Thunelius v. Posacki ( 2019 )

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GERALD THUNELIUS v. JULIA POSACKI
(AC 40635)
Lavine, Keller and Bishop, Js.
Syllabus
The defendant mother appealed to this court from the judgment of the
trial court awarding the plaintiff father sole legal and primary physical
custody of the parties’ minor child and issuing certain orders. The plain-
tiff had filed an application seeking sole custody of the child, who had
been living with the defendant since his birth. The plaintiff also filed
motions for pendente lite orders to establish a parenting plan, to appoint
a guardian ad litem for the child and for child support. Thereafter, the
trial court issued a pendente lite order appointing H as guardian ad litem
for the child and accepted the parties’ stipulation regarding pendente
lite financial orders. Subsequently, the defendant filed a motion seeking
to hold the plaintiff in contempt for violating the pendente lite financial
orders, and the plaintiff filed a motion to modify his support obligations
under the financial orders, claiming a substantial change in circum-
stances. Following a hearing on the plaintiff’s application for custody,
the trial court found that the plaintiff had rebutted the presumption of
joint legal custody and ordered that the plaintiff have sole legal and
primary physical custody of the child, with parenting time for the defen-
dant, and that the defendant pay the plaintiff $241 in weekly child support
in accordance with the Connecticut child support guidelines. The court
also issued a protective order pending any potential appeal to secure
the custody award in order to provide a smooth as possible transition
for the child. In addition, the court issued orders related to, inter alia,
the child’s education and associated costs, and ordered that H continue
to serve as the child’s guardian ad litem and issued various orders related
thereto. The court also granted the plaintiff’s motion to modify and
ordered that the plaintiff’s child support obligation would terminate on
the date when the defendant’s child support obligation began. The court,
however, did not rule on the defendant’s motion for contempt. On the
defendant’s appeal to this court, held:
1. The defendant could not prevail on her claim that the trial court improperly
delegated its decision-making authority to a nonjudicial entity when it
defined the duties and responsibilities of the guardian ad litem: none
of the challenged duties amounted to an improper delegation of the
court’s authority, as the breadth of tasks assigned to the guardian ad
litem reflected the court’s confidence in the commitment and talent of
the guardian ad litem, and the court’s desire to minimize the effect of
the parties’ toxic parenting relationship on the child and to discourage
them from heedless and incessant litigation over matters that should
not require judicial intervention; moreover, contrary to the defendant’s
claim, requiring that the guardian ad litem hold the child’s passport,
monitor the parties’ communications, review the child’s telephone bill,
investigate facts, make recommendations, mediate disputes and testify
in court in no way empowered the guardian ad litem to issue orders
that affect the parties or the child, and although the court did authorize
the guardian ad litem to select a coparenting counselor/coordinator in
the absence of an agreement between the parties, any dispute regarding
the selection of a coparenting counselor/coordinator reflected little more
than a difference of opinion or preference between the parties and did
not so implicate the best interests of the child as to require judicial
resolution of the matter.
2. The trial court abused its discretion in ordering that the prevailing party
in any postjudgment dispute between the parties adjudicated by the
court after unsuccessful mediation with the guardian ad litem be reim-
bursed by the other party for his or her share of the guardian ad litem’s
fees; the amount of any future fees and the parties’ respective financial
capacities to pay such fees were purely speculative, and there was
nothing in the record to guarantee that if any such guardian ad litem
fees became due, the respective financial situations of the parties would
have remained unchanged.
3. The defendant’s claim that the trial court improperly appointed the guard-
ian ad litem without having complied with certain statutory requirements
was moot, that court’s relevant order having been superseded by subse-
quent orders of the court that addressed the same issues, and, therefore,
there was no practical relief that this court could afford the defendant.
4. The trial court did not abuse its discretion in, sua sponte, issuing its
protective order: the language of the order clearly indicated that that
court intended it to function as a protective order issued pursuant to
Yontef v. Yontef (185 Conn. 275) that was meant to ensure an orderly
transition that protected the primary interests of the child in a continu-
ous, stable custodial placement, and the court had the inherent authority
to issue such an order sua sponte to preserve the parties’ rights during
the immediate postjudgment period pending an appeal; moreover, the
need for such an order was amply supported by the record, as the court
found that there was an extraordinarily high level of conflict and mistrust
between the parties, that the parties had been wholly incapable of
resolving such conflict, that the parties demonstrated a willingness to
disregard court orders and to engage in self-help, and that their behavior
had the potential to do irreparable harm to the child.
5. The trial court abused its discretion in ordering the parties to enroll the
child in private school through high school and to divide the payments
for that schooling: although that court did not abuse its discretion in
determining that it was appropriate for the child to continue to attend
the private school that he had been enrolled in through eighth grade,
there was no evidence of the cost of a private high school or that the
parties had ever agreed on the child attending a private high school, as
the parties’ financial affidavits listed only the cost of the child’s current
attendance at the private school, and the court’s determination that it
lacked sufficient evidence to issue an educational support order for
higher education or private occupational school, pursuant to statute
(§ 46b-56c [c]), supported the notion that the court also lacked sufficient
evidence to issue an order for private high school.
6. The trial court did not abuse its discretion in relying on the child support
guidelines worksheet in issuing its child support orders; contrary to the
defendant’s claim, the net income figures contained in the child support
guidelines worksheet and relied on by the court were supported in
the record.
7. This court declined to review the defendant’s claim that the trial court,
by failing to order the plaintiff to reimburse her for certain expenses
he allegedly should have paid in accordance with a prior stipulation
between the parties, in effect, granted the plaintiff a retroactive modifica-
tion of pendente lite orders to pay those expenses; because the trial
court did not rule on the defendant’s motion for contempt, and it made
no findings or orders in regard to what the defendant alleged the plaintiff
owed, there was no retroactive modification from which to appeal, and,
therefore, in the absence of a decision on the defendant’s motion from
the trial court or an explanation for its failure to rule on the motion,
this court had no basis for reviewing the trial court’s silence.
Argued May 16—officially released October 22, 2019
Procedural History
Application for custody of the parties’ minor child,
brought to the Superior Court in the judicial district of
Stamford-Norwalk and tried to the court, Tindill, J.;
judgment awarding sole legal and primary physical cus-
tody to the plaintiff, and issuing certain orders; there-
after, the court, Heller, J., issued certain orders, and
the defendant appealed to this court. Appeal dismissed
in part; judgment reversed in part; judgment directed
in part.
Samuel V. Schoonmaker IV, with whom, on the brief,
was Wendy Dunne DiChristina, for the appellant
(defendant).
Alexander J. Cuda, for the appellee (plaintiff).
Opinion
BISHOP, J. In this protracted, high conflict custody
and support matter, the defendant mother, Julia
Posacki, appeals from the judgment rendered by the
trial court following a sixteen day trial on the custody
action filed by the plaintiff father, Gerald Thunelius.
On appeal, the defendant claims that the court improp-
erly (1) delegated its decision-making authority to the
guardian ad litem appointed for the parties’ minor child,
(2) ordered that the prevailing party in any postjudg-
ment dispute adjudicated by the court after unsuccess-
ful mediation with the guardian ad litem be reimbursed
by the other party for his or her share of the guardian
ad litem’s fees, (3) appointed the guardian ad litem
without having complied with the requirements of Gen-
eral Statutes §§ 46b-54 and 46b-12, (4) issued a protec-
tive order sua sponte, (5) ordered the parties to enroll
the child in private school through high school and to
share the payments for that schooling, (6) relied on
unsupported net income figures on the child support
guidelines worksheet prepared by the Judicial Branch,
and (7) retroactively modified a pendente lite child sup-
port order by effectively forgiving the plaintiff’s support
arrearage. We agree with the defendant’s second and
fifth claims and further conclude that the defendant’s
third claim is moot. Accordingly, we affirm in part and
reverse in part the court’s judgment, and we dismiss in
part the defendant’s appeal.
