Zilkha v. Zilkha

• Decision Date: 13 March 2018
• Docket Number: AC 39714
• Citation: 183 A.3d 64,180 Conn.App. 143
• Parties: Karen ZILKHA v. David ZILKHA
• Court: Connecticut Court of Appeals

180 Conn.App. 143

183 A.3d 64

Karen ZILKHA

v.David ZILKHA

AC 39714

Appellate Court of Connecticut.

Argued November 30, 2017

Officially released March 13, 2018

Edward N. Lerner, with whom, on the brief, was George Kent Guarino, for the appellant (defendant).

D. Suzanne Snearly, guardian ad litem for the minor children.

Alvord, Prescott and Eveleigh, Js.

PRESCOTT, J.

In this highly protracted and bitterly contested family matter, the defendant, David Zilkha, whose marriage to the plaintiff, Karen Kaiser,¹ was dissolved in 2005, appeals following the denial of postdissolution motions that sought to modify existing orders governing custody and visitation rights of the defendant with respect to the parties' children, who are now teenagers. The defendant claims on appeal that the court improperly (1) delegated its judicial function and failed to consider both the best interests of the children and public policy by granting the children considerable control over the defendant's level of access to them; (2) relied on events that occurred between 2004 and 2007, despite having informed the parties that such evidence was too remote and insufficiently weighty for consideration; (3) adopted the recommendation of the children's guardian ad litem, despite the guardian ad litem's alleged abandonment of that role; and (4) relied on an erroneous factual finding that reconciliation therapy had concluded, purportedly in direct contradiction to testimony provided by the parties' reconciliation therapist. Additionally, the defendant requests by way of relief that, if this court agrees with all or parts of his claims, we should exercise our inherent equitable authority and order, without a remand, that the children participate in one of the reunification programs identified in his proposed orders to the trial court. For the reasons that follow, we reject the defendant's claims and affirm the judgment of the trial court.

The following procedural history and facts, as set forth by the trial court, Hon. Barbara M. Quinn , judge trial referee, in its detailed, thoughtful and well reasoned memorandum of decision are relevant to our discussion of the defendant's claims. The parties married in 1998, and their twin children, Chloe and Jake, were born a few years later in February, 2001. The parties "never were able to form the mutually supportive and understanding relationship that a successful marriage would require.... By 2004, their relationship became untenable ....

"[Despite the plaintiff having commenced divorce proceedings in late 2003, the parties] remained in the [marital] home in Connecticut together, and the escalating tensions were difficult for both of them to endure. [The defendant] worked in New York for a hedge fund, which ultimately collapsed. The time constraints of his position did not permit him to be home with his young children during the evenings before they were put to bed. [The plaintiff] assumed the traditional mothering role to the considerable exclusion of [the defendant], whom she viewed as unfit to parent.... [The defendant] found the proposed loss of the daily society of his children extremely painful, and so resisted moving out of the home."

On three separate occasions during the summer and fall of 2004, the police were called concerning conflicts between the defendant and the plaintiff. The second and most significant of the three incidents "came during a verbal argument between these [parties] on June 30, 2004, which the children witnessed. [The defendant] lost control and struck [the plaintiff] that evening. He struck her in the face several times, and the police observed [the plaintiff] to have a black eye, ultimately medically determined to be a fractured eye orbit and bridge of her nose. [The defendant] denied hitting [the plaintiff], and blamed it on the children....

"[The defendant] was ultimately criminally charged ... and vacated the family residence. His children were then three and one-half years old. He has not resided with them or had them in his care without supervision during the day or overnight since that time ...."² (Footnotes omitted.)

"[The defendant's] employment situation was also fraught with difficulties, and the hedge fund where he was employed collapsed during this time. A Securities and Exchange Commission (SEC) investigation into the collapse of the fund and the conduct of its principals, including [the defendant], resulted in negative publicity. Among other factors, this negative publicity resulted in [the defendant's] continued unemployment in the ensuing years and to the present time. All these matters added ... stress and tension [to] the end of his marital relationship [and contributed to] his inability to enjoy free and uninhibited access to his two children."

