Lineberry v. Estevam ( 2014 )

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JOSEPH LINEBERRY v. JESSICA ESTEVAM
(AC 35038)
Bear, Keller and Dupont, Js.*
Argued January 13—officially released July 1, 2014
(Appeal from Superior Court, judicial district of
Middlesex, Calmar, J. [judgment]; Aurigemma, J.
[motions for modification and to reargue].)
Monica Lafferty Harper, for the appellant
(defendant).
Kelly S. Therrien, with whom were Jason J. Lewellyn
and, on the brief, Richard S. Sheeley, for the appel-
lee (plaintiff).
Opinion
KELLER, J. The defendant, Jessica Estevam, appeals
from the postjudgment order of the trial court modifying
the custody order with respect to the parties’ minor
child and from the court’s denial of her motion to rear-
gue the postjudgment order. The order from which the
defendant appeals changed the child’s primary resi-
dence from the defendant’s home in East Hampton to
the home of the plaintiff, Joseph Lineberry, in Durham,
modified the defendant’s right of access to the child,
and terminated the plaintiff’s child support obligation.
The defendant claims that the court: (1) improperly
conducted a custody hearing to a final conclusion prior
to the family relations report being filed in violation of
General Statutes § 46b-7; (2) violated the defendant’s
rights to due process of law pursuant to the equal pro-
tection clause of the state and federal constitutions by
proceeding with a custody hearing in contravention
of § 46b-7, by failing to follow proper short calendar
procedures, by failing to provide proper notice to the
defendant of the hearing, and by denying the defen-
dant’s request for a one week continuance in order to
obtain counsel; and (3) abused its discretion when it
denied the defendant’s motion to reargue. We agree
that the court abused its discretion in denying the defen-
dant’s motion to reargue, which advised the court that
the family relations report had not been filed and that
it had proceeded to a final determination on a modifica-
tion of custody orders in violation of § 46b-7.1 Accord-
ingly, we reverse the judgment of the trial court.
The following facts, which either were found by the
court or are undisputed in the record, and procedural
history are relevant to our resolution of the defendant’s
claims. The plaintiff and the defendant, who were never
married, are the parents of one minor child, a daughter
born in 2005. A judgment was entered by agreement of
the parties on March 16, 2009, in which both parties
were awarded joint legal custody, with the defendant
maintaining the primary residence of the child. The
plaintiff was awarded liberal access to the child. The
parties also were ordered to ‘‘advise and consult one
another concerning the major developmental issues of
their [child’s] life.’’ The plaintiff also was ordered to
pay weekly child support to the defendant.2
On April 10, 2012, the defendant, then self-repre-
sented, filed an application for an ex parte temporary
injunction and a motion for modification of the custody
order, seeking sole custody and more restrictive access
to the child by the plaintiff. Her ex parte application
was denied; the motion for modification was scheduled
for a hearing. On April 16, 2012, an initial hearing on
the defendant’s motion for modification was held. The
plaintiff appeared represented by counsel. The defen-
dant was self-represented. The court, Munro, J., did
not issue any orders modifying the judgment at that
time, but did reappoint Attorney Sue A. Fillmore Cousi-
neau as guardian ad litem for the child. After the parties
met with a family relations officer to discuss each par-
ty’s position, the court ordered the matter referred to
the family relations division for a full custody evalua-
tion. The court also scheduled a ‘‘report back’’ hearing
date of August 13, 2012.3 Subsequently, on April 23,
2012, the plaintiff also filed a motion for modification
of custody and child support, seeking to have the child’s
primary residence designated with him and to have his
child support obligation terminated. His motion was
docketed for May 21, 2012, marked off and not
reclaimed.
During the April 16, 2012 hearing, the court, Munro,
J., concerned that the defendant was self-represented,
indicated to her that the evaluation would require her
to attend appointments, to provide family relations with
information and to open her home for a visit. Addressing
the defendant, the court cautioned: ‘‘[B]ecause you
don’t have a lawyer, I want to be very clear about some-
thing. . . . If there is no agreement at the end of [the
evaluation] and it needs a hearing, a trial, we’ll go for-
ward with the trial. So if you’re thinking about getting
a lawyer, you’ve got to get one sooner than later.’’ The
defendant continued to represent herself until shortly
after the August 13, 2012 report back hearing.
