Thunelius v. Posacki
| Decision Date | 22 October 2019 |
| Docket Number | AC 40635 |
| Citation | 193 Conn.App. 666,220 A.3d 194 |
| Parties | Gerald THUNELIUS v. Julia POSACKI |
| Court | Connecticut Court of Appeals |
Samuel V. Schoonmaker IV, with whom, on the brief, was Wendy Dunne DiChristina, for the appellant (defendant).
Alexander J. Cuda, for the appellee (plaintiff).
Lavine, Keller and Bishop, Js.
In this protracted, high conflict custody and support matter, the defendant mother, Julia Posacki, appeals from the judgment rendered by the trial court following a sixteen day trial on the custody action filed by the plaintiff father, Gerald Thunelius. On appeal, the defendant claims that the court improperly (1) delegated its decision-making authority to the guardian ad litem appointed for the parties' minor child, (2) ordered that the prevailing party in any postjudgment dispute adjudicated by the court after unsuccessful mediation with the guardian ad litem be reimbursed by the other party for his or her share of the guardian ad litem's fees, (3) appointed the guardian ad litem without having complied with the requirements of General Statutes §§ 46b-54 and 46b-12, (4) issued a protective order sua sponte, (5) ordered the parties to enroll the child in private school through high school and to share the payments for that schooling, (6) relied on unsupported net income figures on the child support guidelines worksheet prepared by the Judicial Branch, and (7) retroactively modified a pendente lite child support order by effectively forgiving the plaintiff's support arrearage. We agree with the defendant's second and fifth claims and further conclude that the defendant's third claim is moot. Accordingly, we affirm in part and reverse in part the court's judgment, and we dismiss in part the defendant's appeal.
The following facts and procedural history are taken from the court's memorandum of decision or are part of the record.1 The parties, who never married one another, are the parents of a minor child who was born on November 2, 2010. On April 18, 2012, the plaintiff filed an application seeking sole custody of the child, who had been living with the defendant since his birth. The plaintiff also filed motions for pendente lite orders to establish a parenting plan, to appoint a guardian ad litem for the child, and for child support.
At a status conference held on June 20, 2012, the plaintiff's counsel recommended several attorneys for possible appointment as a guardian ad litem for the child, including Attorney Jocelyn B. Hurwitz. The defendant opposed appointing a guardian ad litem, but her attorney agreed that Hurwitz would be an acceptable choice should the court choose to appoint one. At the conclusion of the status conference, the court, Novack, J. , issued an oral pendente lite order appointing Hurwitz as guardian ad litem for the child. The court did not specify Hurwitz' duties or the length of her appointment.
On October 15, 2012, the court, Schofield, J. , approved the parties' pendente lite parenting agreement, pursuant to which the parties were to have joint legal custody of the child, with the defendant having primary physical custody and the plaintiff having parenting time every other weekend and some holidays and vacations. Subsequently, on October 2, 2013, the court, Emons, J. , accepted the parties' stipulation regarding pendente lite financial orders. Pursuant to the pendente lite financial orders, the plaintiff was required to pay the defendant $389 in weekly child support and was required to provide medical and dental insurance for the child if available through his employer. As to the child's unreimbursed medical expenses, qualified child care expenses, and tuition and costs for the Whitby School through June, 2014, the plaintiff was responsible for 52 percent, and the defendant was responsible for 48 percent.2
On February 24, 2014, the defendant filed a motion seeking to hold the plaintiff in contempt for violating the pendente lite financial orders. She alleged that the plaintiff had failed and refused to reimburse her for his share of child care costs in the amount of $4309. She further alleged that the plaintiff unilaterally had reenrolled the child at the Whitby School for the 2014–2015 school year without the defendant's consent in violation of the pendente lite parenting plan and that he had informed her that he intended to deduct from his child support payments the defendant's share of the tuition. The defendant, therefore, requested that the court order the plaintiff to reimburse her for the child care costs, to refrain from making deductions to his child support obligation, and to pay 100 percent of the child's tuition for the Whitby School for the 2014–2015 school year. Subsequently, on May 15, 2014, the plaintiff filed a motion to modify his support obligations under the 2013 pendente lite financial orders, citing a substantial change in circumstances.
A trial to the court, Tindill, J. , on the plaintiff's custody application was conducted over the course of sixteen days between February, 2015 and October, 2016. In her proposed claims for relief filed on September 7, 2016, the defendant sought reimbursement from the plaintiff of $31,586 for child care expenses, $7117 for the child's health insurance premiums, $13,361 for tuition at the Whitby School for the 2014–2015 school year, and the plaintiff's share of all of the child's medical expenses incurred since October 2, 2013.
On June 29, 2017, the court issued a memorandum of decision finding that the plaintiff had rebutted, by a preponderance of the evidence, the presumption of joint legal custody under General Statues § 46b-56a.3 The court, therefore, ordered that the plaintiff have sole legal custody and primary physical custody of the child, with parenting time for the defendant, and that the defendant pay the plaintiff $241 in weekly child support in accordance with the Connecticut child support guidelines. The court further ordered that,
As to the child's education, the court ordered that the child "shall attend the Whitby School until he completes the [eighth] grade or the parties' written stipulation to change schools is approved and made an order of the court, whichever occurs first" and that "[t]he parties shall split the cost, beginning the 2017–2018 academic year, of Whitby School or other private school education 56 [percent] (plaintiff) [and] 44 [percent] (defendant) through [twelfth] grade." The court noted, however, that there was insufficient evidence presented for it to issue an educational support order for the child's education beyond high school pursuant to General Statutes § 46b-56c.
The court further ordered that Hurwitz "shall continue to serve as guardian ad litem ... for the minor child until further order of the court." The court also ordered in relevant part that In reappointing Hurwitz as guardian ad litem, the court did not make an express finding that the appointment was in the child's best interests as required by § 46b-54 (a) ; nor did it give the parties an opportunity to agree on a different person to serve in the role as required by § 46b-12 (a). The court also did not issue a subsequent order that included all of the information required by § 46b-12 (c).
Additionally, the court ordered the parties
The court also ruled on several of the parties' unresolved motions, including the plaintiff's May 15, 2014 motion to modify his pendente lite support obligations. The court granted this motion and ordered that the plaintiff's child support obligation would terminate as of July 1, 2017, when the defendant's support obligation began. The court did not, however, rule on the defendant's February 24, 2014 motion for contempt. Nor did the court make any findings or issue any orders regarding any claimed arrearages. This appeal followed.
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