Schult v. Schult

• Decision Date: 22 July 1997
• Docket Number: No. 15418,15418
• Citation: 241 Conn. 767,699 A.2d 134
• Court: Connecticut Supreme Court
• Parties: Cheryl SCHULT v. Jeffrey Scot SCHULT.

Page 134

699 A.2d 134

241 Conn. 767

Cheryl SCHULT v. Jeffrey Scot SCHULT.

No. 15418.

Supreme Court of Connecticut.

Argued Jan. 15, 1997.

Decided July 22, 1997.

Elizabeth Gleason, Milford, with whom, on the brief, were Mary Ann Barile, East Haven, and Lucy W. Rankin, Bridgeport, for appellant (guardian ad litem of Minor child).

Yvonne M. Shoff, Certified Legal Intern, with whom was Carolyn Wilkes Kaas, Hamden, for appellee (plaintiff).

Linda P. Dunphy, with whom, on the brief, was John C. Kucej, Waterbury, for appellee (defendant).

John J. Bennett, Ansonia, for appellee (intervenor Joan Radin).

Colette S. Griffin, with whom, on the brief, was Robert P. Murphy, Legal Intern, for appellee (minor child).

Louis I. Parley, Gary Cohen, New Haven, Gaetano Ferro, New Canaan, and Arnold Rutkin, Westport, filed a brief for the American Academy of Matrimonial Lawyers, Connecticut Chapter, as amicus curiae.

Before BORDEN, BERDON, KATZ, PALMER and McDONALD, JJ.

BORDEN, Associate Justice.

The sole issue in this certified appeal is whether an attorney representing a minor child in connection with a custody dispute may advocate a position that is contrary to that of the child's guardian ad litem. The plaintiff, Cheryl Schult, brought this dissolution of marriage action against the defendant, Jeffrey Scot Schult, seeking, inter alia, custody of their only child. The child's maternal grandmother, Joan Radin, intervened in the dissolution action pursuant to General Statutes § 46b-57. ¹ The trial court appointed both an attorney and a guardian ad litem for the child. The guardian ad litem appeals from the judgment of the Appellate Court, which affirmed the judgment of the trial court granting sole custody to the intervenor and visitation rights to the plaintiff and the defendant. See Schult v. Schult, 40 Conn.App. 675, 681-82, 672 A.2d 959 (1996). We conclude that the trial court did not abuse its discretion in determining that it was in the best interests of the child to permit the child's attorney to advocate a position regarding custody that was contrary to the position of the guardian ad litem. Accordingly, we affirm the judgment of the Appellate Court.

The following factual and procedural history is undisputed. The plaintiff and the defendant were married on February 14, 1986. Their only child was born approximately two and one-half years later, and has a history of emotional, psychological and developmental problems. On March 7, 1991, the plaintiff brought the present dissolution action against the defendant seeking, inter alia, custody of their child. The defendant filed a cross complaint in which he, too, sought custody of the child.

On April 18, 1991, the defendant moved out of the family home. On that same date, Steve Norman moved into the family home as a boarder. The plaintiff and Norman have resided together since that time and now have plans to marry. On August 16, 1991, upon motion by the defendant, the trial court, Jones, J., appointed Colette Griffin as the child's attorney.

The following additional facts are set forth in the Appellate Court opinion. "On the evening of November 19, 1991, Norman was baby-sitting while the plaintiff, a licensed nurse practitioner, was at work. The child was three years old at the time. Norman testified that about five minutes after the child had gone to bed, he came out of the bedroom and was crying. Norman observed that the child had a mark above his eye and treated the injury with an ice pack. After fifteen to twenty minutes, the child stopped crying and went back to bed. The following morning, Norman noticed that the child was limping and would not put any pressure on his leg. When the plaintiff returned home at 7:30 a.m., Norman told her that 'we've got a problem.'

"The plaintiff called Karen Laugel, their pediatrician, who was in her office in Bridgeport. The plaintiff and Norman took the child in the plaintiff's car to Laugel's office. After examining the child, Laugel stated that 'it looks like a broken leg.' Feeling that the child's injury was 'very worrisome for the possibility of abuse' and that the child's injury could not 'be explained by falling out of the bed,' Laugel instructed the plaintiff and Norman to bring the child to Bridgeport Hospital where the child could be treated for his injury and where an investigation would be initiated for child abuse. Laugel also told the plaintiff and Norman that she would meet them at the hospital shortly.

