Weinstein v. Weinstein

• Decision Date: 13 June 1989
• Docket Number: No. 6467,6467
• Citation: 18 Conn.App. 622,561 A.2d 443
• Court: Connecticut Court of Appeals
• Parties: Laura M. WEINSTEIN v. Morton WEINSTEIN.

Page 443

561 A.2d 443

18 Conn.App. 622

Laura M. WEINSTEIN v. Morton WEINSTEIN.

No. 6467.

Appellate Court of Connecticut.

Argued Feb. 14, 1989.

Decided June 13, 1989.

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

William J. Eddy, with whom, on the brief, was William J. Tracy, Jr., Bristol, for appellee (defendant).

Before SPALLONE, EDWARD Y. O'CONNELL and NORCOTT, JJ.

SPALLONE, Judge.

The plaintiff appeals from the judgment rendered in an action for the dissolution of her marriage, claiming that the trial court erred (1) in awarding the parties joint custody of the minor children, with primary residence with the defendant, (2) in delegating its judicial role to counsel for the minor children by directing counsel to perform certain functions postjudgment, and by ordering the parties to undergo postdissolution counseling with the children, (3) in failing to award the plaintiff counsel fees, (4) in distributing the property between the parties as it did, (5) in failing to award alimony to the plaintiff, (6) in failing to allow witnesses produced by the plaintiff to testify as experts regarding the valuation of the defendant's business interests, and (7) in denying the plaintiff a fair trial. We find error, in part.

The plaintiff, Laura Weinstein, and the defendant, Morton Weinstein, were married on January 5, 1974. They are the parents of two minor children, a son, born June 8, 1978, and a daughter, born December 25, 1979. Marital difficulties developed between the parties, resulting in their separation in February, 1986, and the filing of this action in April, 1986.

After a fully contested trial, the court expressly found that "in this matter ... the plaintiff was primarily responsible for the breakdown of the marriage. She is the one who wanted to end the marriage, she asked the defendant to leave the marital home, and he left.... The court [finds that the] primary cause of the breakdown of the relationship was with the plaintiff." Further, the court expressly found that "[b]oth parties are employable with substantial earning capacities. The plaintiff has substantially greater assets than the defendant ... at the present time, and a much greater capacity to acquire assets in the future from the various family trusts and partnerships." Our review of the transcripts reveals that the trial court's findings and conclusions are fully supported by the evidence.

The plaintiff's first claim is that the trial court erred in awarding joint custody of the minor children, with primary residence with the defendant. Determining the custody and residence of the minor children of parties to dissolution actions is a serious task that calls into play the broad discretion of the trial court. The trial court has the opportunity to view the parties first hand and is therefore in the best position to assess the circumstances surrounding a dissolution action, in which such personal factors as the demeanor and attitude of the parties are so significant. Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985); Tutalo v. Tutalo, 187 Conn. 249, 251, 445 A.2d 598 (1982). In determining whether the trial court could reasonably conclude as it did on the basis of the evidence before it, every reasonable presumption should be given in favor of the correctness of its action. Gallo v. Gallo, 184 Conn. 36, 44-45, 440 A.2d 782 (1981); Pasquariello v. Pasquariello, 168 Conn. 579, 584, 362 A.2d 835 (1975). The trial court's decision may be disturbed on appeal only when there has been an abuse of discretion. Seymour v. Seymour, 180 Conn. 705, 709, 433 A.2d 1005 (1980). We are limited in our review to determining whether the trial court abused its broad discretion to award custody based upon the best interests of the child as reasonably supported by the evidence. See Practice Book § 4061; Dubicki v. Dubicki, 186 Conn. 709, 717, 443 A.2d 1268 (1982); Hall v. Hall, 186 Conn. 118, 123-24, 439 A.2d 447 (1982); Seymour v. Seymour, supra.

