Wilson v. Wilson

• Decision Date: 27 June 1995
• Docket Number: No. 13192,13192
• Court: Connecticut Court of Appeals
• Parties: Christine WILSON v. David WILSON.

Page 621

661 A.2d 621

38 Conn.App. 263

Christine WILSON v. David WILSON.

No. 13192.

Appellate Court of Connecticut.

Argued Feb. 15, 1995.

Decided June 27, 1995.

Robin C. Murphy, with whom was Mildred Doody, for the appellant (plaintiff).

David Wilson, pro se, the appellee (defendant).

Lynn Jenkins, for the minor child.

Before FOTI, HEIMAN and HENNESSY, JJ.

HEIMAN, Judge.

In this dissolution action, the plaintiff appeals from the postjudgment orders of the trial court interpreting the judgment of dissolution as providing the defendant with the right to unsupervised visitation with the parties' minor child and finding the plaintiff in contempt of violating the orders of visitation. On appeal, the plaintiff claims that the trial court improperly (1) interpreted the judgment of dissolution by (a) failing to consider the circumstances surrounding the entry of the order and (b) creating an impermissible prospective modification of visitation, which could not be based on the best interests of the child, and (2) found the plaintiff in contempt (a) when the plaintiff reasonably believed she was not obligated to allow visitation, (b) without considering the circumstances surrounding the violation of the court order and (c) based on remarks made by counsel. We affirm the judgment of the trial court.

An understanding of the following facts is necessary for the proper resolution of this appeal. The marriage between the parties was dissolved, after trial, on April 29, 1993. Custody of the one minor daughter of the marriage was committed to the plaintiff. The defendant was granted rights of visitation in the judgment as follows: "[T]he defendant father [is to] have supervised visitation with the minor child for a period of six months.... Visitation to occur on Saturdays or Sundays from ten to six and may be flexible to allow supervisors to participate."

On June 17, 1993, the defendant filed the first of a series of motions for contempt, alleging that the plaintiff had wilfully refused to allow him visitation with his child. A hearing was held on August 16, 1993, at which the defendant informed the court that the child was removed by the supervisor from the May 23, 1993 visitation when the defendant drank a beer in front of the child. The defendant further informed the court that the original order did not prohibit drinking during visitations and that he had not been allowed to see the child since that incident. The plaintiff then represented to the court that the child was afraid of the defendant and refused to call or see him. The trial court did not find the plaintiff in contempt at that time, but referred the case to family relations for a visitation study.

On November 26, 1993, the defendant filed a second motion for contempt, alleging again that the plaintiff had denied him visitation with the minor child since May 23, 1993, that the plaintiff had changed residences at least twice since the date of dissolution for the purpose of defeating the defendant's exercise of his right to visitation, and that the defendant and the minor child had been denied telephone contact since July 31, 1993.

By motion dated December 13, 1993, the plaintiff sought an order of the court modifying the original visitation order in light of the defendant's drinking during his visit with the child on May 23, 1993. The plaintiff conceded in her motion for modification that no visitation had been afforded to the defendant since May 23, 1993, and claimed that, as a result of the defendant's "past physical violence and destructive behavior while under the influence of alcohol, the minor child is afraid to be with her father when he is drinking." The plaintiff sought an order that supervised visitation take place at Southern Connecticut State University.

Hearings were scheduled on each of these motions on December 13, 1993. On that day, counsel for the plaintiff requested a continuance of one week because counsel for the minor child and the child's therapist were unavailable. The trial court continued the hearings to December 20, 1993. In granting the continuance, the trial court made clear that the original order regarding visitation was still in force until modified and admonished both parties that neither had a right to violate that order because they disagreed with it. The defendant then asked the trial court to clarify the provisions of the original order. Upon obtaining a copy of the transcript of the dissolution proceedings, the trial court read to the parties the original order as to visitation. The trial court interpreted this order to require that the defendant's visits with the minor child be supervised for the first six months and that the supervised aspect of those visitations lapsed after the passage of that period. After finding that six months had passed since the entry of the original order, the trial court ordered that the defendant have visitation with the minor child on December 19, 1993, from 10 a.m. to 6 p.m.