The family relations officer assigned to the case, Les-
lie Kahl, completed a full evaluation. The family rela-
tions officer presented her recommendations to the
parties, the plaintiff’s counsel, and the guardian ad litem
on August 3, 2012, ten days prior to the scheduled
August 13, 2012 ‘‘report back’’ date. Her report, how-
ever, was not filed and copies of it were not provided
to the parties at that time, or before the August 13, 2012
report back hearing.4 The report was not filed until
September 27, 2012.
On August 13, 2012, the case appeared on the short
calendar before the court, Abrams, J. The only two
items appearing on the calendar for this case were
the defendant’s ex parte application for custody, which
previously had been denied, and the notation, ‘‘Refer-
ence to Fam Rel Div,’’ a means of coding the report back
date previously established by Judge Munro. Neither the
defendant’s nor the plaintiff’s motion for modification
was printed on the calendar. At the calendar call, the
plaintiff’s counsel, Attorney Lisa Faccadio, the guardian
ad litem, and the defendant were present. When the
case was called, the guardian ad litem indicated to the
court, ‘‘Your Honor, that is a pro se party and [the
plaintiff’s counsel] who is not in the room. But it has
to do with a child who needs a decision about school.
I wondered if it was possible—we have another one,
[the plaintiff’s counsel] and I, referred to Judge [Julia
L.] Aurigemma at 10:30. Could this one go right after
that to her?’’ Judge Abrams approved the referral to
Judge Aurigemma, subject to her agreeing to hear the
matter. The plaintiff’s counsel then advised the court,
‘‘Both are going to be relatively short, Your Honor.’’
No inquiry was made of the defendant regarding the
proposed referral or whether she agreed to it. She
remained silent during the entire exchange with
Judge Abrams.
When the parties and the guardian ad litem appeared
before Judge Aurigemma, the plaintiff’s counsel told
the court that motions had been pending for ‘‘many,
many months,’’ that the parties ‘‘have a family relations
call back,’’ and that they ‘‘were all present last week.’’
The plaintiff’s counsel, who did not advise the court
that the earlier proceeding was not a court date, but a
family relations conference, also stated that ‘‘this is an
emergency issue with respect to the child’s school and
Ms. Cousineau, as [guardian ad litem], I would just like
to call her to the witness stand, if the court is prepared.’’5
The court did not make any inquiry of the defendant.
The plaintiff’s counsel proceeded to call the guardian
ad litem, the plaintiff’s only witness. The plaintiff did
not introduce any exhibits. The guardian ad litem stated:
‘‘[The family relations officer] did a full family relations
evaluation, and we had a call back meeting where she
told us her recommendations and handed it out to us.’’
She testified that the primary issue before the court was
the educational concern, because although the child
previously was enrolled in the Portland school district,
neither parent resided in that district. She indicated
that the Portland school district was aware of that fact,
so ‘‘a decision needs to be made about where [the child
is] going to stay,’’ and that this issue was a major
concern.
The guardian ad litem then testified that she agreed
with the recommendations of the family relations offi-
cer that the child attend school in Durham, the school
district where the plaintiff resided.6 She opined that she
was ‘‘concerned about [the defendant’s] ability at this
point to adequately parent [the child] and get her to
school and get her what she needs.’’ She then referred
to numerous occasions on which the defendant deliv-
ered the child to school tardy. She expressed concerns
as to the condition of the defendant’s pets, the age of
the defendant’s boyfriend, and the defendant’s mental
health status. She related her prior observation, at an
earlier court date, of ‘‘borderline abusive’’ behavior
between the defendant and her brother, who lived with
the defendant.7 At the conclusion of her direct testi-
mony, the guardian ad litem recommended that the
custody order be modified to joint legal custody with
primary residence with the plaintiff and that the sched-
ule of parental access be modified in accordance with
the recommendations of the family relations officer.
Upon the conclusion of the direct testimony of the
guardian ad litem, the court invited the defendant to
cross-examine the witness. The defendant asked only
three questions addressed to the level of contact
between her and the guardian ad litem. Then, in an effort
to advise the court of the reasons for her opposition to
a change in the child’s primary residence, the defendant
delivered a lengthy, unsworn narrative, describing her
concerns about the plaintiff and the family relations
officer’s recommendations, which the guardian ad litem
had just endorsed. The defendant concluded: ‘‘So I am
asking you for a week continuance because I’ve spoken
with a lawyer, and he is prepared to represent my case.
