Martocchio v. Savoir, 35741.

CourtAppellate Court of Connecticut
Citation153 Conn.App. 492,101 A.3d 953
Decision Date14 October 2014
Docket NumberNo. 35741.,35741.
PartiesHenry J. MARTOCCHIO v. Stephanie SAVOIR et al.

153 Conn.App. 492
101 A.3d 953

Henry J. MARTOCCHIO
v.
Stephanie SAVOIR et al.

No. 35741.

Appellate Court of Connecticut.

Argued May 12, 2014.
Decided Oct. 14, 2014.


101 A.3d 954

Henry J. Martocchio, self-represented, the appellant (plaintiff).

JoAnn Paul, Vernon, for the appellees (defendant Roland Savoir et al.).

DiPENTIMA, C.J., and LAVINE and MULLINS, Js.

Opinion

DiPENTIMA, C.J.

153 Conn.App. 494

The plaintiff, Henry J. Martocchio, appeals from the judgment of the trial court denying several of his motions relating to his minor child. Although the plaintiff has raised a number of claims on appeal, the dispositive issue is whether the trial court found that the defendant grandparents, Roland Savoir and Tina Savoir, satisfied the standing test for a third party visitation contrary to the wishes of a fit parent as articulated by our Supreme Court in Roth v. Weston, 259 Conn. 202, 789 A.2d 431 (2002), and General Statutes § 46b–59.1 We conclude that this threshold finding was not made by the trial court, and, accordingly we remand the case for further proceedings.

The following detailed recitation of the facts and procedural history is necessary to understand the complicated morass that confronted the Probate Court and the Superior Court. The plaintiff and the defendant Stephanie Savoir,2 who never married, are the parents of the minor child, born in January, 2004. See Martocchio v. Savoir, 130 Conn.App. 626, 629, 23 A.3d 1282, cert. denied, 303 Conn. 901, 31 A.3d 1178 (2011). The plaintiff initially was not aware that he was the father

153 Conn.App. 495

of the child, and another individual was listed on the minor child's birth certificate.

On April 13, 2006, the defendants filed an application in the Probate Court for the district of Tolland for immediate temporary custody of the child. They alleged that their daughter, Stephanie Savoir, had returned home intoxicated and became argumentative and physically violent. After leaving for a period of two and one half hours, she returned and again was physically violent. The defendants requested assistance from the police, who arrested Stephanie Savoir.

Stephanie Savoir had informed the defendants that she would take the minor child to her boyfriend's apartment. The defendants expressed concern that this would be an unsuitable environment because they had been told that this individual previously had placed a knife to Stephanie Savoir's throat. The Probate Court

101 A.3d 955

issued a decree awarding temporary custody of the minor child to the defendants. The defendants later successfully moved to be appointed as guardians of the minor child and to have Stephanie Savoir removed as guardian.

In a letter dated May 22, 2006, Stephanie Savoir informed the plaintiff that he was the father of the minor child. On July 3, 2006, the plaintiff filed a paternity claim in the Probate Court, and subsequent DNA testing confirmed he is the father of the minor child.3 On August 10, 2006, the plaintiff requested temporary custody of the minor child and later moved to be appointed as the minor child's sole guardian. The minor child was diagnosed with autism spectrum disorder at some point during that month. On September 18, 2006, the Probate

153 Conn.App. 496

Court decreed that the defendants continue having temporary custody of the minor child and ordered the plaintiff to have supervised visitation with the minor child.

On September 25, 2006, the Department of Children and Families completed an assessment and did not recommend that the plaintiff be awarded temporary custody or guardianship of the minor child. The assessment, however, recommended that the plaintiff have unsupervised visitation with the minor child. The next day, after the parties reached an agreement, the Probate Court awarded the plaintiff unsupervised visitation with the minor child.

On November 13, 2006, the plaintiff moved to transfer the matter to the Superior Court, which the Probate Court granted. In December, 2006, the plaintiff moved, inter alia, for an order of reasonable visitation and for custody. On January 8, 2007, the court, Shluger, J., in accordance with the agreement of the parties, awarded the plaintiff visitation at his residence. In March, 2007, the parties agreed to further visitation between the plaintiff and the minor child.

On September 25, 2007, the plaintiff moved for an order of immediate temporary custody of the minor child. Judge Shluger approved an agreement of the parties and ordered that the plaintiff have sole legal custody of the minor child and that the child live with the plaintiff. The defendants were granted visitation every other weekend. On January 24, 2008, the plaintiff moved to modify the visitation award. The parties again reached an agreement that the court accepted and ordered.

