O'Neill v. O'Neill

• Decision Date: 10 March 1988
• Docket Number: No. 4932,4932
• Citation: 536 A.2d 978,13 Conn.App. 300
• Court: Connecticut Court of Appeals
• Parties: , 56 USLW 2495 Elizabeth O'NEILL v. Edward O'NEILL.

Page 978

536 A.2d 978

13 Conn.App. 300, 56 USLW 2495

Elizabeth O'NEILL v. Edward O'NEILL.

No. 4932.

Appellate Court of Connecticut.

Argued Nov. 5, 1987.

Decided Jan. 26, 1988.

Certification Denied March 10, 1988.

Abraham I. Gordon, with whom were Ronald D. Japha and, on the brief, Richard S. Scalo, Bridgeport, for appellant (plaintiff).

Reuben S. Midler, Norwalk, for appellee (defendant).

Before DUPONT, C.J., and STOUGHTON and FOTI, JJ.

DUPONT, Chief Judge.

The plaintiff wife appeals from the judgment rendered in this fully contested dissolution action, challenging the custody and financial awards ordered by a state trial referee acting as the trial court. The court dissolved the parties' marriage and awarded sole custody of their minor child to the defendant husband, with limited visitation rights in the plaintiff. The court awarded the plaintiff rehabilitative alimony in the amount of $200 per week for a duration of two years. The court did not award the plaintiff any lump sum property settlement nor did it order the defendant to pay the plaintiff's counsel fees.

The plaintiff has raised four claims of error on appeal. She argues that the trial court erred (1) in awarding custody of the minor child to the defendant, (2) in refusing to award counsel fees to the plaintiff, (3) in refusing to award to the plaintiff a lump sum distribution as a property settlement, and (4) in awarding rehabilitative alimony for only a two year duration. We find error.

I

We first address the issue of custody. In its memorandum of decision, the trial court found that the parties were hostile toward one another and that the child would benefit the most by living in the home that offers the most stability. The trial court reviewed the background of the parties and noted that the "plaintiff has been confined to a psychiatric hospital in her youth, has suffered from severe chronic depression, had a problematic and sad life from childhood, is functionally disabled at times and needs to receive drug treatments which she has refused." The attorney for the child recommended that custody be awarded to the plaintiff. A family relations case study report which was written thirteen months prior to the court's determination of custody was introduced at trial. The trial court stated that the "Domestic Relations Officer has written an extensive report in this case based on a very good investigation and has recommended custody of Jennifer to be in the defendant as the parent who tends to be more secure." On the basis of the thirteen month old family relations case study report and all other evidence, the court awarded sole custody of the minor child to the defendant with the plaintiff to have specified visitation rights.

Our standard of review in domestic relations cases is a very narrow one. We will not reverse a trial court's rulings with regard to custody and financial orders unless the court incorrectly applied the law or could not reasonably have concluded as it did. Timm v. Timm, 195 Conn. 202, 210, 487 A.2d 191 (1985).

In making a determination of custody, the governing standard is the best interests of the child. General Statutes § 46b-56; Yontef v. Yontef, 185 Conn. 275, 282, 440 A.2d 899 (1981). "[T]he court [is] bound to consider the child's present best interests and not what would have been in her best interests at some previous time." (Emphasis in original.) In re Juvenile Appeal (Anonymous), 177 Conn. 648, 664, 420 A.2d 875 (1979); see also Guss v. Guss, 1 Conn.App. 356, 361, 472 A.2d 790 (1984).

The court below erred in failing to consider the present best interests of the child when it determined the issue of custody. The court's recitation of the plaintiff's past medical history in its memorandum of decision does not focus on the present abilities or infirmities of the plaintiff as they may affect her ability to be a primary caretaker of the child. The references therein to the plaintiff's confinement to a psychiatric hospital, chronic depression, a problematic and sad childhood, children born out of wedlock, and life on welfare are all past events. Furthermore, the family relations custody report was thirteen months old at the time of its introduction into evidence. To compound its error in relying on outdated evidence which is not probative of present parenting abilities, the trial court admitted that it placed great weight on the written report: "The report had a great influence in this case, there's no question about it."

At trial, the domestic relations officer testified that after his completion of the custody report in October of 1984, he had no contact with the parties or the minor child except for one meeting thereafter. Most significant, however, is his testimony that due to the passage of time he could not competently testify as to whether the parties' stability and security had changed since his report.