He needed to get back to me regarding the extent—the
magnitude of this case is very big, as you can see, and
[Attorney] Monica Harper was not available to give him
a decision. She is now available to give him a decision.
There will be two attorneys working on my case. I just
got the okay from him that he will be representing me.
I have a letter from him, and I’m meeting him today at
2 o’clock. So I’m asking for a week continuance from
you before my daughter is ripped out of the home. I
am with her four days a week. I’m taking her to school.
This recommendation in front of you has taken away
my Sundays, my Mondays, my Tuesdays. I don’t know
how my daughter is going to deal with that. I don’t think
she’s going to foster very well with that. So that is
my recommendation that I get a week continuance to
obtain counsel, that I drop the motion today for the
temporary custody and the other motion for primary
residence be dropped as I feel that this is a matter much
bigger than what is being addressed today in court.’’
The defendant then declined to conduct any further
cross-examination of the guardian ad litem. At that
point, the court did not rule on her request for a one
week continuance to obtain counsel.
The plaintiff’s counsel then conducted a brief redirect
examination. On redirect, the guardian ad litem testified
that she had discussed the defendant’s concerns with
employees of the Department of Children and Families
(department) and with the family relations officer, and
that she had ‘‘reviewed every issue that [the defendant]
has raised about [the plaintiff] and all the issues for the
last three or four months.’’ She indicated that she had
no concerns about the child’s safety at the plaintiff’s
house. The plaintiff’s counsel then inquired of her if it
was correct that the family relations office did a ‘‘full
blown’’ evaluation, to which she replied, ‘‘Yes. It took
four months for that evaluation,’’ and went on to indi-
cate that the defendant’s concerns had been thor-
oughly reviewed.
After the plaintiff’s redirect examination of the guard-
ian ad litem, the court still did not rule on the defen-
dant’s request for a one week continuance or ask the
defendant if she had any evidence or witnesses to pre-
sent. The court did rule on the motions for modification,
finding that where the child would attend school had
to be decided before August 29, 2012, because that was
when school opened in the judge’s town of residence.
The court modified the custody order, designating the
plaintiff’s home as the child’s primary residence and
granting him final decision-making authority if the par-
ties reached an impasse on major issues, services, or
activities. The defendant’s access to the child was modi-
fied to alternating weekends and two weekdays after
school until 7 p.m., or overnight on those two weekdays
when school was not in session. The court also termi-
nated the plaintiff’s child support obligation.8
After the court ruled, the defendant stated, ‘‘Your
honor, may I interject. . . . May I provide you docu-
mentation of these police reports and the way that they
talk to each other in front of our child. May I provide
you with the [department’s] investigation?’’ The court
advised the defendant that it already had ruled, based
on the evidence it heard from the plaintiff. The defen-
dant then stated, ‘‘I have not had counsel up until this
time, throughout this whole process,’’ to which the
court responded, ‘‘I understand that, but the time to
get counsel was, probably, a month ago.’’ No further
hearing date was scheduled.
The defendant retained counsel, who timely filed a
motion to reargue on August 30, 2012, pursuant to Prac-
tice Book § 11-11.9 The motion claimed that the modi-
fied custody orders were entered prematurely in
derogation of § 46b-7,10 and that the defendant had been
denied a reasonable opportunity to examine the full
family relations evaluation report, which violated the
defendant’s right to due process. The court denied the
motion, without a hearing, on August 31, 2012.11
In the court’s articulated decision on the modification
of custody, it found that the family relations officer did
a full study and had a report back meeting a week prior
to the August 13, 2012 hearing, at which she told the
parties and the guardian ad litem her recommendations
and gave them the study. The court indicated there was
a need for a swift decision on August 13, 2012, because
the first day of school in the town in which the judge
resided was August 29, 2012. It then noted that both
the family relations officer and the guardian ad litem
were recommending that the minor child have her pri-
mary residence with the plaintiff, and the plaintiff’s
proposed orders, which the court entered, adopted the
recommendations of the family relations officer and
the guardian ad litem. The bases for the recommenda-
tions, the court determined, were the concerns about
the defendant and her brother, who lived with her, as
testified to by the guardian ad litem. The court
recounted the statements made by the defendant, who
‘‘spoke at length about her concerns about [the child]
living with [the plaintiff],’’ but determined that the fam-
ily relations officer and the guardian ad litem had spo-
ken at length to employees from the department and
concluded that the child’s residing with the plaintiff
‘‘would have no negative impact on her health and
safety, while her having primary residence with [the
defendant] might negatively impact [the child’s] school
attendance and her health.’’ As to the modification of
the custody order, the court concluded, ‘‘In light of the
fact that [the defendant] had known about the work of
the [guardian ad litem] and the ongoing family relations
study for some four months, had received the results
of the family relations study the prior week, and the
fact that school was beginning two weeks from the
hearing date, the court did not believe that [the defen-
dant’s] request for time to obtain an attorney was timely.
