Mallory v. Mallory

• Decision Date: 05 April 1988
• Docket Number: No. 13184,13184
• Citation: 539 A.2d 995,207 Conn. 48
• Court: Connecticut Supreme Court
• Parties: Carol A. MALLORY v. Eugene W. MALLORY.

Page 995

539 A.2d 995

207 Conn. 48

Carol A. MALLORY v. Eugene W. MALLORY.

No. 13184.

Supreme Court of Connecticut.

Argued Feb. 9, 1988.

Decided April 5, 1988.

Elissa T. Wright, New London, with whom, on the brief, was Joseph E. Moukawsher, Groton, for appellant (defendant).

Barbara J. Masters, Norwich, for appellee (plaintiff).

Before ARTHUR H. HEALEY, SHEA, CALLAHAN, GLASS and HULL, JJ.

SHEA, Associate Justice.

In this appeal from a judgment dissolving the marriage of the parties, the defendant husband, Eugene Mallory, claims that the trial court erred: (1) in restricting his visitation rights with his daughter based on its finding, by a preponderance of the evidence, that he had sexually abused her, when it should have required proof by clear and convincing evidence; (2) in concluding that there was sufficient evidence to prove that he had sexually abused his daughter even under the preponderance of the evidence standard; (3) in ordering him to pay attorney's fees to the plaintiff wife, Carol Mallory, for this appeal; (4) in ordering him to pay attorney's fees to the plaintiff in connection with a proceeding in which he was found in contempt for failure to pay child support as ordered; and (5) in finding him in contempt of court for failure to pay child support, and in denying his motion for a stay of execution on the child support provision of the judgment during the pendency of the appeal. The defendant conceded at oral argument that this fifth claim was moot, and, therefore, we shall not review it. We find no error on the first, second and fourth claims, but error on the third. Accordingly, we remand the case to the trial court with direction to modify the order concerning the payment of the attorney's fees on appeal and to deny the plaintiff's request therefor.

The parties were married on February 24, 1979. During the marriage one daughter was born. The plaintiff commenced a dissolution action in which she sought custody of and support for her daughter. After a hearing on the custody and support issues, the trial court, Conway, J., awarded the plaintiff temporary custody of her daughter and granted a right of reasonable visitation to the defendant, who saw his daughter every weekend at his sister's home, where he was living.

During Easter weekend, Friday, March 28, 1986, to Sunday, March 30, 1986, the daughter stayed with the defendant at his sister's home. The plaintiff later testified that on the following Monday she had found blood on her daughter's underwear, and cuts and lacerations on her daughter's vagina. She took her daughter that day to the emergency room at William Backus Hospital in Norwich. David Schoon, a pediatrician, examined the daughter. He noted in a report, later introduced into evidence, that there were fresh abrasions in her vagina, and fresh rashes in her rectum. His report raised the possibility of sexual abuse. Eight days later, Robert Meier, a psychologist, interviewed the daughter concerning the cause of her vaginal irritation. The daughter indicated that her father had caused the injuries to her vagina, although she later refused to tell state police trooper Kathleen Ackerman how these injuries had taken place.

After a full hearing concerning the plaintiff's allegation that the defendant had sexually abused his daughter, the trial court, Hon. Eli L. Cramer, state trial referee, rendered final judgment on October 2, 1986, and dissolved the marriage of the parties. It awarded custody of the daughter to the plaintiff, and also ordered that the defendant have visitation with his daughter for one day a week for four hours under the supervision of the Family Relations Division of the Superior Court. The court later ordered the defendant to pay the plaintiff $500 as an allowance for her attorney's fees for this appeal. On February 17, 1987, the trial court, R. O'Connell, J., found the defendant in contempt because he had failed to meet his child support obligations, and on March 2, 1987, ordered him to pay the plaintiff $300 for the attorney's fees she incurred as a result of the contempt proceeding.

I

The defendant claims that the court erred in restricting his visitation rights with his daughter without making a specific finding that there was clear and convincing evidence that he had sexually abused her. He contends that a finding of parental sexual abuse in child custody actions requires a standard of proof higher than the preponderance of the evidence test ordinarily applicable in civil actions. We note initially that the trial court indicated that it had not applied the standard of proof that would be required in a criminal trial, proof beyond a reasonable doubt, but did not further specify what standard of proof it had applied.