We recognize that a party's prior conduct and past medical condition may have a direct bearing on his or her present fitness to be a custodial parent. "In the exercise of its awesome responsibility to find the most salutory custodial arrangement for the children of divorce, the court must ... take account of the parents' past behavior, since it must evaluate their present and future parenting ability and the consistency of their parenting for the purpose of determining which parent will better foster the children's growth, development and well-being." Yontef v. Yontef, supra, 185 Conn. at 283, 440 A.2d 899. At the same time, however, the focus of the court's inquiry must be designed to meet the primary objective which is to determine the present parenting ability of the parties. Based upon the facts and conclusions as set forth in the trial court's memorandum of decision, it is evident to this court that the trial court did not consider those paramount interests.

Ordinarily, a finding of error in the trial court's order of custody would require custody to revert to the status quo ante until a new hearing is held. We are aware, however, that the minor child has been living with the defendant for more than two years and that the best interests of the child might not be served by requiring the child to return to the plaintiff's residence pending a new hearing. Our supervisory power, pursuant to Practice Book §§ 2000 and 4183, "includes the power to make appropriate postappeal orders. See In re Juvenile Appeal (83-BC), 189 Conn. 66, 81, 454 A.2d 1262 (1983)." Guss v. Guss, supra, 1 Conn.App. at 365, 472 A.2d 790 (Borden, J., concurring). In order to "[protect] the primary interests of the [child] in a continuous, stable custodial placement"; Yontef v. Yontef, supra, 185 Conn. at 291-92, 440 A.2d 899; we order that physical custody of the child remain with the defendant until the trial court has had an opportunity to address the issue of custody at a new hearing.

II

The second claim of error raised by the plaintiff is that the trial court erred in not awarding her any counsel fees. The trial court originally made no specific ruling on the issue of counsel fees. On a motion for articulation, the court denied the plaintiff's request for counsel fees on the ground that she had commenced the case: "If she were the defendant in this case I always order a fee because she's required to defend herself when the husband brings suit against her." The plaintiff argues that the court has misconstrued the basis for an award of counsel fees. We agree.

Pursuant to General Statutes § 46b-62, a trial court has the discretion to award counsel fees to a party in a dissolution action "in accordance with their respective financial abilities and the criteria set forth in Section 46b-82," including length of the marriage, causes for the dissolution of the marriage, the age, health, station, occupation, amount and sources of income, vocational skill, employability, estate and needs of each party. Holley v. Holley, 194 Conn. 25, 34, 478 A.2d 1000 (1984); Szilagyi v. Szilagyi, 3 Conn.App. 25, 28, 484 A.2d 469 (1984).

The unambiguous language of § 46b-62 makes it clear that the statutory authorization for awarding counsel fees is not dependent on the status of a spouse as plaintiff or defendant. It was, therefore, improper for the trial court to determine the issue of counsel fees in a dissolution action on the basis of party status. Rather, the proper inquiry should have focused on the statutory criteria.

The undisputed facts show that the plaintiff did not have the funds available with which to pay for her counsel fees, whereas, the defendant did. " 'Courts ordinarily award counsel fees in divorce cases so that a party (usually the wife) may not be deprived of her rights because of lack of funds. Krasnow v. Krasnow, 140 Conn. 254, 265, 99 A.2d 104 (1953); Steinmann v. Steinmann, 121 Conn. 498, 504, 186 A. 501 (1936).' Ridolfi v. Ridolfi, 178 Conn. 377, 380, 423 A.2d 85 (1979)." Koizim v. Koizim, 181 Conn. 492, 501, 435 A.2d 1030 (1980). These rights exist regardless of whether a party is a plaintiff or a defendant.

Although the trial court is not obligated to make express findings on each of the criteria enumerated in § 46b-82; Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982); the memorandum of decision must at least reflect that the trial court properly considered and weighed the factors set forth in the statute in determining the granting of attorney's fees. Holley v. Holley, supra, 194 Conn. at 31-32, 478 A.2d 1000; Szilagyi v. Szilagyi, supra, 3 Conn.App. at 29, 484 A.2d 469. It is apparent from the trial court's remark that it would have ordered counsel fees if the plaintiff were the defendant. That articulation makes it clear that the court did not properly apply the law.

III

The plaintiff next argues that the trial court erred in refusing to award a lump sum property settlement. General Statutes § 46b-81 provides that the court in a dissolution action may assign to either spouse all or any part of...