The request was made during the hearing.’’
In the court’s articulated ruling on the denial of the
motion to reargue, it stated: ‘‘One of the bases of the
motion to reargue was that [the defendant] did not
have counsel. Parties, particularly in the family context,
should not be permitted to take their chances without
counsel, and get a second bite at the apple with counsel
when their self-representation results in an adverse rul-
ing. Based on the opinion of [the guardian ad litem]
that the proposed orders were in the best interest of
[the child], and her concerns about [the child’s] continu-
ing to have primary residence with [the defendant], it
is unlikely that the court’s decision would have been
different even if [the defendant] had been represented
by counsel.’’ The court did not modify its previous find-
ing that the defendant had received the results of the
family relations study a week before the hearing, and
did not address the defendant’s claim that § 46b-7 pro-
hibits a family relations matter in which an investigation
has been ordered from being disposed of until the report
has been filed and the parties have had a reasonable
opportunity to examine it. On September 21, 2012, the
defendant appealed from the August 13, 2012 postjudg-
ment order modifying custody and the August 31, 2012
order denying her motion to reargue the August 13,
2012 order.
We consider together the defendant’s first and third
claims that, in violation of § 46b-7, the court prema-
turely conducted a hearing prior to the family relations
report being filed, and that the court abused its discre-
tion in denying the defendant’s motion to reargue. The
defendant claims that a new hearing is warranted on
the parties’ motions for modification.12
We begin with a discussion of the applicable standard
of review. ‘‘It is well settled that, in family matters, this
court will not disturb the trial court’s orders unless it
has abused its legal discretion or its findings have no
reasonable basis in fact. . . . It is within the province
of the trial court to find facts and draw proper infer-
ences from the evidence presented. . . . [W]here the
factual basis of the court’s decision is challenged we
must determine whether the facts set out in the memo-
randum of decision are supported by the evidence or
whether, in light of the evidence and the pleadings in
the whole record, these facts are clearly erroneous.
. . . Likewise, [w]e review claims that the court
improperly denied a motion for reargument under the
abuse of discretion standard. . . . When reviewing a
decision for an abuse of discretion, every reasonable
presumption should be given in favor of its correct-
ness.’’ (Citation omitted; internal quotation marks omit-
ted.) Payton v. Payton, 103 Conn. App. 825, 829, 930
A.2d 802, cert. denied, 284 Conn. 934, 935 A.2d 151(2007).
General Statutes § 46b-6 authorizes a trial court to
order an investigation of any circumstances pertaining
to the disposition of a family relations matter.13 Section
46b-7 requires that once such an investigation has been
ordered, the case shall not be disposed of until the
report has been filed and counsel and the parties have
had a reasonable opportunity to examine it prior to the
time the case is to be heard. The statute specifically
mandates how the report of an investigation is to be
filed.14 Prior to 2011, consistent with the language of
§ 46b-7, Practice Book § 25-60 (a) provided that if the
court orders such an investigation, ‘‘the case shall not
be disposed of until the report has been filed . . .
unless the judicial authority shall order that the case
be heard before the report is filed, subject to modifica-
tion on the filing of the report.’’ (Emphasis added.)
Unlike the prior version of Practice Book § 25-60, the
current version of the rule, in effect when the present
case was heard, eviscerated the provision that an order
made without benefit of the report be subject to modifi-
cation upon filing of the report. The deletion of that
clause arguably impairs the substantive right granted
by § 46b-7. When a statute and a Practice Book rule are
in conflict on a matter of substance, the provisions of
the statute must prevail. See State v. Morrison, 39 Conn.
App. 632, 634–35, 665 A.2d 1372, cert. denied, 235 Conn.
939, 668 A.2d 376 (1995).
The interrelation of the statute and the Practice Book
rule was first addressed in Duve v. Duve, 25 Conn. App.