The following facts and procedural history are taken
from the court’s memorandum of decision or are part
of the record.1 The parties, who never married one
another, are the parents of a minor child who was born
on November 2, 2010. On April 18, 2012, the plaintiff
filed an application seeking sole custody of the child,
who had been living with the defendant since his birth.
The plaintiff also filed motions for pendente lite orders
to establish a parenting plan, to appoint a guardian ad
litem for the child, and for child support.
At a status conference held on June 20, 2012, the
plaintiff’s counsel recommended several attorneys for
possible appointment as a guardian ad litem for the
child, including Attorney Jocelyn B. Hurwitz. The defen-
dant opposed appointing a guardian ad litem, but her
attorney agreed that Hurwitz would be an acceptable
choice should the court choose to appoint one. At the
conclusion of the status conference, the court, Novack,
J., issued an oral pendente lite order appointing Hurwitz
as guardian ad litem for the child. The court did not
specify Hurwitz’ duties or the length of her
appointment.
On October 15, 2012, the court, Schofield, J.,
approved the parties’ pendente lite parenting agree-
ment, pursuant to which the parties were to have joint
legal custody of the child, with the defendant having
primary physical custody and the plaintiff having par-
enting time every other weekend and some holidays
and vacations. Subsequently, on October 2, 2013, the
court, Emons, J., accepted the parties’ stipulation
regarding pendente lite financial orders. Pursuant to
the pendente lite financial orders, the plaintiff was
required to pay the defendant $389 in weekly child
support and was required to provide medical and dental
insurance for the child if available through his
employer. As to the child’s unreimbursed medical
expenses, qualified child care expenses, and tuition and
costs for the Whitby School through June, 2014, the
plaintiff was responsible for 52 percent, and the defen-
dant was responsible for 48 percent.2
On February 24, 2014, the defendant filed a motion
seeking to hold the plaintiff in contempt for violating
the pendente lite financial orders. She alleged that the
plaintiff had failed and refused to reimburse her for his
share of child care costs in the amount of $4309. She
further alleged that the plaintiff unilaterally had reen-
rolled the child at the Whitby School for the 2014–2015
school year without the defendant’s consent in violation
of the pendente lite parenting plan and that he had
informed her that he intended to deduct from his child
support payments the defendant’s share of the tuition.
The defendant, therefore, requested that the court order
the plaintiff to reimburse her for the child care costs,
to refrain from making deductions to his child support
obligation, and to pay 100 percent of the child’s tuition
for the Whitby School for the 2014–2015 school year.
Subsequently, on May 15, 2014, the plaintiff filed a
motion to modify his support obligations under the
2013 pendente lite financial orders, citing a substantial
change in circumstances.
A trial to the court, Tindill, J., on the plaintiff’s cus-
tody application was conducted over the course of six-
teen days between February, 2015 and October, 2016.
In her proposed claims for relief filed on September 7,
2016, the defendant sought reimbursement from the
plaintiff of $31,586 for child care expenses, $7117 for the
child’s health insurance premiums, $13,361 for tuition
at the Whitby School for the 2014–2015 school year,
and the plaintiff’s share of all of the child’s medical
expenses incurred since October 2, 2013.
On June 29, 2017, the court issued a memorandum
of decision finding that the plaintiff had rebutted, by a
preponderance of the evidence, the presumption of
joint legal custody under General Statues § 46b-56a.3
The court, therefore, ordered that the plaintiff have sole
legal custody and primary physical custody of the child,
with parenting time for the defendant, and that the
defendant pay the plaintiff $241 in weekly child support
in accordance with the Connecticut child support guide-
lines. The court further ordered that, ‘‘[g]iven the likeli-
hood of appeal, the court, sua sponte, hereby enters a
protective order pending any potential appeal to secure
the award of sole custody to the plaintiff and parenting
time for the defendant. The court, in consideration of
the child’s best interests, intends this protective order
to offer as smooth as possible a transition for the child,
under the circumstances, in the immediate postjudg-
ment period.’’
As to the child’s education, the court ordered that
the child ‘‘shall attend the Whitby School until he com-
pletes the [eighth] grade or the parties’ written stipula-
tion to change schools is approved and made an order
of the court, whichever occurs first’’ and that ‘‘[t]he
parties shall split the cost, beginning the 2017–2018
academic year, of Whitby School or other private school
education 56 [percent] (plaintiff) [and] 44 [percent]
(defendant) through [twelfth] grade.’’ The court noted,
however, that there was insufficient evidence presented
for it to issue an educational support order for the
child’s education beyond high school pursuant to Gen-
eral Statutes § 46b-56c.
The court further ordered that Hurwitz ‘‘shall con-
tinue to serve as guardian ad litem . . . for the minor
child until further order of the court.’’ The court also
ordered in relevant part that ‘‘[t]he parties shall work
to resolve any dispute or conflict regarding the minor
child by mediation first with the [guardian ad litem]
prior to filing a motion with the court. The cost and
fees associated with mediation of postjudgment dis-
putes with the [guardian ad litem] shall be split equally
(50/50) by the parents. In the event that a motion is
filed and litigated after unsuccessful resolution with
the [guardian ad litem] of the dispute or issue regarding
the minor child, the party who prevails in court shall
be reimbursed his/her 50 [percent] for the [guardian ad
litem] fees by the other party within one week of the
court order resolving the dispute or issue.’’ In reappoint-
ing Hurwitz as guardian ad litem, the court did not make
an express finding that the appointment was in the
child’s best interests as required by § 46b-54 (a); nor
did it give the parties an opportunity to agree on a
different person to serve in the role as required by § 46b-
12 (a). The court also did not issue a subsequent order
that included all of the information required by § 46b-
12 (c).
Additionally, the court ordered the parties ‘‘to work
with Dr. David Bernstein, who shall serve as a coparent-
ing counselor/coordinator, until further order of the
court. . . . In the event Dr. Bernstein is not available
to work with the parties as a coparenting counselor/
coordinator, the [guardian ad litem] shall offer the par-
ties no less than three options for a coparenting coun-
selor/coordinator in writing no later than July 31, 2017.
The options presented for the coparenting counselor/
coordinator shall be based on the [guardian ad litem’s]
own independent research and work on behalf of her
ward . . . . The parties shall notify the [guardian ad
litem], in writing, no later than one week from receipt of
the options of their choice . . . from the coparenting
counselor/coordinator options. In the event the parties
do not agree on one of the coparenting counselor/coor-
dinator options, or do not agree in writing within one
week (without good cause as determined by [guardian
ad litem]), the [guardian ad litem] shall select and notify
the coparenting counselor/coordinator of her choice.’’
The court also ruled on several of the parties’ unre-
solved motions, including the plaintiff’s May 15, 2014
motion to modify his pendente lite support obligations.
The court granted this motion and ordered that the
plaintiff’s child support obligation would terminate as
of July 1, 2017, when the defendant’s support obligation
began. The court did not, however, rule on the defen-
dant’s February 24, 2014 motion for contempt. Nor did
the court make any findings or issue any orders regard-
ing any claimed arrearages. This appeal followed.
I
The defendant first claims that the court improperly
delegated its authority to the guardian ad litem when
it ‘‘defined the duties and responsibilities of the [guard-
ian ad litem] . . . .’’ We are not persuaded.
‘‘[W]hether the court improperly delegated its judicial
authority presents a legal question over which we exer-
cise plenary review.’’ Zilkha v. Zilkha, 180 Conn. App.