The trial court expressly found that "both parents appear to be loving and caring parents." The court noted, however, that "the plaintiff was much less attentive to her children before the separation than after the separation" and that she had "exhibited questionable judgment regarding the children several times since the separation." The court cited the following four examples of incidents reflecting the plaintiff's questionable judgment: (1) staying in the same motel room with her two children in one bed while she and her boyfriend shared the other bed, while the dissolution action was pending; (2) regularly arranging to leave the children with relatives and friends rather than with the defendant when she had appointments or when she was going away with her boyfriend; (3) taking the children out of school when she took vacations to Florida, even though school officials objected and one child was not doing well in school during that time; and (4) ignoring court visitation orders whenever the orders conflicted with her personal plans. The court found that the defendant was "the primary parent before the separation"; the defendant was the one who "woke the children, fed them, got them off to school, took them to many activities, took an active role in their schooling...." The court said, "[the defendant] has exhibited better parenting skills than the plaintiff. He certainly has exhibited better judgment. He is not perfect, but what parent is? The court believes he will use better judgment as the primary parent of the children. He will provide for their health needs, spiritual needs, educational needs, financial needs, while having a loving relationship with them.... I truly believe that the defendant will be more attentive to the children's needs." In view of these findings, we cannot say that the trial court abused its broad discretion in concluding that it was in the best interests of the parties' children for them to reside primarily with the defendant.

The plaintiff's second claim of error is that the trial court exceeded its jurisdictional authority in improperly delegating judicial functions to counsel appointed for the minor children pursuant to General Statutes § 46b-54 ¹ and in ordering the parties and their children to undergo postjudgment counseling. ²

In its order, the court noted that Christine Whitehead, counsel for the minor children, had, in effect, served as "Guardian Ad Litem for the minor children" and also as "a mediator, a negotiator and an all around stabilizing force for the parties." The court ordered that Whitehead "shall continue to serve as attorney for the minor children after judgment" and appointed her "trustee for the minor children" for certain purposes. ³ In ordering that the plaintiff and the defendant would share equally the costs of all secular and religious school education, tutoring, summer camp tuition, and dance, music and sports lessons for the children, the court made the following order: "[I]f the parties cannot agree on any such expenses being incurred, Attorney Whitehead shall be consulted and any such expenses approved by Attorney Whitehead shall be paid fifty-fifty by the parties." (Emphasis added.) As part of its joint custody order, the court also ordered that the plaintiff would be entitled to see the children one evening per week for dinner and that Whitehead would "determine which evening per week will work out best for the parents."

We find that, in making the latter two orders, the trial court in effect delegated its judicial function to counsel for the minor children, thus exceeding its power. General Statutes § 46b-56 authorizes the court to "make or modify any proper order regarding the education and support of the children and of care, custody and visitation...." General Statutes § 46b-54 permits the court, in actions for dissolution of marriage, on its own motion or upon request of either of the parties, the child, or the child's guardian, to appoint counsel for any minor child or children of either or both parties. Section 46b-54(c) provides: "[C]ounsel for the child or children shall be heard on all matters pertaining to the interests of any child...." (Emphasis added.) According to § 46b-54(c), the role of counsel is to advocate, not adjudicate. No authority is given to court appointed counsel to issue orders affecting the parties or their children or to resolve, in quasi-judicial fashion, disputes between the parties concerning the children. Such decision making is properly a part of the judicial function and can be done only by one clothed with judicial authority. See Valante v. Valante, 180 Conn. 528, 532-33, 429 A.2d 964 (1980); Cotton v. Cotton, 11 Conn.App. 189, 194-95, 526 A.2d 547 (1987). The trial court's orders empowering Whitehead to resolve disputes between the parties regarding expenses incurred for the education and activities of the children, and empowering her to select the evening of the week the plaintiff would see the children for dinner, amounted to an improper delegation of its judicial function. Accordingly, it is necessary to set aside those orders and to remand the case to the trial court with instruction to hold a hearing and to make such orders as are required in accordance with the law. On remand, the trial court should also reconsider the other orders involving Whitehead, i.e., the order appointing her to act as counsel for the minor children postjudgment and the two orders appointing her trustee for the benefit of the minor children. A court considers multiple factors in fashioning an equitable award, and each of the underlying factors may be dependent on the other. See Ehrenkranz v. Ehrenkranz, 2 Conn.App. 416, 424, 479 A.2d 826 (1984). We have no way of knowing from the record whether the other orders would have been made, or whether they would have been different, had the trial court understood the proper scope of the role of cour...