262, 267, 594 A.2d 473, cert. denied, 220 Conn. 911, 597
A.2d 332 (1991), cert. denied, 502 U.S. 1114, 112 S. Ct.
1224, 117 L. Ed. 2d 460 (1992), in which this court held
that despite the provision in Practice Book § 479, the
predecessor to § 25-60, permitting a court to proceed
before the filing of the report, the rule did not ‘‘expand,
abridge or modify any substantive rights or remedies
encompassed by . . . § 46b-7.’’ This court further held
that ‘‘[t]he procedures set forth in Practice Book § 479
implemented the statute while eliminating any unneces-
sary delay of the proceedings.’’15 We concluded that
‘‘there is no conflict between . . . § 46b-7 and Practice
Book § 479. The court followed the rules set forth in
Practice Book § 479 and proceeded with the hearing
only after advising the father that he would be given
time to rebut the report.’’ Id., 267–68.16 Therefore, under
Duve, despite the eviscerating amendment to the Prac-
tice Book rule in 2011, any court, proceeding on a family
relations matter prior to the filing of a report, must
remain open to reconsidering its orders and possibly
modifying them once the report is filed.17
In Payton v. Payton, supra, 103 Conn. App. 831, this
court addressed once again a claim that, while the pre-
2011 version of Practice Book § 25-60 was in effect, a
trial court improperly had issued custody orders in the
absence of a previously ordered report by the family
relations division. In that case, the court-ordered report
was not completed by the date of the first hearing on
the motion for modification. Neither party objected to
the issuance of a decision prior to the filing of the
report. The court did not receive a report until after it
issued its order transferring physical custody to the
plaintiff. We determined that there was no evidence to
suggest that the court’s judgment was not ‘‘ ‘subject to
modification on the filing of the report’ ’’ and, therefore,
noncompliant with the mandates of Practice Book § 25-
60 (a). Although the court did not mention specifically
the caveat that its judgment may be modified upon
receipt of the report, we concluded that even in the
absence of the court stating so expressly, no authority
existed that held that the judgment was not subject to
modification within the meaning of the rule. Accord-
ingly, we determined that it was ‘‘pure conjecture to
assume that the court would not have been willing to
modify the judgment on that basis.’’ Id., 832. Moreover,
we noted that the court was not required to obtain the
disinterested assessment contained in a report, espe-
cially because, in the hearing that was the subject of
Payton, the court heard three days of testimony from
both parties, as well as testimony from the child’s guard-
ian ad litem. This court held, ‘‘[u]nder such circum-
stances, in which the defendant did not object at the
hearing or otherwise request that the court postpone
its decision pending the completion of the report, we
cannot say that the court abused its discretion as to
this issue.’’ Id., 832–33; see Cotton v. Cotton, 11 Conn.
App. 189, 193, 526 A.2d 547 (1987) (where party did not
seek continuance pending recommendation of family
relations division, trial court within its discretion not
to consider previously ordered report from family rela-
tions division before rendering judgment).18
In the present case, the testimony of the guardian ad
litem, as elicited on August 13, 2012, by the plaintiff’s
counsel, strongly suggested, albeit erroneously, that the
report had been filed. The court was never advised
otherwise during the hearing. The plaintiff’s counsel
inquired, ‘‘Did [the family relations officer] hold a meet-
ing last week, and did she give her recommendations
as to what would happen in this case after a full evalua-
tion?’’ The guardian ad litem replied that the family
relations officer had met with the parties the previous
week for a ‘‘call back’’ meeting and presented her rec-
ommendations, and that ‘‘[the family relations officer]
did a full family relations evaluation, and we had a call
back meeting where she told us her recommendations
and handed it out to us.’’ (Emphasis added.) On redirect
examination, the plaintiff’s counsel inquired of the
guardian ad litem if it was correct that the family rela-
tions office had conducted a ‘‘full blown’’ evaluation,
to which she replied, ‘‘Yes. It took four months for that
evaluation,’’ and went on to indicate that the defen-
dant’s concerns had been thoroughly reviewed.