The plaintiff and the defendant were psychologically evaluated by Harry Adamakos, a psychologist, from October, 2004, through March, 2005. The evaluation was ordered, at least in part, because the plaintiff, at that time, was seeking sole custody of the children. Adamakos prepared a report summarizing his findings as to each party.³ At the time of the evaluation, the parties agreed that, prior to the escalation of conflict in 2004, the children enjoyed a very positive relationship with the defendant. Adamakos noted that, although the defendant lacked experience, he probably could learn to care for the children responsibly, at first for short periods of time but eventually for a day or two at a time. Adamakos also believed that the defendant's ability to parent the children "would likely improve as they become older and move out of the tender years, supporting a plan that would further increase father-child time as they get older." Despite this evaluation, "a normal divorced parent relationship with their father was not permitted to evolve. The psychological features of each parent noted in [Adamakos'] evaluation combined into the 'perfect storm' of mutually negatively reinforcing interactions and destructive synergy to prevent a normal visiting relationship from developing in the many years that have passed since that time.

"[The plaintiff's] anxiety and need for control over all aspects of visitation have called into play the worst of [the defendant's] needs for denial and excessive repressive defense mechanisms, all to the detriment of their two children. The plaintiff does not accept or believe that it is best and healthy for her children to have access to [the defendant]. Her rejection of this central and important tenet of child-rearing and her beliefs about [the defendant] have led her to completely frustrate the normalization of [the defendant's] access to his children. [The defendant's] own angry conduct and at times inappropriate, childishly self-focused dealings with his children have played into her fears and anxieties, and only strengthened her beliefs in this regard."

The court also found that the following contributed to the parties' inability to implement a normal visiting relationship between the defendant and his children. First, the parties never developed any effective means to communicate about their children, a defect that continues to the present day. Second, the plaintiff never could overcome her distrust of the defendant or her lack of respect for his input regarding parenting decisions, ignoring the consequences this had on the children. Finally, the defendant lacked the attentive and focused parenting skills needed to achieve a successful visiting relationship with the children, failing to understand or accept that such a relationship, even under the best of circumstances, would likely fail to achieve the type of closeness experienced in intact families.

The parties eventually entered into a separation agreement that was approved by the court and incorporated into the judgment of dissolution rendered on May 31, 2005. "That agreement provided, inter alia, that they would share joint physical custody of their children, who would reside with their mother. Despite this purported joint custody label, access by the father to the children was by therapeutic parenting time only ... [consisting of] five hours each Saturday, three hours each Wednesday, with detailed provision for makeup visits, cancellation and so on.

"The agreement also provided for a complicated and ultimately prohibitively expensive method of supervision and gatekeeping by the children's therapist and a clinical psychologist. There were no detailed provisions for how [the defendant] might establish his ability in the future to have unsupervised visitation with his children. The agreement is silent as to the reasons for such supervision, although it can be inferred by the events which took place in 2004 ...." (Footnote omitted; internal quotation marks omitted.) Although the dissolution judgment was modified several times, those provisions governing the legal and physical custody of the children, including that the defendant have only supervised visitation with the children, remained unchanged.

Between 2005 and 2007, some of the defendant's supervised visits with the children were successful and even enjoyable. The defendant, however, was unhappy about the cost of supervised visits and what he viewed as excessive scrutiny as a result of the presence of supervisors. "The reports from this time describe [the defendant] as often unable to respect the children's physical boundaries. He would tickle his son far too long, after being requested to stop. He would tease him in ways that were uncomfortable for the child. His anger at [their periodic] negative reactions to him also frustrated progress in visitation." Although the defendant made attempts to end supervision, those efforts failed. Nevertheless, toward the beginning of 2007, the defendant's counsel at that time recommended the appointment of "a new set of supervisors without the negative connections that the then existing supervisors and gatekeeper had with the family. That recommendation, whether...