Schult v. Schult

• Citation: 40 Conn.App. 675,672 A.2d 959
• Decision Date: 19 March 1996
• Docket Number: No. 13482,13482
• Court: Appellate Court of Connecticut
• Parties: Cheryl SCHULT v. Jeffrey Scot SCHULT.

Page 959

672 A.2d 959

40 Conn.App. 675

Cheryl SCHULT v. Jeffrey Scot SCHULT.

No. 13482.

Appellate Court of Connecticut.

Argued Oct. 3, 1995.

Decided March 19, 1996.

Plaintiff's Petition For Certification

Denied May 9, 1996. Guardian ad litem's

Petition For Certification Granted For

Limited Issue May 9, 1996.

Carolyn Wilkes Kaas, with whom, on the brief, were Susan Cartier and Ronald DeMatteo, Certified Legal Interns, for appellant (plaintiff).

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

Elizabeth Gleason, guardian ad litem.

Colette Griffin, for the minor child.

Before DUPONT, C.J., and EDWARD Y. O'CONNELL and LANDAU, JJ.

DUPONT, Chief Judge.

This appeal arises from the judgment dissolving the marriage between the plaintiff, Cheryl Schult, and the defendant, Jeffrey Scot Schult. The plaintiff and the defendant had only one child, who was born on October 6, 1988. The principal issue in this appeal is the proper construction and application of General Statutes § 46b-56b, ¹ which creates a rebuttable presumption "that it is in the best interest of the child to be in the custody of the parent" in any dispute as to the custody of a minor child involving a parent and a nonparent. The trial court relied on a "showing that it would be detrimental to the child to permit the parent to have custody," as provided in the statute, to rebut that presumption. Accordingly, the court awarded sole physical and legal custody of the child to his maternal grandmother, Joan Radin, who is an intervenor in the dissolution action. ² The plaintiff appeals from that judgment and from a subsequent judgment rendered on two postjudgment motions. ³

The plaintiff filed a dissolution action on March 7, 1991, seeking (1) dissolution of her marriage to the defendant, (2) custody of their child, (3) child support, (4) alimony and (5) reasonable counsel fees. The defendant filed a cross complaint on April 26, 1991, which did not dispute the relief of dissolution of marriage, but which sought (1) custody of the child, (2) in the alternative to sole custody, joint legal custody of the child, and (3) child support.

In order to understand fully the unfortunate situation with which the trial court was confronted, it is necessary to spell out in some detail the background of the parties and the sequence of events that led to this appeal. ⁴ The plaintiff was married to the defendant on February 14, 1986. Their child has a history of emotional and psychological problems and developmental delays.

On April 18, 1991, shortly after the action for dissolution of marriage was initiated, the defendant moved out of the family home. On that same date, Steve Norman moved into the family home as a boarder. 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 Carol 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. ⁵

At the request of Laugel, the department of children and family services (DCF) conducted an investigation for abuse. After meeting with the child, the plaintiff, Norman, and several doctors at Dempsey Hospital, DCF concluded that the origin of the child's injury was unknown and that abuse could not be confirmed.

On January 3, 1992, Radin filed a motion for third party intervention pursuant to General Statutes § 46b-57, ⁶ asserting that she was the child's maternal grandmother. On that same day, the trial court granted the motion and issued the following oral order regarding the custody of the child: "I'm going to say that this was the attorneys agreement. That there would be joint legal custody in the mother and the maternal grandmother with primary physical residence with the maternal grandmother." After that order, the custody battle became increasingly bitter and was marked by disputes between the plaintiff and the intervenor concerning visitation rights. Almost three years after the initiation of the underlying matter, and over two years after the date of the child's injury, the trial court rendered judgment, granting sole physical and legal custody of the child to the intervenor.

In its accompanying memorandum of decision, the trial court made the following finding: "The court finds as a fact that [the child's] leg was broken by Steve [Norman], that Steve told Cheryl [Schult] 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 Dr. Laugel they did not know what happened to [the child], Dr. 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 John Dempsey Hospital in Farmington. Steve 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 Cheryl's custody with Steve 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] to permit Cheryl to have custody of [the child] now. Under the above circumstances, Cheryl sided with Steve against [the child]. She should not be given the opportunity to do that again." (Emphasis added.)

Upon rendering judgment awarding sole physical and legal custody of the child to the intervenor, the trial court also ordered that the plaintiff shall have rights of "reasonable visitation" with the child and specifically ordered that the plaintiff "shall have visitation on Saturdays from 2:30 p.m. to 12:00 p.m. on Sundays, and one weekday afternoon per week." On April 6, 1994, the plaintiff filed a motion for contempt and order, claiming that the intervenor had willfully failed to comply with the court's order of visitation. The intervenor then filed a motion for modification on May 26, 1994, requesting the court to terminate the plaintiff's right to overnight visitation. The intervenor's motion for modification also sought a court order preventing the plaintiff from conducting visitation at the plaintiff's residence and from conducting visitation when Norman is present. After conducting hearings, the trial court issued a second memorandum of decision on August 1, 1994, in which it denied the intervenor's motion for modification. The trial court did not grant the plaintiff's motion for contempt, and issued an order permitting the plaintiff to have the child for overnight visitation each weekend and for visitation one afternoon each week.

On appeal, the plaintiff claims the trial court (1) improperly concluded that the intervenor should be awarded custody of the child and that it would be detrimental to him to be in the custody of the plaintiff because the court misconstrued § 46b-56b, and made factual findings not supported by the evidence, (2) failed to issue orders to assist the family in eventual reunification and improperly allowed the attorney for the minor child to argue against the recommendation of the child's guardian ad litem, and (3) improperly granted temporary custody of the minor child to the intervening nonparent. We affirm the judgment of the trial court.

I

We note initially that "[t]he factual findings of a trial court on any issue are reversible only if they are clearly erroneous.... This court cannot retry the facts or pass upon the credibility of the witnesses.... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing cou...