In light of the representations set forth previously, it
appears that at the hearing on August 13, 2012, the court
perhaps was led to the erroneous belief that the family
relations report had been filed. Nonetheless, in her
motion to reargue that was filed a few weeks after the
court issued its ruling, the defendant clearly indicated
that the report had not yet been filed. This was an
undisputed fact that the court had the ability readily to
verify simply by checking with the clerk or looking in
the court file. Moreover, our review of the transcript
of the hearing in this matter does not reveal that despite
the fact that the report had not been filed, the defendant
had received a full and fair hearing. See Duve v. Duve,
supra, 25 Conn. App. 268. The guardian ad litem testified
that she had ‘‘talked extensively with family relations,’’
which suggests that she was privy to information with
which the defendant was not yet provided, but perhaps
would have been contained in the report. The family
relations officer did not testify and her recommenda-
tions are not in the record. The presentation of the
custody issue on August 13, 2012, was entirely one-
sided; the court ruled before considering the defen-
dant’s request for a continuance for the purpose of
obtaining counsel and before she was allowed to pre-
sent evidence. The unsworn representations, made in
narrative form by the self-represented defendant at that
hearing, were not evidence.
Also, unlike Payton, where this court determined
that there was no evidence to suggest that the court’s
judgment was not subject to modification on the filing
of the report and therefore noncompliant with the statu-
tory mandate; Payton v. Payton, supra, 103 Conn. App.
832; we have such evidence here. The trial court, in
its articulation of the denial of the motion to reargue,
concluded that it had been sufficient to have given
the defendant ample opportunity to cross-examine the
guardian ad litem. The court further indicated that it
was unlikely that its decision would have been different
even if the defendant had been represented by counsel.
The court never addressed one of the reasons for which
the defendant, now represented by counsel, was seek-
ing reargument, the denial of the opportunity to exer-
cise her statutory right to review and refute the report.
After the defendant obtained counsel and filed a
motion to reargue alerting the court to the undisputed
fact that the report had not yet been filed or distributed
as of the date of the custody hearing, the court abused
its discretion in not correcting its clearly erroneous
finding that the parties had been provided with the
report,19 and in not providing the defendant with an
opportunity to examine and refute the contents of the
report and to argue that the court reconsider its rul-
ings.20 By not providing the defendant with such an
opportunity, the court violated the substantive right
granted to the defendant under § 46b-7. The court’s
error undermines the correctness of its orders regarding
custody and access to the parties’ minor child as well
as the interrelated issue of child support. We are per-
suaded that the proper remedy is to reverse the judg-
ment of the trial court and to remand the matter to that
court to conduct a new hearing on the parties’ motions
for modification.
The judgment is reversed and the case is remanded
for a new hearing on the parties’ motions for modifica-
tion of custody and child support.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
Because our resolution of the defendant’s claims regarding § 46b-7 and
the denial of her motion to reargue requires a new hearing on the parties’
motions for modification, we need not address the remaining claims of error
raised by the defendant because, being related to the specific manner in
which the prior hearing was conducted, they are unlikely to arise during
the proceedings on remand. See In Re Deleon J., 290 Conn. 371, 373 n.1,
963 A.2d 53 (2009).
2
In 2008, the defendant filed an application for custody and child support,
and the plaintiff filed an application for custody in the judicial district of
Middlesex. The defendant’s application, Docket No. FA-08-4005919-S, was
ordered consolidated with the plaintiff’s application, Docket No. FA-08-
4009455-S, by the court, Calmar, J., on January 12, 2009. All pleadings were
ordered moved into the latter file.
3
A ‘‘report back date’’ in family matters is a legal term of art that specifies
a date to return to court to ascertain the status of a pending matter, to
obtain specific information, or to monitor compliance with court orders. It
is not a term used to connote a date scheduled for a full contested hearing.
See Buehler v. Buehler, 117 Conn. App. 304, 313, 978 A.2d 1141 (2009) (trial
court ordered report back date for parties to return to court and determine
whether financial issue existed); Strobel v. Strobel, 73 Conn. App. 428, 429–30,
808 A.2d 698 (2002) (trial court denied motion for supervised visitation
without prejudice, ordered family relations custody and visitation evaluation,
and set date to report back to court two months later, but did not begin
custody hearing for four more months.), appeal dismissed, 267 Conn. 901,
838 A.2d 209 (2003); Daversa v. Daversa, Superior Court, judicial district
of New London at Norwich, Docket No. FA-00-0121618-S (January 3, 2008)
(trial court ordered report back date to ascertain status of family relations
investigation); Moriello v. Moriello, Superior Court, judicial district of Water-
bury, Docket No. FA-98-0147807-S (March 16, 2006) (trial court ordered
defendant found in contempt to report back on specified court date to
ascertain compliance with child support order).