143, 170, 183 A.3d 64, cert. denied, 328 Conn. 937, 183
A.3d 1175 (2018). ‘‘It is well settled . . . that [n]o court
in this state can delegate its judicial authority to any
person serving the court in a nonjudicial function. The
court may seek the advice and heed the recommenda-
tion contained in the reports of persons engaged by the
court to assist it, but in no event may such a nonjudicial
entity bind the judicial authority to enter any order or
judgment so advised or recommended. . . . A court
improperly delegates its judicial authority to [a nonjudi-
cial entity] when that person is given authority to issue
orders that affect the parties or the children. Such
orders are part of a judicial function that can be done
only by one clothed with judicial authority.’’ (Internal
quotation marks omitted.) Kyle S. v. Jayne K., 182 Conn.
App. 353, 371–72, 190 A.3d 68 (2018).
The defendant argues that ‘‘[t]he court has made the
[guardian ad litem] a permanent governmental presence
in the life of the child and the parents and has granted
[the guardian ad litem] decision-making authority in
some of the fundamentals of their parenting.’’ Specifi-
cally, the defendant notes that, pursuant to the court’s
orders, the guardian ad litem is (1) to hold the child’s
passport, (2) to have access to all family communica-
tions through OurFamilyWizard,4 (3) to receive copies
of the child’s telephone bill, (4) to investigate facts, (5)
to make recommendations as to what is in the child’s
best interests, (6) to mediate the parties’ disputes, (7)
to act as final arbiter in the selection of a coparenting
counselor/coordinator for the parties, and (8) to testify
in court if the parties are unable to resolve a dispute
in mediation.5 Contrary to the defendant’s suggestion,
none of these duties amounts to an improper delegation
of the court’s authority. In sum, the breadth of tasks
assigned to the guardian ad litem reflects the court’s
confidence in the commitment and talent of the guard-
ian ad litem, and the court’s desire to minimize the
effect of the parties’ toxic parenting relationship on
their child and to discourage them from heedless and
incessant litigation over matters that should not require
judicial intervention.
Moreover, requiring that the guardian ad litem hold
the child’s passport, monitor the parties’ communica-
tions, review the child’s telephone bill, investigate facts,
make recommendations, mediate disputes, and testify
in court in no way empowers the guardian ad litem
‘‘to issue orders that affect the parties or the [child].’’
(Emphasis added; internal quotation marks omitted.)
Kyle S. v. Jayne K., supra, 182 Conn. App. 371. Indeed,
as recognized by the Judicial Branch in a publication
developed pursuant to General Statutes § 46b-12a,6 a
guardian ad litem may be asked by the court to ‘‘[i]nves-
tigate facts,’’ ‘‘[r]eview files and records,’’ ‘‘[p]articipate
in court hearings,’’ ‘‘[m]ake recommendations to the
court,’’ and ‘‘[e]ncourage settlement of disputes.’’ Judi-
cial Branch, State of Connecticut, ‘‘Guardian Ad Litem
or Attorney for Minor Child in Family Matters’’ (June,
2014), available at https://www.jud.ct.gov/Publications/
FM224.pdf (last visited October 17, 2019).7
We conclude, as well, that although the court’s order
does empower the guardian ad litem to select a copar-
enting counselor/coordinator should the parties dis-
agree on whom to select, this does not constitute an
improper delegation of judicial authority because the
coparenting counselor/coordinator, in turn, has no dele-
gated decisional authority from the court. As our
Supreme Court has recognized, ‘‘conflicts frequently
develop over relatively minor decisions relating to the
day-to-day upbringing and support of minor children,
conflicts which in reality reflect little more than a differ-
ence of opinion or preference between sometimes hos-
tile parties. . . . Frequent litigation of these minor dis-
agreements leads to frustrating court delays . . . and,
because of the adversarial nature of traditional court
proceedings, can work to heighten tensions and engen-
der further conflict. . . . Where the issues involved do
not themselves impact directly on the child’s best inter-
ests, judicial resolution of each disagreement has been
characterized as burdensome and counterproductive.’’
(Citations omitted.) Masters v. Masters, 201 Conn. 50,
66, 513 A.2d 104 (1986). Thus, where the parties’ dispute
represents a mere ‘‘difference of opinion about funda-
mentally acceptable choices’’; id., 69; such dispute does
not ‘‘so implicate the best interests of the children as
to require a judicial decision . . . .’’ Id. In the present
case, any dispute regarding the selection of a coparent-
ing counselor/coordinator reflects little more than a
difference of opinion or preference between the parties
and does not so implicate the best interests of the child
as to require judicial resolution of the matter. Conse-
quently, the court’s order authorizing the guardian ad
litem to select a coparenting counselor/coordinator in
the absence of an agreement between the parties did not
amount to an improper delegation of judicial authority.
In sum, we conclude that the trial court did not
improperly delegate its authority to a nonjudicial entity
in defining the duties and responsibilities of the guard-
ian ad litem.
II
The defendant also claims that the court improperly
ordered that the prevailing party in any postjudgment
dispute adjudicated by the court after unsuccessful
mediation with the guardian ad litem be reimbursed by
the other party for his or her share of the guardian
ad litem’s fees. The defendant argues that this order
constitutes an improper delegation of the court’s
authority to decide whether to sanction the parties.
The defendant also appears to argue that the order is
improper because it provides for automatic sanctions
without taking into account the parties’ current finan-
cial circumstances or making a finding that the losing
party’s position was totally without color and taken in
bad faith. We disagree that this order amounted to an
improper delegation of judicial authority8 but agree that
it was nevertheless improper because the court’s
authority to award fees in a custody matter is circum-
scribed by statute and decisional law.
We first briefly set forth the applicable standard of
review. ‘‘[J]udicial review of a trial court’s exercise of its
broad discretion in domestic relations cases is limited
to the questions of whether the [trial] court correctly
applied the law and could reasonably have concluded
as it did. . . . In making those determinations, [this
court] allow[s] every reasonable presumption . . . in
favor of the correctness of [the trial court’s] action.’’
(Internal quotation marks omitted.) Pena v. Gladstone,
168 Conn. App. 141, 149, 144 A.3d 1085 (2016).
In our assessment of this claim, we start with the
oft-stated proposition that ‘‘[i]t is well entrenched in
our jurisprudence that Connecticut adheres to the
American rule. . . . Under the American rule, a party
cannot recover [attorney’s] fees in the absence of statu-
tory authority or a contractual provision.’’ (Citation
omitted.) Doe v. State, 216 Conn. 85, 106, 579 A.2d 37
(1990). Additionally, the scope of the American Rule
extends beyond the payment of counsel fees and
encompasses ordinary expenses and the burdens of
litigation as well. ACMAT Corp. v. Greater New York
Mutual Ins. Co., 282 Conn. 576, 582, 923 A.2d 697 (2007).
On the basis of our decisional law, we believe that the
theory and thrust of the American Rule pertains to the
assignment of fees and costs in the family law context
as well. In that context and as it applies to the question
at hand, ‘‘[t]he court may order either party to pay the
fees for [a] guardian ad litem . . . pursuant to General
Statutes § 46b-62, and how such expenses will be paid is
within the court’s discretion.’’ (Internal quotation marks
omitted.) Greenan v. Greenan, 150 Conn. App. 289, 305,
91 A.3d 909, cert. denied, 314 Conn. 902, 99 A.3d 1167
(2014). We look, then, to the parameters of § 46b-62 to
determine if the statute authorizes an award of fees to
one party from the other on the basis that a party seeks
judicial intervention after having failed to reach an
agreement. In this inquiry, because the provisions of
§ 46b-62 are an exception to the common-law American
rule, our teaching is that the statutory provisions must
be narrowly construed. See Fennelly v. Norton, 294
Conn 484, 504, 985 A.2d 1026 (2010) (‘‘[w]hen a statute
is in derogation of common law . . . it should receive
a strict construction and is not to be extended, modified,
repealed or enlarged in its scope’’ [internal quotation
marks omitted]). On the basis of our review of § 46b-
62 and the decisional law that flows from it, we find
no authority for the court’s award of guardian ad litem
fees in the case at hand.
