hearing on twenty-four postjudgment motions the parties had filed, including motions in which they each sought sole custody of their son. On February 3, 2021, the court issued a memorandum of decision in which, inter alia, it granted the defendant's motion to modify and awarded him sole legal and physical custody of the parties’ son.¹ The court further ordered, inter alia, that "the plaintiff shall have parental access to the minor child" every other weekend and every Wednesday overnight, and that "the defendant may alter, change or modify [that] schedule, along with the location, date and time of the exchanges." The court also ordered: "No holiday or vacation orders shall be entered on behalf of the plaintiff unless consented to by the defendant in writing, except that the plaintiff shall have eight (8) hours of access to the minor child over the Thanksgiving weekend and over the Christmas holiday as is decided by the defendant."

The court ordered the plaintiff to immediately undergo a psychological evaluation and to provide a copy of that evaluation to the defendant. The court ordered that the plaintiff "shall follow all recommendations regarding any and all treatment consultations set forth by the evaluator and therapist."

The court also modified child support, ordering the plaintiff to pay child support in the amount of $122 per week to the defendant in accordance with the Child Support and Arrearage Guidelines set forth in § 46b-215a-1 et seq. of the Regulations of Connecticut State Agencies. The court further ordered that the defendant shall be entitled to claim the child as a dependent for income tax purposes. This appeal followed.

I

The plaintiff first claims that the trial court improperly delegated its judicial authority to a nonjudicial party by giving the defendant the authority to "alter, change or modify" her visitation schedule. We are not persuaded.²

The court's authority to enter orders pertaining to the care and custody of minor children, and the factors that must be considered in doing so, are prescribed by statute. General Statutes (Rev. to 2019) § 46b-56 (a) authorizes the Superior Court in any action involving the custody or care of minor children to "make or modify any proper order regarding the custody, care, education, visitation and support of the children ... according to its best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable." Subsection (b) of General Statutes (Rev. to 2019) § 46b-56 provides in relevant part: "In making or modifying any order as provided in subsection (a) of this section, the rights and responsibilities of both parents shall be considered and the court shall enter orders accordingly that serve the best interests of the child and provide the child with the active and consistent involvement of both parents commensurate with their abilities and interests. ..." Subsection (b) of General Statutes (Rev. to 2019) § 46b-56 also contains a nonexhaustive list of possible orders including a catchall provision permitting "any other custody arrangements as the court may determine to be in the best interests of the child." General Statutes (Rev. to 2019) § 46b-56 (c) provides in relevant part that, "[i]n making or modifying any order as provided in subsections (a) and (b) of this section, the court shall consider the best interests of the child, and in doing so may consider, but shall not be limited to, one or more of [sixteen enumerated]³ factors .... The court is not required to assign any weight to any of the factors that it considers, but shall articulate the basis for its decision." (Footnote added.)

Although we typically review a trial court's custody and visitation orders for an abuse of discretion, the question of "whether the court improperly delegated its judicial authority presents a legal question over which we exercise plenary review." Zilkha v. Zilkha , 180 Conn. App. 143, 170, 183 A.3d 64, cert. denied, 328 Conn. 937, 183 A.3d 1175 (2018). "It is well settled ... that [n]o court in this state can delegate its judicial authority to any person serving the court in a nonjudicial function. The court may seek the advice and heed the recommendation contained in the reports of persons engaged by the court to assist it, but in no event may such a nonjudicial entity bind the judicial authority to enter any order or judgment so advised or recommended. ... A court improperly delegates its judicial authority to [a nonjudicial entity] when that person is given authority to issue orders that affect the parties or the children. Such orders are part of a judicial function that can be done only by one clothed with judicial authority." (Internal quotation marks omitted.) Thunelius v. Posacki , 193 Conn. App. 666, 674, 220 A.3d 194 (2019).

In this case, following a fifteen day evidentiary hearing during which the parties introduced more than 100 exhibits, the trial court set forth extensive factual findings and conclusions, which are supported by the record and have not been challenged on appeal, upon which it based its orders pertaining to the parenting of the parties’ son. The court began by examining various conflicts that had arisen between the parties since the date of dissolution. The court recounted that the conflict included, but was not limited to, two claims by the plaintiff to the Department of Children and Families (DCF), alleging safety concerns and lack of supervision of the child when he is in the defendant's care, and a similar complaint to the Torrington Police Department (police department). Both DCF and the police department found the plaintiff's claims to be unsubstantiated. Despite knowing that no safety concerns were found, the plaintiff wilfully denied the defendant access to the child for three weeks during the period surrounding those unsubstantiated allegations.

On the basis of the significant and consistent conflicts between the parties, the court found: "The plaintiff's behavior consistently ignores and distorts court orders. She has undermined the defendant's relationship with their son by coaching him, not honoring or encouraging access, and by crying when he visits with his father. ... [T]he plaintiff describe[s] her[self] ... [as] the gatekeeper in deciding if the [defendant's] visits [with their son] take place. ... She admitted that she refused to allow the defendant access to their son for a period of time due to safety concerns, despite a finding by DCF to the contrary. The other reason provided [by the plaintiff] is that the minor child refused to go with the defendant." On the basis of the plaintiff's actions, including but not limited to those recited previously, the court concluded that "the plaintiff failed to act in good faith in encouraging the minor child to visit [the defendant] .... Her comments and repeated insulting references to the defendant send a clear message that this perceptive child understands, [and] has mirrored and parroted." (Citation omitted.)

In support of its findings, the court referred to communications between the parties on Our Family Wizard (OFW)⁴ for the three years since the date of dissolution, which were introduced as exhibits at the hearing. The court found: "A review of the OFW exchanges between the parties clearly reveals, in the parties’ own words, how they interact with each other. The defendant is neutral, calm, pleasant, informative and appropriate in his language and tone. The plaintiff is at times appropriate; other times she does not reply to specific questions and often takes on a hostile, combative, accusatory and insulting attitude in her exchange." The court further noted that, while the defendant had demonstrated "his willingness and ability to encourage the mother-child relationship," the plaintiff ...