4
The written policies of the family relations division on Family Services
Comprehensive Evaluations call for a ‘‘final conjoint meeting’’ at which ‘‘[the
family relations officer] ask[s] the parent(s)/client(s) and their attorney(s)
to consider the recommendation and to notify the [family relations officer]
within two (2) weeks as to whether or not the custody or visitation issues
remain in dispute. . . . If the final joint conference does not result in a
confirmed settlement by counsel and/or the parties of the disputed issues,
the evaluator will submit a comprehensive written evaluation to the Clerk
of the Court including recommendations. . . . Completed written reports
on non-agreements will be submitted to the Court within five (5) months
from the time of the referral notification date.’’ Judicial Branch Court Support
Services Division Policy and Procedures, Family Services Comprehensive
Evaluation, pp. 6–9.
5
The record reflects that, although the plaintiff’s counsel indicated the
need for an emergency hearing, no written motion requesting such a hearing
had been filed. ‘‘The purpose of requiring written motions is not only the
orderly administration of justice; see Malone v. Steinberg, 138 Conn. 718,
721, 89 A.2d 213 (1952); but the fundamental requirement of due process
of law. Winick v. Winick, [153 Conn. 294, 299, 216 A.2d 185 (1965)].’’ Connolly
v. Connolly, 191 Conn. 468, 475, 464 A.2d 837 (1983).
6
The family relations officer did not testify and her recommendations
were not provided directly to the court. The plaintiff’s counsel submitted
proposed orders and established, through direct examination of the guardian
ad litem, that two of her six proposed orders mirrored, ‘‘in essence,’’ the
recommendations of the family relations officer.
7
The guardian ad litem, on cross-examination, admitted that she had not
visited the defendant’s home. There is no indication in the record that the
defendant had been evaluated or treated by a mental health professional.
The guardian ad litem testified that the defendant had indicated, at a deposi-
tion, that she was taking an unspecified medication.
8
The plaintiff’s counsel had advised the court at the beginning of the
hearing that she was not pursuing any economic issues and issues of child
support could be dealt with ‘‘after today.’’ Although the defendant has not
raised a claim in this regard, the order modifying child support was entered
without either party having submitted a sworn financial affidavit or a child
support guidelines worksheet. In entering its order, the court made no
reference to the child support guidelines. See Practice Book § 25-30 (a) and
(e); Tuckman v. Tuckman, 308 Conn. 194, 208, 61 A.3d 449 (2013) (trial
court abused discretion by establishing child support without requiring child
support worksheet, without determining net income of parties and without
applying child support guidelines).
9
Practice Book § 11-11 provides in relevant part: ‘‘Any motions which
would, pursuant to Section 63-1, delay the commencement of the appeal
period, and any motions which . . . would toll the appeal period and cause
it to begin again, shall be filed simultaneously insofar as such filing is
possible, and shall be considered by the judge who rendered the underlying
judgment or decision. The party filing any such motion shall set forth the
judgment or decision which is the subject of the motion, the name of the
judge who rendered it, the specific grounds upon which the party relies,
and shall indicate on the bottom of the first page of the motion that such
motion is a Section 11-11 motion. . . .’’
Practice Book § 11-12 (c) provides: ‘‘The motion to reargue shall be consid-
ered by the judge who rendered the decision or order. Such judge shall
decide, without a hearing, whether the motion to reargue should be granted.
If the judge grants the motion, the judge shall schedule the matter for hearing
on the relief requested.’’
10
General Statutes § 46b-7 provides: ‘‘Whenever, in any family relations
matter, including appeals from the Superior Court, an investigation has been
ordered, the case shall not be disposed of until the report has been filed
as hereinafter provided, and counsel and the parties have had a reasonable
opportunity to examine it prior to the time the case is to be heard. Any
report of an investigation shall be made in quadruplicate and shall be filed
with the clerk and mailed to counsel of record.’’
11
This appeal was filed on September 21, 2012. At that time, the trial court
had not created a signed memorandum of its decision. After the defendant
filed notice pursuant to Practice Book § 64-1 (b), the trial court signed a
transcript of its decision. Later, we granted relief in accordance with a
motion for review filed by the defendant in that we ordered the trial court
to articulate the factual and legal basis for its August 13, 2012 decision
awarding the parties joint legal custody, its order that their child’s primary
residence would be with the plaintiff, and its August 31, 2012 denial of the
defendant’s motion to reargue. The trial court issued its articulation on May
9, 2013, almost seven months after the trial court clerk placed a notice in
the court file indicating that the evaluation report at issue had been filed
on September 27, 2012.
12
Although the plaintiff was permitted to present his evidence first at the
subject hearing, the clerk’s coded entry in the court file indicates that the
court’s decision was a ruling on the defendant’s motion for modification,
which did not appear on the docket on August 13, 2012. In light of the facts
apparent in the record, we consider this coding in error, as the request for
the modification of the plaintiff’s child support obligation, which the court
also granted, was contained only within the plaintiff’s motion for modifi-
cation.
13
General Statutes § 46b-6 provides in relevant part: ‘‘In a pending family
relations matter the court or any judge may cause an investigation to be
made with respect to any circumstance of the matter which may be helpful
or material or relevant to a proper disposition of the case. . . .’’
14
See footnote 10 of this opinion.
15
‘‘Although the Superior Court is granted broad authority to promulgate
rules, such rules shall not abridge, enlarge or modify any substantive right.
Conn. Const., art. V, § 1; General Statutes § 51-14 (a) . . . .’’ Duve v. Duve,
supra, 25 Conn. App. 267.
16
The family relations officer in Duve met with the parties to relate the
findings of her study and provided both parties with a two page written
statement disclosing the names of people she had interviewed in compiling
her report. Duve v. Duve, supra, 25 Conn. App. 265. This meeting took place
in late January, but the hearing did not proceed until March 19. Id. The
court in Duve also noted that during the initial hearing on the self-represented
father’s motion to modify, the family relations officer gave extensive testi-
mony on direct examination and was then extensively cross-examined by
the father. The father again called the family relations officer as a witness
in the presentation of his case. After the report was filed, the father was
given an opportunity, pursuant to his motion for a mistrial, to argue that
because he did not have the report prior to the hearing, he was entitled to
a modification of the court’s orders. The court denied the motion for mistrial
after the defendant failed to offer the trial court any evidence or testimony
showing a disparity between the information contained in the report and
the information contained in the family relations officer’s worksheet or her
extensive testimony at trial. Id., 268.
17
Courts often are called upon to make ex parte or exigent rulings, such
as those related to temporary custody, that may later be subject to reconsid-
eration upon a full and fair hearing on the merits of the pending matter. If
the ‘‘emergency’’ issue in this case, where the parties’ child would attend
school in the fall, had to be decided on August 13, 2012, a more limited,
temporary order might have resolved that question without prejudice to
either party, and the court could have more fully disposed of the custody
issue at a later date. See Strobel v. Strobel, supra, 73 Conn. App. 430–37
(when parties given family relations report just prior to commencement of
emergency hearing, court issued temporary orders but continued matter
one month for full hearing on custody and visitation orders to give parties
time to review report).
18
Notably, the defendant in Payton did not claim, on appeal, that the
report would have yielded additional or new information concerning each
party’s ability to retain physical custody of the child. Payton v. Payton,
supra, 103 Conn. App. 832 n.6. In the present case, the defendant pleaded
with the court to permit her time to rebut the hearsay and double hearsay
assertions of the guardian ad litem as to the result of the family relations
officer’s investigation. As of the dates the defendant sought reargument,
August 30, 2012, and filed her appeal, September 21, 2012, the report still
had not been filed.
19
Even in its articulation on May 9, 2013, the court found that, as of the
time of the hearing, the defendant ‘‘had received the results of the family
relations study the prior week . . . .’’
20
The plaintiff suggests in his appellate brief that the defendant had an
available remedy for the court’s error that she did not pursue in that she
could have filed a subsequent motion for modification of the court’s custody
and child support orders. This, however, would not have been a sufficient
remedy because it would not have entitled her to a reconsideration of the
basis for the August 13, 2012 custody modification, but would have required
her to demonstrate that circumstances had changed since that time, thereby
warranting a modification. ‘‘To obtain a modification, the moving party must
demonstrate that the circumstances have changed since the last court order
such that it would be unjust or inequitable to hold either party to it. Because
the establishment of changed circumstances is a condition precedent to a
party’s relief, it is pertinent for the trial court to inquire as to what, if any,
new circumstance warrants a modification of the existing order.’’ (Internal
quotation marks omitted.) Kelly v. Kelly, 54 Conn. App. 50, 55–56, 732 A.2d
808 (1999).