‘‘The statutory authority for the award of fees for a
court-appointed guardian ad litem is found in § 46b-62.
. . . Section 46b-62 provides in relevant part: If, in any
proceeding under this chapter . . . the court appoints
an attorney for a minor child, the court may order the
father, mother or an intervening party, individually or
in any combination, to pay the reasonable fees of the
attorney. . . . The order for payment of [guardian ad
litem] fees under . . . § 46b-62 requires consideration
of the financial resources of both parties and the criteria
set forth in General Statutes § 46b-82. . . . Section 46b-
82 instructs the court to consider, inter alia, the age,
health, station, occupation, amount and sources of
income, vocational skills, employability, estate and
needs of each of the parties . . . .’’ (Internal quotation
marks omitted.) Greenan v. Greenan, supra, 150 Conn.
App. 305.9 Moreover, ‘‘[t]o provide a meaningful basis
on which to assign responsibility for the payment of
guardian ad litem fees, consideration of the financial
situation of the parties and the statutory criteria should
be made at the time that fees are sought.’’ Lamacchia
v. Chilinsky, 79 Conn. App. 372, 377, 830 A.2d 329
(2003), cert. denied, 271 Conn. 942, 861 A.2d 514 (2004).
Thus, this court has held that a trial court’s anticipatory
allocation of future guardian ad litem fees constitutes
an abuse of discretion where ‘‘the amount, if any, of
future . . . fees and the respective financial capacities
of the parties to pay such fees are purely speculative.’’
Id., 377; see id., 377–78 (reversing order for allocation
of future guardian ad litem fees to be paid 80 percent
by plaintiff and 20 percent by defendant).
The order at issue in the present case provides in
relevant part: ‘‘In the event that a motion is filed and
litigated after unsuccessful resolution with the [guard-
ian ad litem] of the dispute or issue regarding the minor
child, the party who prevails in court shall be reim-
bursed his/her 50 [percent] for the [guardian ad litem]
fees by the other party within one week of the court
order resolving the dispute or issue.’’10 In other words,
the court ordered that 100 percent of any future guard-
ian ad litem fees be paid by whichever party loses in
court following an unsuccessful mediation. As in
Lamacchia v. Chilinsky, supra, 79 Conn. App. 377–78,
the amount of any future fees and the parties’ respective
financial capacities to pay such fees are purely specula-
tive, and there is nothing in the record to guarantee
that if any such guardian ad litem fees become due, the
respective financial situations of the parties will have
remained unchanged. We conclude, therefore, that the
court abused its discretion in issuing this order.11
III
The defendant next claims that the trial court improp-
erly appointed the guardian ad litem without having
complied with certain statutory requirements. More
specifically, the defendant contends that the court vio-
lated (1) § 46b-54 (a)12 by failing to make a specific
finding that appointing a guardian ad litem was in the
child’s best interests, (2) § 46b-12 (a)13 by appointing
Hurwitz as guardian ad litem without giving the parties
an opportunity to choose someone else, and (3) § 46b-
12 (c)14 by failing to issue a subsequent order setting
forth certain statutorily required information regarding
the appointment. In response, the plaintiff argues, inter
alia, that the defendant’s claim is moot as a result of
subsequent, superseding orders issued by the court. We
agree with the plaintiff that this claim is moot.
The following additional procedural history is rele-
vant to this issue. Following the rendering of the June
29, 2017 judgment from which the defendant appeals,
the trial court treated the portion of the judgment relat-
ing to the guardian ad litem as automatically stayed by
operation of Practice Book § 61-11 (c).15 Consequently,
on April 16, 2018, the plaintiff filed a postjudgment
motion again requesting that the court appoint Hurwitz
as the child’s guardian ad litem. The court, Heller, J.,
heard the plaintiff’s motion at short calendar on June
4, 2018.
Following the hearing, on June 11, 2018, the court,
pursuant to § 46b-12 (a), provided the parties with writ-
ten notification of fifteen persons, including Hurwitz,
who the court deemed eligible to serve as guardian ad
litem, and directed the parties to select one person
from this list by June 22, 2018.16 The notification further
advised that ‘‘[i]f the parties cannot agree on a person
by the date specified, the court will select a person
from this list.’’ On June 22, 2018, the parties notified
the court that they had failed to agree on a person to
serve as guardian ad litem. Accordingly, on June 29,
2018, the court issued an initial order appointing Hur-
witz as guardian ad litem for the child.
On July 27, 2018, the defendant filed a motion
requesting that the court issue a subsequent order that
included the information required by § 46b-12 (c). The
court thereafter held a hearing over the course of three
days in October and November, 2018, to take additional
evidence with respect to its June 29, 2018 order appoint-
ing Hurwitz as guardian ad litem. Following the hearing,
on December 17, 2018, the court issued an order finding
that it was in the child’s best interest for Hurwitz to
remain his guardian ad litem and reaffirming its June
29, 2018 order. Also on December 17, 2018, the court
issued an order setting forth the information required
by § 46b-12 (c). The defendant has not appealed from
any of these postjudgment orders.
‘‘Mootness implicates [the] court’s subject matter
jurisdiction and is thus a threshold matter for us to
resolve. . . . It is a well-settled general rule that the
existence of an actual controversy is an essential requi-
site to appellate jurisdiction; it is not the province of
appellate courts to decide moot questions, discon-
nected from the granting of actual relief or from the
determination of which no practical relief can follow.
. . . An actual controversy must exist not only at the
time the appeal is taken, but also throughout the pen-
dency of the appeal. . . . When, during the pendency
of an appeal, events have occurred that preclude an
appellate court from granting any practical relief
through its disposition of the merits, a case has become
moot. . . . Because mootness implicates subject mat-
ter jurisdiction, it presents a question of law over which
our review is plenary.’’ (Internal quotation marks omit-
ted.) Brown v. Brown, 132 Conn. App. 30, 34, 31 A.3d
55 (2011).
In the present case, Judge Heller’s 2018 orders
addressed the appointment of a guardian ad litem for
the parties’ child for a period of time postjudgment, the
same issue decided by Judge Tindill in her June 29,
2017 order. Consequently, Judge Tindill’s order has
been superseded and is no longer in effect.17 Thus, we
conclude that there is no practical relief that this court
can afford the defendant, and, therefore, this portion of
the defendant’s appeal is moot. See Santos v. Morrissey,
127 Conn. App. 602, 605–606, 14 A.3d 1064 (2011)
(appeal from custody and visitation order was moot
because it was superseded by subsequent order
addressing same issues); Kennedy v. Kennedy, 109
Conn. App. 591, 599–600, 952 A.2d 115 (2008) (plaintiff’s
appeal from visitation order rendered moot by subse-
quent order expanding amount of time and circum-
stances under which plaintiff could visit his children).
IV
The defendant next claims that the trial court abused
its discretion when it issued a protective order without
finding that there had been any domestic violence by
either party or that the minor child had been abused
or neglected, and without making it clear when the
protective order would expire or what conduct would
constitute a violation of the order. In short, the defen-
dant equates the court’s protective order with protec-
tive orders in cases of family violence.18 See General
Statutes § 46b-15 (providing for relief from physical
abuse, stalking, or pattern of threatening by family or
household member). The plaintiff argues in response
that the court properly issued a protective order pursu-
ant to our Supreme Court’s decision in Yontef v. Yontef,
185 Conn. 275, 440 A.2d 899 (1981). We agree with
the plaintiff.
‘‘An order of the court will be affirmed if it is legally
correct and finds support in its factual findings. It will
be overturned only on a showing of abuse of the court’s
discretion.’’ Lane v. Lane, 84 Conn. App. 651, 654, 854
A.2d 815 (2004). ‘‘[I]t is axiomatic that a judge has the
ability to issue interim orders. . . . Our Supreme Court
has expressly affirmed the necessity of interim orders in
the best interests of children in dissolution proceedings.
Yontef v. Yontef, [supra, 185 Conn. 293–94].’’ (Citation
omitted.) Lane v. Lane, supra, 654.
In Yontef, our Supreme Court noted that pendente
lite custody orders do not survive the rendition of a
judgment and that the judgment itself, being automati-
cally stayed by operation of Practice Book (1981)
§ 306519 (now § 61-11), is not binding for twenty days.
Yontef v. Yontef, supra, 185 Conn. 291. The court further
noted that, ‘‘[i]n this twenty-day gap period, the parties
arguably may revert to their common law rights, under
which both are entitled, without preference, to take
custody.’’ Id. The court found that such a resolution was
both ‘‘unseemly’’ and ‘‘inconsistent with the concern,
repeatedly enunciated in the statutes and the cases,
for the best interests of the children.’’ Id. The court
therefore advised that ‘‘[a] trial court rendering a judg-
ment in a disputed custody case should . . . consider
entering protective orders sua sponte to ensure an
orderly transition that protects the primary interests of
the children in a continuous, stable custodial place-
ment.’’ Id., 291–92.
More specifically, the court stated: ‘‘In the interest
of minimizing the emotional trauma so often imposed
upon the children of divorce, a trial court should, at or
before the time of its judgment, inquire whether its
custody order is apt to be acceptable to the parties or
is apt to be further litigated upon appeal. If an appeal
appears likely, the court should enter whatever interim
postjudgment order it deems most appropriate, in the
exercise of its broad discretion, taking into consider-
ation the needs of the minor children for continuity,
stability and well-being as well as the need of the parent
who appeals for a fair opportunity fully to present his
or her case. These legitimate needs are not, in all proba-
bility, apt to be protected if dissatisfied parties are able
to intervene unilaterally, without judicial supervision,
to effect changes in custody pending appeal. A court
exercising its equitable jurisdiction with regard to cus-
tody has the duty to assure itself that its judgment will
be implemented equitably to serve the best interests of
the children for the near as well as for the more distant
future.’’ Id., 293–94.
The order at issue in the present case, which was
issued as part of the court’s June 29, 2017 memorandum
of decision, provides: ‘‘The [p]laintiff . . . shall have
sole legal custody of the minor child. Given the likeli-
hood of appeal, the [c]ourt, sua sponte, hereby enters
a protective order pending any potential appeal to
secure the award of sole custody to the [p]laintiff and
parenting time for the [d]efendant. The [c]ourt, in con-
sideration of the child’s best interests, intends this pro-
tective order to offer as smooth as possible a transition
for the child, under the circumstances, in the immediate
postjudgment period.’’
The language of this order makes clear that the trial
court intended it to function as a Yontef-type protective
order meant ‘‘to ensure an orderly transition that pro-
tects the primary interests of the children in a continu-
ous, stable custodial placement.’’ Yontef v. Yontef,
supra, 185 Conn. 291–92. As recognized in Yontef, the
court had the inherent authority to issue such an order
sua sponte to preserve the parties’ rights during the
immediate postjudgment period pending an appeal. See
id., 292 (‘‘[a]lthough there is no express statutory
authority for a trial court to enter postjudgment orders,
this court has recognized the inherent authority of a
court to preserve rights pending an appeal’’). Moreover,
the need for such an order is amply supported by the
record. In its memorandum of decision, the court found
that there is an ‘‘extraordinarily high level of conflict
and mistrust between the [parties],’’ that ‘‘the parties
have been wholly incapable of [resolving such con-
flict],’’ that the parties ‘‘demonstrate a willingness to
disregard court orders and engage in self-help,’’ and that
the parties’ behavior ‘‘has the potential to do irreparable
harm to the minor child.’’ (Emphasis in original.) In
these circumstances, we conclude that the court did
not abuse its discretion in issuing a Yontef protective
order.20
V
The defendant next claims that the court improperly
ordered the parties to enroll the child in private school
through high school and to divide the payments for that
schooling. Specifically, the defendant argues that the
order stating that the child continue in the Whitby
School through eighth grade and that the parties divide
the cost of a private school through twelfth grade is
unsupported by any evidence that private school is in
the child’s best interests or any evidence of the costs
of the Whitby School through the eighth grade or the
cost of a private high school. In response, the plaintiff
argues that, because their financial affidavits revealed
what they were paying for the Whitby School, the court
did, in fact, have evidence of the cost of the school.
We agree with the defendant in part.
In its memorandum of decision, the trial court issued
the following order in regard to the child’s education:
‘‘The minor child shall attend the Whitby School until
he completes the [eighth] grade or the parties’ written
stipulation to change schools is approved and made an
order of the [c]ourt, whichever occurs first. . . . The
parties shall split the cost, beginning the 2017–2018
academic year, of Whitby School or other private school
education 56 [percent] (plaintiff) [and] 44 [percent]
(defendant) through [twelfth] grade.’’
‘‘[C]ourts have the power to direct one or both par-
ents to pay for private schooling, if the circumstances
warrant. It is a matter to be determined in the sound
discretion of the court on consideration of the totality
of the circumstances including the financial ability of
the parties, the availability of public schools, the
schools attended by the children prior to the divorce
and the special needs and general welfare of the chil-
dren.’’ (Internal quotation marks omitted.) Carroll v.
Carroll, 55 Conn. App. 18, 24, 737 A.2d 963 (1999). In
addition, ‘‘[t]he right of the custodial parent to make
educational choices is . . . an insufficient basis,
absent a showing of special need or some other compel-
ling justification, for increasing the support obligation
of the noncustodial parent who genuinely doubts the
value of the program that he [or she] is being asked to
underwrite.’’ (Internal quotation marks omitted.) Id., 25.
We first address the defendant’s argument that there
was no evidence that continuing to send the child to
the Whitby School was appropriate. Both parties in their
proposed claims for relief supported the notion that
the child could continue to attend the Whitby School
or some other private school, but simply disagreed on
who should pay for such education. In addition, the
court had evidence of the cost of the Whitby School
through the parties’ financial affidavits. Moreover, the
court, in its findings, made the following determination:
‘‘The child has adjusted well to his home, school, and
community environments. There is credible evidence
before the [c]ourt that the school in which the child is
currently enrolled has been a stabilizing factor amidst
the parents’ prolonged legal battle. Other than his par-
ents’ conflict, his school environment has been a stead-
fast, reliable element in his short life.’’ Thus, the record
reflects that the court considered the totality of the
circumstances in making its determination of whether
it was appropriate for the child to continue to attend
the Whitby School, including the cost for both parties
as well as the benefit that the school has had on the
child. Accordingly, we conclude that the court did not
abuse its discretion in this regard.
Turning to the defendant’s argument in regard to the
cost of high school, we agree with the defendant that
there was no evidence of the cost of a private high
school or that the parties had ever agreed on the child
attending a private high school. As previously dis-
cussed, the parties’ financial affidavits list only the cost
of the child’s current attendance at the Whitby School.
In addition, although the plaintiff’s amended proposed
claims for relief states that the parties shall equally
pay the cost of private school through high school, the
defendant’s proposed claims for relief only references
payment of the cost of the Whitby School or another
private school if the defendant chooses to enroll the
child in a private school other than the Whitby School.
Moreover, the court’s determination in its findings that
it lacked sufficient evidence to make an educational
support order for higher education or private occupa-
tional school, pursuant to § 46b-56c (c),21 supports the
notion that the court also lacked sufficient evidence to
make an order for private high school. Accordingly, we
conclude that the court abused its discretion in ordering
the parties to divide the cost of private school education
beyond eighth grade.
VI
The defendant next claims that the trial court improp-
erly relied on unsupported net income figures contained
in the child support guidelines worksheet prepared by
the Judicial Branch in issuing its child support orders.
In particular, the defendant claims that the net income
figures relied on by the court in the child support guide-
lines worksheet were different from the figures shown
in the parties’ financial affidavits and trial testimony,
and, therefore, were unsupported by the evidence. In
response, the plaintiff argues that the court may refuse
to consider this issue because the defendant failed to
raise it in her preliminary statement of issues. The plain-
tiff alleges that this failure prejudiced him because he
is now foreclosed from timely filing a motion for articu-
lation to help address his defense of the child support
orders.22 The plaintiff also argues that the court had
sufficient evidence on which to base its child support
orders and that, on the basis of that evidence, the orders
were not clearly erroneous. We agree with the plaintiff
that the court had sufficient evidence on which to base
its child support orders.
We review the trial court’s application of the child
support guidelines under an abuse of discretion stan-
dard. See Tuckman v. Tuckman, 308 Conn. 194, 208,
61 A.3d 449 (2013) (court concluded that trial court had
abused its discretion in awarding child support ‘‘without
determining the net income of the parties, mentioning
or applying the guidelines, or making a specific finding
on the record as to why it was deviating from the guide-
lines’’). General Statutes § 46b-215b (a) provides in rele-
vant part: ‘‘The child support and arrearage guidelines
. . . shall be considered in all determinations of child
support award amounts . . . . In all such determina-
tions, there shall be a rebuttable presumption that the
amount of such awards which resulted from the appli-
cation of such guidelines is the amount to be ordered.
A specific finding on the record that the application of
the guidelines would be inequitable or inappropriate in
a particular case . . . shall be required in order to
rebut the presumption in such case.’’ (Emphasis
added.)
The defendant does not identify any finding that indi-
cates that the court’s application was inequitable or
inappropriate but, rather, alleges that the resulting child
support orders were inconsistent with the evidence in
the record. Contrary to the defendant’s argument, how-
ever, the evidence supports the figures enumerated in
the court’s child support guidelines worksheet. The
defendant testified that she has a gross weekly income
of $2885 and a net weekly income of $1712, which
match the figures listed in her financial affidavit. The
defendant also testified that, in addition to her salary,
she could receive a discretionary bonus as well as a
retention performance based on her production and
subject to her employment agreement, and that she was
due to receive a forgivable loan from her new employer,
which would compensate her for the deferred equity
compensation she gave up when she left her prior
employer. Moreover, the defendant testified that she
deducts $132 per week from her gross weekly income
for deferred compensation or 401 (k), which is also
shown on her financial affidavit. The addition of $132
per week to her gross weekly income of $2885 equals
$3017, which matches the amount set forth in the court’s
child support guidelines worksheet. As such, the net
income figures contained in the child support guidelines
worksheet and relied on by the court are supported in
the record.
Accordingly, we conclude that the trial court did not
abuse its discretion in relying on the child support
guidelines worksheet in issuing its child support orders.
VII
Finally, the defendant claims that by not ordering
the plaintiff to reimburse her for certain expenses she
alleges he should have paid in accordance with an ear-
lier stipulation between them, the trial court, in effect,
granted the plaintiff a retroactive modification of pen-
dente lite orders to pay those expenses. We decline to
review the defendant’s claim.
Unlike the present custody and support action, in a
marital dissolution case, pendente lite orders merge
with the judgment and, therefore, have no vitality post-
judgment. Parrotta v. Parrotta, 119 Conn. App. 472,
479, 988 A.2d 383 (2010). The present case, however,
is not one for a marital dissolution; rather, it is a series
of orders made by the court in response to multiple
filings regarding a range of issues in an ongoing dispute
between these parents.23 Because the court did not rule
on the defendant’s motion for contempt, and it made
no findings or orders in regard to what the defendant
alleged the plaintiff owed, there is no retroactive modifi-
cation from which to appeal. In short, absent a decision
on the motion from the court or an explanation for its
failure to rule on the defendant’s motion, we have no
basis for reviewing the court’s silence.24 In addition,
although we are mindful of the court’s responsibility
to timely respond to the parties’ filings in pending mat-
ters, the avalanche of filings in this matter renders it
nearly impossible for the court to keep pace without a
singular dedication to this matter. Therefore, we decline
to review this claim. See Bento v. Bento, 125 Conn. App.
229, 234–35, 8 A.3d 531 (2010) (court could not review
claim that trial court abused its discretion in awarding
defendant attorney’s fees where not clear from trial
court’s order as to factual and legal basis on which it
awarded such fees).
The appeal is dismissed with respect to the defen-
dant’s third claim, the judgment is reversed with respect
to the court’s orders that (1) the prevailing party in any
postjudgment dispute adjudicated by the court after
unsuccessful mediation with the guardian ad litem be
reimbursed by the other party for his or her share of
the guardian ad litem’s fees and (2) the parties enroll
the child in private school through high school and
share the payments for that schooling, and the case is
remanded with direction to vacate those orders; the
judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
Although much of the postjudgment procedural history is not reflected
in the record provided by the parties, it is well established that ‘‘[this court],
like the trial court, may take judicial notice of files of the Superior Court
in the same or other cases.’’ (Internal quotation marks omitted.) Wasson v.
Wasson, 91 Conn. App. 149, 151 n.1, 881 A.2d 356, cert. denied, 276 Conn.
932, 890 A.2d 574 (2005).
2
The Whitby School is a private, independent school located in Greenwich
providing education for children from preschool through the eighth grade.
3
More specifically, the court found that joint legal custody was ‘‘not in
the minor child’s best interests as the parties have consistently demonstrated
a refusal to effectively coparent.’’
4
In its June 29, 2017 memorandum of decision, the court ordered that
‘‘[t]he parties shall, except in cases of an emergency, only communicate
about their son through OurFamilyWizard . . . the guardian ad litem, or
the coparenting counselor/coordinator, until further order of the court.’’
OurFamilyWizard is a commercial application designed to facilitate commu-
nications between parents who do not live together. See OurFamilyWizard,
available at https://www.ourfamilywizard.com/.
5
The defendant also argues that ‘‘[t]he court’s orders conflate the distinct
roles of mediator and [guardian ad litem] in problematic and impermissible
ways.’’ Specifically, she notes that ‘‘[t]he same individual who mediates a
parenting dispute between the parties is tasked with investigating the dis-
pute, making a recommendation and testifying in support of that recommen-
dation if a matter goes before the court for resolution.’’ Although we believe
that the court’s use of the term ‘‘mediator’’ is inapplicable for the task
assigned to the guardian ad litem to ‘‘mediate the parties dispute’’ because
the classic role of a mediator to facilitate a couple’s negotiations requires
confidentiality and does not permit a mediator to either adjudicate a party’s
disputes or to make recommendations to others beyond the parties, we do
not understand the court’s assignment to be that of a true mediator. Instead,
the court assigned a dual role to the guardian ad litem: to work with the
parties to assist them to reach agreements on disputed areas of parenting
and, if unsuccessful, to report and make recommendations to the court.
Because that dual role would, indeed, violate the tenets of mediation, the
court’s use of the term is misplaced. The assigned function, however, shorn
of its title, is entirely appropriate for a guardian ad litem. In a different
context, where a mediator has been retained by the parties to help them
negotiate the terms of their parenting dispute, we might find this argument
persuasive. In such a situation, the mediator does not have a reporting fun-
ction, and, indeed, to undertake a reporting function in that context may
well violate the terms of a mediation agreement or the mediator’s own pro-
fessional responsibilities. See Academy of Professional Family Mediators,
‘‘Standards of Practice for Professional Family Mediators,’’ (2014), available
at https://apfmnet.org/standards-practice-professional-family-mediators/
(last visited October 17, 2019); see also ‘‘Model Standards of Practice for
Family and Divorce Mediation,’’ available at https://www.americanbar.org/
content/dam/aba/migrated/family/reports/mediation.authcheckdam.pdf
(last vistited October 17, 2019). However, where a guardian ad litem has
been appointed by the court and, in that capacity, has a duty to give evidence
to the court, the guardian ad litem does not serve as a mediator but has a
hybrid function to assist the parties in dispute to resolve issues and, when
required, to provide information regarding a child’s best interests to the
court. In that context, and with the full understanding of the parties of the
contours of the guardian ad litem’s function, we see no inconsistency
between the reporting function of the guardian ad litem and her role in
attempting to assist the parties to resolve issues relating to the child.
6
General Statutes § 46b-12a provides in relevant part: ‘‘The Judicial Branch
shall develop a publication that informs parties to a family relations matter
about the roles and responsibilities of counsel for a minor child and the
guardian ad litem for a minor child when such persons are appointed by
the court to serve in a family relations matter. . . . Such publication shall
be available to the public in hard copy and be accessible electronically on
the Internet web site of the Judicial Branch.’’
7
We recognize that there may be tension between the duty to encourage
settlement of disputes and the proscription in the ‘‘Code of Conduct for
Counsel for the Minor Child and Guardian Ad Litem’’ (code of conduct)
that a guardian ad litem may only communicate directly to litigants repre-
sented by counsel with the permission of counsel. See Judicial Branch, State
of Connecticut, ‘‘Code of Conduct for Counsel for the Minor Child and
Guardian Ad Litem,’’ available at https://www.jud.ct.gov//family/
GAL_code.pdf (last visited October 17, 2019). On appeal, however, we need
not reach that issue because neither party has asserted that the court’s
orders in this regard conflict with the code of conduct adopted by the
Judicial Branch. In the future, we believe that it would be appropriate for
the court, in issuing its directives to guardians ad litem to couch them in
terms that comport with the code of conduct.
8
The defendant argues more specifically that, ‘‘[e]ssentially, the [guardian
ad litem] is deemed by prior court order to be the correct arbiter and one
of the parties will automatically be sanctioned for failing to accede to
the [guardian ad litem’s] recommendations, without court approval and
regardless of whether the [guardian ad litem’s] position was even correct.
. . . The [guardian ad litem’s] inability to successfully mediate with the
parties determines whether sanctions occur and the court neither reviews
nor approves such sanctions.’’ (Emphasis omitted.) According to the defen-
dant, this amounts to an improper delegation of the court’s authority to
sanction the parties.
Contrary to the defendant’s suggestion, the court’s order does not
empower the guardian ad litem to resolve any disputes between the parties.
The guardian ad litem’s role is limited to working with the parties to help
them reach agreements. In this sense, the role has some parallels to that
of a mediator, except that it also includes a reporting role which, as we
have noted, is inconsistent with the role of one strictly engaged as a mediator.
Mediation is ‘‘[a] method of nonbinding dispute resolution involving a neu-
tral third party who tries to help the disputing parties reach a mutually
agreeable solution . . . .’’ (Emphasis added.) Black’s Law Dictionary (11th
Ed. 2019). In other words, the role of a mediator is not to impose his or
her recommended resolution on the parties but to assist the parties in
resolving the dispute themselves. Thus, to the extent that the court’s order
in the present case properly may be construed as providing for automatic
sanctions, it is the parties’ failure to agree with each other that triggers the
sanction and not their failure to follow the guardian ad litem’s recommenda-
tions. We, therefore, disagree with the defendant’s underlying assumption
that the practical effect of the court’s order is to penalize the parties for
failing to agree with the guardian ad litem. It is a sanction simply for failure
to reach an accord. As subsequently noted in this opinion, however, we find
the sanction problematic for reasons relating to the court’s authority to
award fees generally.
9
‘‘The appointment of a guardian ad litem, specifically authorized by
General Statutes § 45a-132 (a), is governed by the same standards as those
pertaining to an attorney for minor children, and the standards regarding
payment of fees are the same for both categories.’’ Greenan v. Greenan,
supra, 150 Conn. App. 306 n.12; see also Lamacchia v. Chilinsky, 79 Conn.
App. 372, 375 n.3, 830 A.2d 329 (2003) (‘‘[w]e note that although . . . § 46b-
62 addresses only the issue of attorney’s fees, we previously have recognized
that the same criteria properly informs the court’s exercise of discretion
regarding fees for a guardian ad litem appointed for a minor child in a
dissolution of marriage action or in an action seeking a modification of
custody and visitation’’ [emphasis omitted]), cert. denied, 271 Conn. 942,
861 A.2d 514 (2004).
10
The defendant does not challenge the propriety of the court’s baseline
fifty-fifty allocation of payment of guardian ad litem fees.
11
We note that, pursuant to General Statutes § 46b-87, the trial court is
empowered to award attorney’s fees to the prevailing party in a contempt
proceeding without balancing the parties’ respective financial abilities. See
Larson v. Larson, 138 Conn. App. 272, 277–78, 51 A.3d 411, cert. denied,
307 Conn. 930, 55 A.3d 769 (2012). Similarly, the court has the inherent
authority to assess attorney’s fees against a losing party where the party’s
claim was entirely without color and the party acted in bad faith. See Berzins
v. Berzins, 306 Conn. 651, 661–63, 51 A.3d 941 (2012). Even if we were to
assume that these same rules apply to guardian ad litem fees, the order at
issue in the present case does not limit its application to circumstances in
which the losing party is found in contempt, acted in bad faith, or asserted
a claim that was entirely without color.
12
General Statutes § 46b-54 (a) provides in relevant part: ‘‘The court may
appoint . . . a guardian ad litem for any minor child or children of either
or both parties at any time after the return day of a complaint under section
46b-45, if the court deems it to be in the best interests of the child or
children. . . .’’
13
General Statutes § 46b-12 (a) provides in relevant part: ‘‘[P]rior to
appointing . . . a guardian ad litem for any minor child in a family relations
matter, the court shall provide the parties to the matter with written notifica-
tion of fifteen persons who the court has determined eligible to serve as
. . . a guardian ad litem for any minor child in such matter. . . . Not later
than two weeks after the date on which the court provides such written
notification, the parties shall provide written notification to the court of the
name of the person who the parties have selected to serve as . . . a guardian
ad litem. In the event that the parties (A) fail to timely provide the court
with the name of the person to serve as . . . guardian ad litem, or (B)
cannot agree on the name of the person to serve as . . . guardian ad litem,
the court shall appoint . . . a guardian ad litem for the minor child by
selecting one person from the fifteen names provided to the parties.’’
14
General Statutes § 46b-12 (c) provides in relevant part: ‘‘Not later than
twenty-one days following the date on which the court enters an initial
order appointing . . . a guardian ad litem for any minor child pursuant to
this section, the court shall enter a subsequent order that includes the
following information: (1) The specific nature of the work that is to be
undertaken by such . . . guardian ad litem; (2) the date on which the
appointment of such . . . guardian ad litem is to end, provided such end
date may be extended for good cause shown pursuant to an order of the
court; (3) the deadline for such . . . guardian ad litem to report back to
the court concerning the work undertaken; (4) the fee schedule of such
. . . guardian ad litem that shall minimally set forth (A) the amount of the
retainer, (B) the hourly rate to be charged, (C) the apportionment of the
retainer and hourly fees between the parties, and (D) if applicable, all
provisions related to the calculation of fees on a sliding-scale basis; and (5)
a proposed schedule of periodic court review of the work undertaken by
such . . . guardian ad litem and the fees charged by such . . . guardian
ad litem. . . . Not later than thirty days after the entry of a final judgment
in a family relations matter involving . . . a guardian ad litem for a minor
child, such . . . guardian ad litem shall file with the court an affidavit that
sets forth (A) the case name, (B) the case docket number, and (C) the
hourly fee charged, total number of hours billed, expenses billed and the
total amount charged by such . . . guardian ad litem. . . .’’
15
Practice Book § 61-11 (c) provides in relevant part: ‘‘Unless otherwise
ordered, no automatic stay shall apply to orders of relief from physical abuse
pursuant to General Statutes § 46b-15, to orders for exclusive possession
of a residence pursuant to General Statutes §§ 46b-81 or 46b-83 or to orders
of periodic alimony, support, custody or visitation in family matters brought
pursuant to chapter 25, or to any decision of the Superior Court in an appeal
of a final determination of a support order by a family support magistrate
brought pursuant to chapter 25a, or to any later modification of such
orders. . . .’’
Ostensibly, the trial court determined that an order appointing a guardian
ad litem does not constitute an order for support, custody, or visitation. We
need not address the correctness of this determination. The important point
is that the court treated the order appointing the guardian ad litem as stayed.
16
The court provided this notification using a form published by the
Judicial Branch, JD-FM-229, titled ‘‘Notice to Parties of Persons Eligible to
Serve as Counsel or Guardian Ad Litem for Minor Child or Children and
Notice to Court of Person Selected.’’
17
In reaching this conclusion, we do not conclude that Judge Tindill’s
order that the guardian ad litem ‘‘mediate’’ the parties’ disputes was rendered
moot by any subsequent order because the record does not reflect either
that the order was nullified by Judge Heller or that it was in any other
way vitiated.
18
The defendant, however, cites to statutes providing for criminal protec-
tive orders. See General Statutes §§ 46b-38c (providing for criminal protec-
tive orders in cases of family violence), 53a-40e (authorizing court to issue
standing criminal protective orders for specified duration against persons
convicted of family violence crimes), and 54-1k (providing for criminal
protective orders in cases of stalking, harassment, sexual assault, and risk
of injury to or impairing morals of child). Her reliance on these statutes is
misplaced, as criminal protective orders are not within the ambit of the family
division of the Superior Court. See General Statutes § 46b-1 (enumerating
matters within jurisdiction of Superior Court deemed to be family rela-
tions matters).
19
Practice Book (1981) § 3065 provided: ‘‘In all actions, except criminal
actions and actions concerning child neglect brought pursuant to chapter
37, proceedings to enforce or carry out the judgment shall be stayed for
twenty days; if the time in which to take an appeal is extended under [§]
3097 such proceedings shall be stayed until the time to take an appeal has
expired; if an appeal is filed, such proceedings shall be stayed until the final
determination of the cause; and, if the case goes to judgment in the supreme
court, until ten days after the decision is announced; but if the judge who
tried the case is of the opinion that the extension is sought or the appeal
is taken only for delay or that the due administration of justice requires
him to do so, he may at any time, upon motion and hearing, order that the
stay be terminated. This section shall not apply to orders of a court rendered
on an application for a prejudgment remedy nor shall it apply to dispositions
in delinquency matters. In appeals from such matters there shall be no stay
unless the judge making the disposition grants one.’’
20
In her reply brief, the defendant appears to argue that the order in the
present case is improper because Yontef protective orders are no longer
necessary in light of the 1986 amendments to Practice Book § 61-11, which
resolved the problem that the type of protective order approved of in Yontef
was meant to address. Although we agree that Yontef-type protective orders
may be unnecessary in some circumstances, we disagree that this renders
such orders improper.
As our Supreme Court has clarified, its ‘‘concern in Yontef was to ensure
an orderly transition [from prejudgment status to postjudgment status] that
protects the primary interests of the children in a continuous, stable custodial
placement during the period in which the enforcement of the judgment is
stayed.’’ (Emphasis added; internal quotation marks omitted.) Garrison v.
Garrison, 190 Conn. 173, 182, 460 A.2d 945 (1983). In 1986, however, Practice
Book § 61-11 was amended to exclude custody and visitation orders from
operation of the automatic stay of execution provision. See W. Horton &
K. Bartschi, Connecticut Practice Series: Connecticut Rules of Appellate
Procedure (2018–2019 Ed.) § 61-11, pp. 110–11. Such orders, once issued,
are now immediately enforceable, and, thus, there is no longer a ‘‘gap period’’
between pendente lite custody orders and the final orders. See Yontef v.
Yontef, supra, 185 Conn. 291. Thus, we agree with the defendant that Yontef-
type protective orders may be superfluous in most cases involving issues
of custody and visitation. Cf. O’Neill v. O’Neill, 13 Conn. App. 300, 304, 536
A.2d 978 (issuing Yontef protective order requiring that physical custody of
child remain with defendant until trial court, on remand, has had opportunity
to address issue of custody at new hearing), cert. denied, 207 Conn. 806,
540 A.2d 374 (1988). Nevertheless, the standard for reversing a trial court’s
order is abuse of discretion, and not that the order was unnecessary. More-
over, the trial court has inherent equitable authority to protect the integrity
of its judgment. Carpenter v. Montanaro, 52 Conn. App. 55, 58, 725 A.2d
390 (1999).
21
General Statutes § 46b-56c (c) provides: ‘‘The court may not enter an
educational support order pursuant to this section unless the court finds
as a matter of fact that it is more likely than not that the parents would
have provided support to the child for higher education or private occupa-
tional school if the family were intact. After making such finding, the court,
in determining whether to enter an educational support order, shall consider
all relevant circumstances, including: (1) The parents’ income, assets and
other obligations, including obligations to other dependents; (2) the child’s
need for support to attend an institution of higher education or private
occupational school considering the child’s assets and the child’s ability to
earn income; (3) the availability of financial aid from other sources, including
grants and loans; (4) the reasonableness of the higher education to be
funded considering the child’s academic record and the financial resources
available; (5) the child’s preparation for, aptitude for and commitment to
higher education; and (6) evidence, if any, of the institution of higher educa-
tion or private occupational school the child would attend.’’
22
We disagree and conclude that we may consider this issue. See Bouchard
v. Deep River, 155 Conn. App. 490, 496, 110 A.3d 484 (2015) (‘‘although the
trial court did not reach a dispositive issue and the defendant did not raise
that issue in a preliminary statement of issues as an alternative ground for
affirmance pursuant to Practice Book § 63-4 [a] [1], a court can still affirm
the judgment of a trial court so long as the plaintiff is not prejudiced or
unfairly surprised by the consideration of the issue’’ [footnote omitted]);
Pelletier Mechanical Services, LLC v. G. & W. Management, Inc., 162 Conn.
App. 294, 302, 131 A.3d 1189 (court considered issue not raised by trial
court or included in plaintiff’s preliminary statement of issues because it
presented question of law, record was adequate for review, and defendant
not prejudiced because it had time to file reply brief), cert. denied, 320
Conn. 932, 134 A.3d 622 (2016).
Although whether the trial court’s application of the child support guide-
lines is supported by the record is a question of fact, the record is adequate
for review, the issue was briefed by both parties, and consideration of the
issue would not prejudice the plaintiff. Moreover, the language of Practice
Book § 63-4 (a) (1), which provides in relevant part that ‘‘[w]henever the
failure to identify an issue in a preliminary statement of issues prejudices
an opposing party, the court may refuse to consider such issue,’’ is clearly
permissive. (Emphasis added.)
23
Indeed, the docket sheet for this matter in the Superior Court reflects
that, since the present appeal was commenced, the parties have filed in
excess of forty-five filings as of May, 2019.
24
The defendant did not file a motion for reargument or reconsideration
regarding her motion for contempt.