A dispute about medical treatment for the minor child led the defendants to file an ex parte motion for an immediate hearing and a motion for order to enjoin medical treatment in March, 2008. The plaintiff responded by filing a motion for contempt, alleging that the defendants were violating the prior agreement of

153 Conn.App. 497

the parties relating to visitation. On March 23, 2008, the plaintiff filed a motion to terminate the defendants' visitation with the minor child. His motion alleged the following: “I ... ask the court to consider any past agreements with [the defendants] regarding unsupervised vitiation with my son ... null and void due to their behavior, possible neglect, constant conflict regarding child's health care and safety, the child's safety at the third party residence, attempted strain of father-son relationship, constant accusations of intent to harm, and not respecting the wishes of the father with respect to the case of the child.” The plaintiff

101 A.3d 956

also referenced the seminal case of Roth v. Weston, supra, 259 Conn. at 202, 789 A.2d 431.

Both parties then filed additional motions. On April 2, 2008, the defendants filed a motion for contempt and a motion to modify, seeking custody of the minor child. On April 23, 2008, the plaintiff filed a motion to dismiss the defendants' motion to modify for lack of subject matter jurisdiction. In the accompanying memorandum of law, the plaintiff argued, inter alia, that the defendants had not filed a petition alleging that they had a relationship with the child akin to that of a parent or that denial of visitation would cause real and significant harm to the child, as required by Roth.

On July 28, 2008, Judge Shluger issued a memorandum of decision addressing a number of motions filed by the parties. The court found, by a preponderance of the evidence, that the defendants “have a relationship with the child akin to that of parents.” The court made no findings regarding the harm that would result from terminating the defendants' visitation. It also found that the plaintiff was a fit parent.4 The court ordered that the plaintiff have sole custody of the minor child, but

153 Conn.App. 498

that the defendants have visitation every other weekend. With respect to the plaintiff's “motion to dismiss the [defendants'] visits and motion to dismiss for subject matter jurisdiction,” the court stated that these motions were “addressed in these orders.”

On September 26, 2011, Stephanie Savoir consented to the termination of her parental rights. On September 4, 2012, the defendants filed a motion for contempt, alleging that the plaintiff had refused their visitations with the minor child since June 2, 2012. They further claimed that his actions had violated Judge Shluger's July 28, 2008 order. The plaintiff then filed numerous motions, including: (1) a motion for counsel for the minor child and the guardian ad litem; (2) motions for attorney's fees, expert witness fees, filing fees and transcript fees; (3) a motion for updated family relations investigation; (4) a motion to dismiss the defendants' contempt motion due to lack of standing; (5) a motion to dismiss for lack of standing because termination of Stephanie Savoir's parental rights voided the defendants' visitation; (6) a motion to dismiss due to lack of subject matter jurisdiction that alleged discrimination under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and lack of standing of the defendants; (7) a motion to transfer the case; and (8) a motion to dismiss the contempt motion due to lack of standing and subject matter jurisdiction. On February 13, 2013, the court, Abery–Wetstone, J., ordered the parties to submit briefs regarding the court's jurisdiction following the termination of Stephanie Savoir's parental rights.

On May 17, 2013, Judge Abery–Wetstone issued a memorandum of decision. She concluded that the termination of Stephanie Savoir's parental rights did not automatically terminate the visitation rights previously

153...

To continue reading

Request your trial
8 cases
  • Sousa v. Sousa
    • United States
    • Connecticut Supreme Court
    • August 30, 2016
    ...modification to the judgment is not so entrenched in time as to be invulnerable from collateral attack. See Martocchio v. Savoir, 153 Conn.App. 492, 504 n. 9, 101 A.3d 953 (2014) (five years not “substantial” enough period to foreclose collateral attack based on subject matter jurisdiction,......
  • Sousa v. Sousa
    • United States
    • Connecticut Supreme Court
    • August 30, 2016
    ...modification to the judgment is not so entrenched in time as to be invulnerable from collateral attack. See Martocchio v. Savoir, 153 Conn. App. 492, 504 n.9, 101 A.3d 953 (2014) (five years not "substantial" enough period to foreclose collateral attack based on subject matter jurisdiction,......
  • Town of Bethlehem v. Acker
    • United States
    • Connecticut Court of Appeals
    • October 14, 2014
  • Fuller v. Baldino
    • United States
    • Connecticut Court of Appeals
    • September 19, 2017
    ...789 A.2d 431. Furthermore, the petition must state with specificity the type of harm the child will suffer. See Martocchio v. Savoir , 153 Conn.App. 492, 502, 101 A.3d 953 (2014) ; see also Fennelly v. Norton, supra, 103 Conn.App. at 140–41, 931 A.2d 269 (merely checking box on application ......
  • Request a trial to view additional results
1 books & journal articles
  • 2014 Connecticut Appellate Review
    • United States
    • Connecticut Bar Association Connecticut Bar Journal No. 89, September 2015
    • Invalid date
    ...149 Conn.App. 799, 90 A.3d 300 (2014). [90] 147 Conn.App. 794, 84 A.3d 466 (2014). [91] 151 Conn.App. 264, 95 A.3d 1132 (2014). [92] 153 Conn.App. 492, 101 A.3d 953 (2014). [93] 147 Conn.App. 829, 83 A.3d 1249, cert, denied, 311 Conn. 923, 86 A.3d 466 (2014). [94] 151 Conn.App. 710, 94 A.3d......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT