Merkel v. Hill ( 2019 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
GORDON MERKEL v. MARLENE BALTIMORE HILL
(AC 41352)
Keller, Bright and Beach, Js.
Syllabus
The plaintiff filed a motion to modify orders of custody and visitation con-
cerning the parties’ minor child that had been issued in connection with
a foreign judgment of dissolution. Thereafter, the plaintiff filed a motion
to modify a parental access plan. The plaintiff claimed that the parties’
circumstances had changed since the entry of the existing orders and
requested that the trial court follow the recommendations contained in
a comprehensive evaluation report that had been prepared by a family
relations counselor one year earlier. At a short calendar hearing, the
trial court and the parties confirmed that the sole motion scheduled to
be heard and decided at the hearing was the motion to modify the
parental access plan. Following the hearing, the court issued a memoran-
dum of decision in which it modified the existing orders relating to
the parental access plan and custody, and adopted the entirety of the
recommendations in the report of the family relations counselor, who
had testified at the hearing that because the report was prepared one
year prior, the recommendations contained therein were outdated. On
appeal to this court, the defendant claimed, inter alia, that the trial court
violated her right to procedural due process when it modified the existing
custody order without any notice and after a hearing at which it repeat-
edly was confirmed that the only issue was the modification of the
parental access plan. Held that the trial court violated the defendant’s
procedural due process rights when it modified the custody order: that
court modified the custody order without providing the parties with
notice and a meaningful opportunity to be heard on that issue, as the
court and both parties expressly and consistently had confirmed that
the sole motion to be heard and decided at the hearing was the motion
to modify the parental access plan, and the plaintiff conceded at oral
argument before this court that modification of the custody order was
improper; moreover, the trial court abused its discretion when it adopted
the recommendations in the report of the family relations counselor
under the circumstances here, where the recommendations in the report
were stale and outdated, the family relations counselor was unable to
answer questions about her report because she had not been subpoenaed
and was unprepared, and she testified that such reports become outdated
six months after completion because of the evolution of child develop-
ment, and that she could not make present recommendations and would
do a disservice to the minor child to say that the recommendations in
her report were still valid.
Argued April 10—officially released April 26, 2019*
Procedural History
Motion by the plaintiff for, inter alia, modification of
orders of custody and visitation as to the parties’ minor
child issued in connection with a foreign judgment of
dissolution, and for other relief, brought to the Superior
Court in the judicial district of Windham at Putnam;
thereafter, the plaintiff filed a motion to modify the
parties’ parental access plan; subsequently, the court,
A. dos Santos, J., entered orders modifying the parental
access plan and custody, and the defendant appealed
to this court; thereafter, the court, A. dos Santos, J.,
granted in part the defendant’s motion to stay the pro-
ceedings, and the defendant filed an amended appeal.
Reversed; further proceedings.
Pamela S. Bacharach, for the appellant (defendant).
Gordon Merkel, self-represented, the appellee
(plaintiff).
Opinion
PER CURIAM. The defendant, Marlene Baltimore
Hill, appeals from the postjudgment order of the trial
court modifying the existing orders governing the
parental access plan and the custody rights of the self-
represented plaintiff, Gordon Merkel, with respect to
the parties’ minor child. On appeal, the defendant claims
that the court’s modification of the existing custody
order violated her right to procedural due process under
the United States constitution, and that the court
abused its discretion by adopting the recommendations
contained in a stale family relations report to modify
both the existing custody and parental access plan
orders. We agree and, accordingly, reverse the judgment
of the trial court.
The record reveals the following undisputed facts
and procedural history. The parties, who never were
married, have one child, who was born in December,
2008. In April, 2009, the defendant, who lived in Massa-
chusetts at the time, filed a complaint in the Massachu-
setts Probate and Family Court seeking child support
from the plaintiff, who lived in Connecticut. On October
1, 2013, after four years of litigation, the Massachusetts
Probate and Family Court rendered judgment in accor-
dance with the parties’ stipulated agreement regarding
the support, custody, and visitation of their child. Pursu-
ant to that judgment, the defendant was awarded sole
physical and legal custody of the child, the plaintiff
was entitled to visitation in accordance with a detailed
parental access plan, and the plaintiff was to make
biweekly child support payments to the defendant.
Sometime thereafter, the defendant moved to Con-
necticut.
On October 11, 2013, the plaintiff filed a certified
copy of the Massachusetts judgment in the Connecticut
Superior Court, and the trial court domesticated the
Massachusetts judgment. See General Statutes § 46b-
71.1 On May 8, 2014, the plaintiff filed with the trial
court a motion for modification of the existing orders
relating to custody and visitation. On December 16,
2015, the plaintiff filed another motion to modify the
custody and visitation orders. On February 3, 2016, the
trial court referred the matter to the family relations
division (family relations) of the Superior Court for a
comprehensive evaluation. On December 7, 2016, the
family relations counselor, Nancy E. Fraser, filed a com-
prehensive evaluation report (report). In her report,
which was filed again on December 30, 2016, she recom-
mended that the parties share joint legal custody of
the child, that the defendant maintain primary physical
custody, and a revised parental access plan that would
increase the plaintiff’s visitation with the child.
On September 7, 2017, the plaintiff filed a motion to
modify only the parental access plan. In his motion, the
plaintiff maintained that the circumstances had
changed since the entry of the existing orders in 2013,
and he requested that the court follow the recommenda-
tions of the report on a temporary basis until a full
trial could be held. Although there were several other
pending motions to modify both the custody and paren-
tal access plan orders, and motions for contempt, only
the plaintiff’s September 7, 2017 motion was scheduled
to be heard at the short calendar on October 11, 2017.
On October 4, 2017, the plaintiff filed an application for
the issuance of a subpoena to compel Fraser’s appear-
ance at the short calendar hearing, which was denied
by the court on the same date.
At the outset of the October 11, 2017 short calendar
hearing, the court identified that there were approxi-
mately three to eight motions and objections pending,
but the sole motion scheduled to be heard that day was
the plaintiff’s September 7, 2017 motion to modify the
parental access plan. The defendant’s attorney agreed
that the motion to modify the parental access plan was
the only motion scheduled to be heard, and she orally
requested a special assignment so that all of the pending
motions could be heard on the same day, which the
court denied. The court and both parties repeatedly
confirmed throughout the hearing that the only motion
that was to be heard that day was the plaintiff’s motion
to modify the parental access plan.
The plaintiff sought to introduce the report at the
hearing. The defendant objected on the grounds that
the report was stale and that Fraser had not been sub-
poenaed to be a witness. As to the staleness of the
report, the plaintiff testified that ‘‘[e]verything has
changed,’’ including the child’s ‘‘behavior, moving, [the
defendant’s] new job,’’ the defendant’s boyfriend, and
the location of the police station used as a meeting
point. As to the availability of Fraser, the court stated
that she was available to testify because she was present
in the courthouse at that time, working on other cases.
The court overruled the objection and admitted the
report as a full exhibit. After a short recess to permit
the defendant’s attorney to review the report for the
first time, as she represented that it had been provided
to prior counsel, the court then asked the plaintiff
whether he agreed or disagreed with each of the twenty
recommendations contained therein. The plaintiff testi-
fied that he agreed to a substantial majority of the
recommendations. The defendant’s attorney then cross-
examined the plaintiff as to, among other things, his
relationship with the child, the child’s performance in
school, and his interactions with the defendant.
Thereafter, the court made Fraser available to testify
so that the defendant would have the ability to cross-
examine her.2 Fraser testified as to the general process
with respect to the compilation of a report, but she
testified that she could not opine as to the particulars
of the report at issue because she was not expecting
to testify that day regarding the present case, her report
had been completed almost one year ago, she had not
reviewed the file, report, or notes, and she did not have
the file or notes with her in court to refresh her recol-
lection.
In response to a series of questions as to whether
the recommendations made in her report were still her
present recommendations, Fraser provided the follow-
ing relevant testimony: ‘‘I have no basis for—it’s a year
old. I—I haven’t spoken with anybody. I haven’t—I don’t
know where the minor child, you know—how the minor
child is doing. I don’t know if the two parties have
come to a different agreement. I have nothing to base
a recommendation today on. . . . These are recom-
mendations that I made in December of 2016 based on
all of the evidence and all of the people that I spoke
to at that time. . . . I can’t make any recommendations
for today.’’ She also testified that she ‘‘was always under
the assumption that our reports were outdated after
six months because of child custody and access, and
the child development changing. I mean, child custody
and access is a—a living, breathing thing. We all know
that. That’s part of family law that makes it so difficult.
. . . Children grow. Children’s needs . . . change.