"The plaintiff and Norman then took the child to the University of Connecticut Health Center, John Dempsey Hospital (Dempsey Hospital), where the child was admitted on November 20, 1991. After approximately two hours at the hospital, Norman told the plaintiff that he had to go home and feed the animals and left the hospital. After remaining at home for approximately two hours, Norman then drove the plaintiff's car to Stratford, where he checked into a Days Inn at about 8:30 p.m. The following day, November 21, Norman drove around New York City and returned to the Days Inn in Stratford for the evening. On November 22, Norman drove to the Boston area and checked into a motel in Devon, Massachusetts. On November 23, three days after he had left the hospital, Norman returned to Dempsey Hospital. The doctors at Dempsey Hospital did not conclude that the child had been abused and released the child to the plaintiff on November 25. The child's discharge diagnosis stated that he had suffered a fractured leg. ²

"At the request of Laugel, the department of children and family services [department] conducted an investigation for abuse. After meeting with the child, the plaintiff, Norman, and several doctors at Dempsey Hospital, [the department] concluded that the origin of the child's injury was unknown and that abuse could not be confirmed." Schult v. Schult, supra, 40 Conn.App. at 677-679, 672 A.2d 959.

On January 3, 1992, Radin intervened in the dissolution action, and the trial court, Sequino, J., ordered that temporary joint custody be awarded to the plaintiff and the intervenor, with physical residence with the intervenor. The child has resided with the intervenor since January 3, 1992. Id. at 677 n. 2, 672 A.2d 959. On December 4, 1992, upon motion by the plaintiff, the trial court, Jones, J., appointed Elizabeth Gleason as the child's guardian ad litem.

The trial began on November 1, 1993, before Hon. Thomas J. O'Sullivan, judge trial referee. At the trial, the guardian ad litem was called as a witness during the plaintiff's case-in-chief and testified that custody should be awarded to the plaintiff. The guardian ad litem was the only witness, other than the plaintiff and Norman, to testify that the child's safety would not be endangered by awarding custody to the plaintiff. Allen Rubin the family relations officer who conducted a review of the case, testified that it was in the child's best interest that custody be awarded to the intervenor. Sidney Horowitz, the child's and plaintiff's treating psychologist who conducted a court-ordered evaluation of the child, expressed serious concerns for the child's safety in Norman's presence and recommended that custody be awarded to the intervenor. Laugel testified that the child was not safe in the plaintiff's custody. Margaret Kunsch, the child's clinical social worker at the Parent Child Resource Center, testified that it would be detrimental to the child to remove him from the intervenor's custody. Kunsch also testified that the child considered "home" to be with the intervenor and had made "remarkable progress" within the past three months.

The child's attorney did not testify; rather, she participated in the trial by calling witnesses and conducting direct and cross-examination. The guardian ad litem and the plaintiff objected during the trial to the line of questioning by the child's attorney and requested that the trial court order her to ask the witnesses questions prepared by the guardian. The trial court, however, overruled their objections.

At the conclusion of the evidence, the trial court heard final arguments from all of the attorneys in the case, including the child's attorney, who argued that custody should be awarded to the intervenor. Both the plaintiff and the guardian ad litem objected to the closing argument by the child's attorney. The trial court overruled their objections.

The trial court rendered judgment granting sole custody to the intervenor pursuant to General Statutes § 46b-56b, ³ with visitation rights to the plaintiff and the defendant. ⁴ In its memorandum of decision, the trial court found " 'as a fact that [the child's] leg was broken by [Norman], that [Norman] told [the plaintiff] when she came home what he had done and they both decided to tell the story that [the child's] leg was broken while [he] was alone in the bedroom in bed. When they told [Laugel] they did not know what happened to [the child], [Laugel] told them that she felt there was some abuse involved and that an investigation would be made for child abuse. They did not follow the doctor's order to go to Bridgeport Hospital but went eventually to [Dempsey Hospital] in Farmington. [Norman] left that hospital as soon as he could and testified that he wanted to get away, that he did not know what was going to happen to him. Under these circumstances, it is clear that it would not be in the best interest of [the child] for him to be given into [the plaintiff's] custody with [Norman] there, knowing that he got away with breaking [the child's] leg as the court has found and with the opportunity to abuse [the child] further. The court cannot conceive of a situation more detrimental to [the child] than to permit [the plaintiff] to have custody of [the child] now. Under the above circumstances, [the plaintiff] sided with [Norman] against [the child]. She should not be given the opportunity to do that again.' " Schult v. Schult, supra, 40 Conn.App. at 680-81, 672 A.2d...