In Cookson v. Cookson, 201 Conn. 229, 233-41, 514 A.2d 323 (1986), we rejected the claim that a clear and convincing standard of proof should be required in proceedings involving the modification of custody orders, and held that the ordinary preponderance of the evidence standard should apply. The defendant contends that a higher standard of proof should apply in custody cases in which there are allegations of sexual abuse because a parent so accused must bear a substantial social stigma when a court in a custody case concludes that he has sexually abused his child. He conceded at oral argument, however, that no jurisdiction has thus far required clear and convincing evidence in custody cases in which there are allegations of sexual abuse.

In custody cases we are concerned with "the best interests of the child"; General Statutes § 46b-56(b); ¹ rather than with the social standing of the parents in the community. We believe that a preponderance of the evidence standard adequately protects a parent from false accusations of sexual abuse, and that the ordinary civil standard of proof better serves the strong societal interest in protecting children from abusive parents. See Cookson v. Cookson, supra.

In Santosky v. Kramer, 455 U.S. 745, 769-70, 102 S.Ct. 1388, 1403, 71 L.Ed.2d 599 (1982), the United States Supreme Court held that in proceedings in which a permanent deprivation of parental rights may result, such as a termination of parental rights hearing, due process requires that a state prove statutory termination criteria by "clear and convincing evidence" rather than by a "fair preponderance of the evidence." The defendant argues that when a court in a custody hearing determines that a parent has sexually abused his child it attaches a permanent stigma to that parent's reputation. He contends that such a stigma is similar to a permanent deprivation of parental rights.

The trial court's judgment, however, provides that at the end of a one year period, during which the defendant is required to attend counseling sessions, "the Family Relations Department, in a mediation session, if the office feels it appropriate, shall arrange an appropriate visitation schedule. If the Family Relations Department desires, or the parties cannot agree, the matter is to be returned to this court which retains jurisdiction." The present restrictions on the defendant's visitation rights are temporary, not permanent. Moreover, the defendant still has the opportunity to visit his daughter four hours a week, and, thus, it cannot be said that the trial court has completely severed the relationship between him and his child, as was the case in Santosky v. Kramer, supra. We have held that proof by a preponderance of the evidence rather than by clear and convincing evidence applies in temporary custody hearings; In re Juvenile Appeal (83-CD), 189 Conn. 276, 299-300, 455 A.2d 1313 (1983); and in neglect proceedings; In re Juvenile Appeal (84-AB), 192 Conn. 254, 262-65, 471 A.2d 1380 (1984); because they do not involve a permanent termination of parental rights.

We conclude that the trial court was not required to apply a clear and convincing evidence standard of proof in this case. We hold that the normal civil standard of proof, which is a fair preponderance of the evidence, is applicable in child custody hearings in which there are allegations that a parent has sexually abused his child, at least where that parent retains some visitation rights, which may be reasonably restricted to protect "the best interests of the child." General Statutes § 46b-56(b).

II

The defendant also claims that, even if a preponderance of the evidence standard of proof was appropriate, the evidence was insufficient to support the conclusion of the trial court that the defendant "father ha[d] acted in a sexually inappropriate manner towards the child."

During his interview, the court appointed psychologist, Meier, asked the daughter what had caused her vaginal injuries. She replied, "It was daddy." Meier then asked her if her statement was the truth, and she said, "Yes." Meier later testified that, after she had made this statement, "[t]he child was visibly shaken and scared." The defendant argues that the statement of the child was unreliable. About one week after her interview with Meier, the child refused to tell state police trooper Ackerman who had injured her vagina, although during that same day she had said to Meier, "It was me and daddy." The defendant contends that Meier coerced his daughter into making statements implicating him in sexual abuse.

There was substantial circumstantial evidence, however, to corroborate the daughter's statements. The pediatrician, Schoon, testified, as an expert witness, that the daughter's vaginal injuries were "most likely" the result of sexual abuse. The defendant argues that this testimony related only to a possibility and, therefore, was legally insufficient to establish that the child had been sexually abused. We conclude, however, that Schoon's testimony was expressed in terms of reasonable medical probabilities, and, therefore, was sufficient to establish causation. Struckman v. Burns, 205 Conn. 542, 553-55, 534 A.2d 888 (1987...