What was in the best interest of a child a year ago
may not be in the best interest of a child today. And,
unfortunately, I find myself in a very tough predicament
because while I wholeheartedly—I will stand by my
recommendation and that it was based on good evalua-
tive work, I—I have no basis to say that it’s still valid
for—for both mom and dad today. I—I would be doing
a disservice to the minor child to say that. I can’t say
that.’’ Thereafter, the defendant testified regarding her
relationship with the plaintiff and the child.
On January 26, 2018, the court issued a memorandum
of decision in which it modified the existing orders
relating to the parental access plan and custody, and
adopted the entirety of Fraser’s recommendations from
her stale report, with a few immaterial changes. The
court held that Fraser’s testimony ‘‘validated the report
and her recommendations’’ and that, although her
‘‘report should be taken up soon after it [was] com-
pleted,’’ the numerous court appearances and motions
delayed that occurrence. The court also found that the
report was ‘‘complete, thoughtful, and credible. No
credible evidence was presented that the issues that
the child ha[d] at school have been altered or have
abated. Finally, the court accepts the family counselor’s
recommendations contained at the end of her report.’’
This appeal followed. Additional facts will be set forth
as necessary.
On appeal, the defendant claims that the court
improperly modified the existing orders relating to cus-
tody and the parental access plan. In support of her
claim, the defendant first argues that the court violated
her right to procedural due process under the United
States constitution because it modified the existing cus-
tody order without any notice and after a hearing at
which it repeatedly was confirmed that the only issue
was the modification of the parental access plan. Sec-
ond, she argues that the court abused its discretion by
adopting the recommendations contained in the report
because Fraser specifically testified that the report was
outdated and that her recommendations contained
therein were not current.3 We agree.
We begin with the standard of review and general
principles relevant to the defendant’s first argument.
Whether the court violated the defendant’s constitu-
tional procedural due process rights is a question of
law over which our review is plenary. State v. Harris,
277 Conn. 378, 394, 890 A.2d 559 (2006). ‘‘[F]or more
than a century the central meaning of procedural due
process has been clear: Parties whose rights are to be
affected are entitled to be heard; and in order that they
may enjoy that right they must first be notified. . . .
It is equally fundamental that the right to notice and an
opportunity to be heard must be granted at a meaningful
time and in a meaningful manner. . . . [T]hese princi-
ples require that a [party] have . . . an effective oppor-
tunity to defend by confronting any adverse witnesses
and by presenting his own arguments and evidence
orally.’’ (Citation omitted; internal quotation marks
omitted.) In re DeLeon J., 290 Conn. 371, 378, 963 A.2d
53 (2009). ‘‘A parent’s right to make decisions regarding
the care, custody, and control of his or her child is a
fundamental liberty interest protected by the [f]our-
teenth [a]mendment. . . . Before a parent can be
deprived of her right to the custody, care, and control
of her child, he or she is entitled to due process of law.’’
(Internal quotation marks omitted.) Barros v. Barros,
309 Conn. 499, 508, 72 A.3d 367 (2013).
In the present case, the court modified the existing
custody order without providing notice to the parties
and without providing them a meaningful opportunity
to be heard on that issue. At the October 11, 2017 hear-
ing, the court and both parties expressly and consis-
tently confirmed that the sole motion scheduled to be
heard and decided was the plaintiff’s motion to modify
the parental access plan. Indeed, at oral argument
before this court, the plaintiff conceded that the court’s
modification of the custody order was improper. After
thoroughly examining the record in the present case,
we conclude that the court’s modification of the custody
order violated the defendant’s procedural due process
rights because its decision affected her fundamental
right to custody of their child without providing notice
to the parties and a meaningful opportunity to be heard.
We turn next to the standard of review and general
principles relevant to the defendant’s second argument.
‘‘We utilize an abuse of discretion standard in reviewing
orders regarding custody and visitation rights . . . . In
exercising its discretion, the court . . . may hear the
recommendations of professionals in the family rela-
tions field, but the court must ultimately be controlled
by the welfare of the particular child. . . . This
involves weighing all the facts and circumstances of
the family situation. Each case is unique. . . . A mere
difference of opinion or judgment cannot justify our
intervention. Nothing short of a conviction that the
action of the trial court is one which discloses a clear
abuse of discretion can warrant our interference.’’
(Internal quotation marks omitted.) Lopes v. Ferrari,
188 Conn. App. 387, 393, A.3d (2019).
In making its discretionary determination as to
whether to modify an existing order relating to custody
or a parental access plan, ‘‘the trial court is bound to
consider the [children’s] present best interests and not
what would have been in [their] best interests at some
previous time.’’ (Emphasis in original; internal quota-
tion marks omitted.) Collins v. Collins, 117 Conn. App.
380, 391–92, 979 A.2d 543 (2009); see O’Neill v. O’Neill,
13 Conn. App. 300, 303–304, 536 A.2d 978 (court abused
discretion by fashioning order based on past conduct
and outdated evidence rather than present ability to
parent), cert. denied, 207 Conn. 806, 540 A.2d 374 (1988);
compare Balaska v. Balaska, 130 Conn. App. 510, 518,
25 A.3d 680 (2011) (recognizing that ‘‘court’s reliance
on outdated information and past parental conduct in
making or modifying orders concerning parental access
may be improper,’’ but concluding that court did not
abuse its discretion where adequate current informa-
tion in record to support orders).
In the present case, the court clearly abused its dis-
cretion by adopting the custody and parental access
plan recommendations contained in the report, which
Fraser testified were stale and outdated. Fraser first
filed her report on December 7, 2016, the short calendar
hearing was held ten months later on October 11, 2017,
and the court’s decision was not issued until January
26, 2018. At the hearing, Fraser was unable to answer
specific questions about her report because she had
not been subpoenaed and had no idea that she was
going to testify that day, and, thus, she was unprepared
to testify that day. Furthermore, she explicitly stated
that she could not make any present recommendations
because she would have nothing on which to base such
recommendations, and that she ‘‘would be doing a dis-
service to the minor child to say that’’ her recommenda-
tions were still valid at the time of the hearing.
(Emphasis added.) She also testified that she believed
that reports, such as the one in the present case, become
outdated six months after completion because of the
constant evolution of child development. Notwithstand-
ing the staleness of the report and the testimony of
Fraser that it did not represent her present recommen-
dations, the court surprisingly found that Fraser’s testi-
mony ‘‘validated the report and her recommendations,’’
and it adopted her stale recommendations as its own.
The court’s adoption of the recommendations taken
from the outdated report constituted a clear abuse of
discretion.
Finally, we recognize that the plaintiff has been seek-
ing to modify the existing custody and parental access
plan orders for approximately five years, and that the
result of our decision will in all likelihood require family
relations to conduct an updated or new comprehensive
evaluation before a decision can be made on his motion
to modify custody.4 In light of the foregoing, we implore
that this report be given priority and be completed
as expeditiously as possible, and that a hearing on all
motions to modify custody be scheduled immediately
thereafter. In the meantime, we order that the court
schedule as soon as possible a new hearing on the
plaintiff’s motion to modify the parental access plan.
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
* April 26, 2019, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
General Statutes § 46b-71 provides in relevant part: ‘‘(a) Any party to an
action in which a foreign matrimonial judgment has been rendered, shall
file, with a certified copy of the foreign matrimonial judgment, in the court
in this state in which enforcement of such judgment is sought, a certification
that such judgment is final . . . .
‘‘(b) Such foreign matrimonial judgment shall become a judgment of the
court of this state where it is filed and shall be enforced and otherwise
treated in the same manner as a judgment of a court in this state; provided
such foreign matrimonial judgment does not contravene the public policy
of the state of Connecticut. . . .’’
2
Pursuant to Practice Book § 25-60 (c), the report was admissible, pro-
vided its author, Fraser, was available for cross-examination.
3
The defendant also argues that the court lacked subject matter jurisdic-
tion to modify the existing custody order because there was no motion to
modify the custody order scheduled to be heard on October 11, 2017. This
claim is without merit. Whether a motion is properly before a court at a
particular proceeding at most raises the question of whether the court has
authority to consider the motion and does not implicate the court’s subject
matter jurisdiction to decide the motion. See generally Reinke v. Sing, 328
Conn. 376, 389–92, 179 A.3d 769 (2018) (delineating principles of subject
matter jurisdiction). Further, the defendant claims that the court abused its
discretion in denying in part her motion to stay, which was filed with the
trial court after she took this appeal; however, she expressly abandoned
this claim at oral argument before this court.
4
The defendant’s counsel represented at oral argument before us that the
defendant also is seeking to modify custody.