The parties returned to court on December 20, 1993. At that time, the defendant filed a third motion for contempt claiming that the plaintiff had denied him the right of unsupervised visitation that was to have occurred on December 19. The trial court found the plaintiff to be in contempt both as to the original order of visitation as well as to its order of unsupervised visitation that was to have taken place on December 19, 1993. The trial court imposed sanctions of $25 for each week that visitation was withheld under the original order plus $300 for defying its specific order of visitation for December 19, 1993.

The trial court further ordered that the defendant was to have unsupervised visitation each Sunday with the minor child during the hours originally ordered. Because the child had not been allowed to see her father for such a long time, the trial court further ordered that the defendant was to have supervised visitation with the minor child on Christmas Day to allow the child and father to be reacquainted. In addition, the trial court ordered that neither party was to drink alcohol in the presence of the minor child and that neither party was to remove the child from the state of Connecticut.

On January 10, 1994, the plaintiff appealed to this court. Pending the appeal, the plaintiff moved that the orders of the trial court be stayed, that the original judgment be opened and modified, and that the finding of contempt be reconsidered. In support of her motion to open and modify, the plaintiff claimed that the original order, as interpreted by the trial court, constituted an improper prospective modification of visitation. The trial court held a hearing on these motions that included testimony concerning the behavior of the child and the events of visitation subsequent to the order of the trial court for unsupervised visitation.

During the hearing, the trial court orally granted the plaintiff's motion for reconsideration of the finding of contempt insofar as the number of weeks to which sanctions were attached. Because a hearing on contempt was held on August 16, 1993, but no finding of contempt was made at that time, the trial court reduced its finding of contempt to encompass only those weeks after August 16, 1993. The trial court also denied the plaintiff's motion for modification, finding that there was no substantial change in circumstances.

A written memorandum of decision was issued on April 4, 1994, denying the plaintiff's motion for stay. ¹ In this memorandum, the trial court specifically found that there was no credible evidence that the child's anger and aggression were caused by visitation with the defendant. In addition, the trial court found that the child was loving and affectionate with the defendant during his visits and that unsupervised visitation was in the best interest of the child. The trial court found that the original order of visitation did not constitute an invalid prospective modification.

I

The plaintiff first asserts that the trial court improperly interpreted the original order of visitation to provide for supervised visitation for a period of six months and automatically to become an order of unsupervised visitation at the end of the six month period. The improprieties claimed are that the trial court failed to consider the circumstances surrounding the entry of the original order and that such an interpretation created an impermissible prospective modification in violation of the holdings of Emerick v. Emerick, 5 Conn.App. 649, 502 A.2d 933 (1985), cert. dismissed, 200 Conn. 804, 510 A.2d 192 (1986), and Guss v. Guss, 1 Conn.App. 356 472 A.2d 790 (1984). We are unpersuaded that either claim represents an issue in the present posture of this appeal. ²

It is statutorily ³ incumbent upon a court entering orders concerning custody or visitation or a modification of such order to be guided by the best interests of the child. See Gallo v. Gallo, 184 Conn. 36, 41-42, 440 A.2d 782 (1981); Busa v. Busa, 24 Conn.App. 426, 428, 589 A.2d 370 (1991). We review any order of the trial court concerning an order of visitation under the standard of whether in entering the order that it did, it abused its discretion in making that order. El Idrissi v. El Idrissi, 173 Conn. 295, 300-301, 377 A.2d 330 (1977).

While the trial court found that the original order envisioned a period of supervised visitation for the initial period of six months from the date of the decree of dissolution and that after that period the visitation with the defendant would be unsupervised, we need not concern ourselves with whether that constituted a correct interpretation of the original order. The trial court found affirmatively that it was in the best interests of the child that she enjoy unsupervised visitation with her father. Thus, given that finding by the trial court, it is inconsequential whether the trial court properly interpreted the original order, or whether the original order as...