Sargent v. Sargent ( 2015 )

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MARK SARGENT v. PAMELA SARGENT
(AC 36102)
Beach, Mullins and Schaller, Js.
Argued December 10, 2014—officially released March 24, 2015
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. Stanley Novack, judge trial
referee [dissolution judgment]; Emons, J.
[postjudgment orders].)
Norman A. Pattis, for the appellant (plaintiff).
Opinion
BEACH, J. The plaintiff, Mark Sargent, appeals from
postdissolution orders entered by the trial court during
a status conference. The plaintiff argues that the court
denied him due process by not affording him notice
and an opportunity to be heard at a postdissolution
status conference. We dismiss the appeal as moot.
The parties’ marriage was dissolved in August, 2012,
following an uncontested hearing. The dissolution judg-
ment incorporated by reference the parties’ separation
agreement, which provided that the plaintiff had sole
legal custody of the parties’ three minor children, that
the children were to reside primarily with the plaintiff,
and that the plaintiff was to make decisions related to
school, medical and religious issues, and extracurricu-
lar activities.
At a postdissolution status conference held on August
29, 2013, the court, Emons, J., issued orders relating
to the guardian ad litem for the minor children, Joan
Oppenheim, a doctor of psychology, that are the subject
of this appeal.1 One of the issues raised at the confer-
ence was the plaintiff’s denying Oppenheim private
access to the children. Oppenheim reported at the sta-
tus conference that after one of the minor children had
‘‘run away’’ from the plaintiff’s home, Oppenheim had
wanted to speak to the child privately. She had arranged
for the child to be seen by an evaluation psychiatrist
because his regular therapist was on vacation. Oppen-
heim explained that the plaintiff had not allowed private
access to the child and had declined to allow the child
to be seen by the evaluation psychiatrist. Oppenheim
further stated that when the defendant, Pamela Sargent,
had taken the children to a meeting, the plaintiff also
arrived and told Oppenheim that she could not see the
children in his absence, even though Oppenheim had
told the plaintiff several times that she would not con-
duct a session with both parents present.
The court told the plaintiff’s attorney to go into the
hallway and ‘‘have a heart-to-heart with [the plaintiff]
because I will make orders in this case that could be
anywhere on the spectrum from an admonishment to
removing custody. Okay, so please tell him how
important it is to cooperate with the court and with
all the treaters and evaluators for the benefit of his
children.’’ Following two recesses and discussions of
other issues, the court brought up the issue of ‘‘individu-
als . . . being denied access, especially Dr. Oppen-
heim.’’ The plaintiff’s cocounsel, Attorney Kevin Murray
Smith, stated that no agreement had been reached, and
that the plaintiff would not agree to private sessions
between the children and the guardian ad litem until
he was given direction by Smith’s cocounsel, Attorney
Norman A. Pattis, who was not present at the hearing
because he was on trial elsewhere. The court advised
Smith to notify Pattis that if the plaintiff wanted to
confer only with Pattis, then Pattis was to be present
at all hearings. The court ordered the plaintiff ‘‘to allow
the [guardian ad litem] and every therapist in this case
to do their job which involves the children without him
being present unless he is invited.’’
The plaintiff’s counsel raised the issue of the defen-
dant’s automobile accident; her car reportedly had hit
a tree while the children were in the car. He said that
‘‘perhaps [there would be] some changes to things as
a result of that.’’ Attorney Gary Cohen, the attorney for
the guardian ad litem, stated: ‘‘This may be an appro-
priate time for me to ask the court to enter an order
that [the plaintiff] may not contact or be in the presence
of my client without my being present. There’s no rea-
son for me to give reasons, but my client is represented
by counsel. She chooses not to engage with [the plain-
tiff] unless I am present during that engagement.’’ The
court responded by ordering the plaintiff not to contact
Oppenheim without Cohen’s being present.
Later in the hearing, the defendant’s counsel stated
that after one of the parties’ children had run away
from home, Oppenheim had made an appointment for
that child to see a particular psychiatrist and that the
plaintiff did not bring the child to that particular psychi-
atrist, but rather to a different mental health profes-
sional. The defendant’s counsel requested that the child
continue treatment with the psychiatrist selected by
Oppenheim. The court ordered that the child continue
treatment with the psychiatrist selected by Oppenheim
‘‘until or if the experts, not [the plaintiff] but the experts
who have been in the midst of all the therapy and all
the evaluations, suggest that that’s where he belongs.’’2
Prior to the August 29, 2013 status conference, the
plaintiff had filed a motion to dismiss Oppenheim as
the guardian ad litem for the minor children because
of bias. Oppenheim was the guardian ad litem for the
minor children at the time of the August 29, 2013 status
conference. She later was removed as the guardian ad
litem for the minor children, and on November 25, 2013,
the court, Munro, J., appointed Attorney Jill Plancher
to be the guardian ad litem for the minor children. In
December, 2013, the court ordered Oppenheim to turn
over her complete file in the matter to Plancher. The
plaintiff’s appeal is only from orders issued at the
August 29, 2013 status conference.
On appeal, the plaintiff focuses on the August 29, 2013
orders of the court that (1) Oppenheim be permitted to
meet with the children privately and (2) the plaintiff
could not contact Oppenheim directly without first
going through Cohen. These orders will be addressed
in turn.
I
The plaintiff claims that the order of the court to
allow the guardian ad litem to meet with the children
privately ‘‘was raised abruptly in the middle of the hear-
ing by counsel for the guardian and was granted without
any opportunity to be heard.’’3 He contends that the
court denied him his right to due process by issuing ad
hoc orders without first giving notice of the issues to
be addressed at the conference, thereby depriving the
plaintiff of any meaningful opportunity to be heard.
Because Oppenheim was removed as guardian ad
litem for the minor children, we consider whether the
court’s order pertaining to Oppenheim is moot. ‘‘Moot-
ness 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 requisite to appellate
jurisdiction; it is not the province of appellate courts
to decide moot questions, disconnected from the grant-
ing of actual relief or from the determination of which
no practical relief can follow. . . . Because mootness
implicates subject matter jurisdiction, it presents a
question of law over which our review is plenary.’’
(Internal quotation marks omitted.) Wells Fargo Bank,
NA v. Cornelius, 131 Conn. App. 216, 219–20, 26 A.3d
700, cert. denied, 302 Conn. 946, 30 A.3d 1 (2011). ‘‘Moot-
ness presents a circumstance wherein the issue before
the court has been resolved or had lost its significance
because of a change in the condition of affairs between
the parties.’’ (Internal quotation marks omitted.) State
v. Begley, 122 Conn. App. 546, 550–51, 2 A.3d 1 (2010).
‘‘A case becomes moot when due to intervening circum-
stances a controversy between the parties no longer
exists.’’ (Internal quotation marks omitted.) Waterbury
Hospital v. Connecticut Health Care Associates, 186
Conn. 247, 252, 440 A.2d 310 (1982).
The plaintiff’s claim regarding the court’s order to
allow Oppenheim and the children’s therapists to see
the children without the plaintiff’s being present is
moot. This order pertained only to Oppenheim’s role
as guardian ad litem. Oppenheim subsequently was
removed as the guardian ad litem for the minor children,
and a new guardian ad litem was appointed.
The plaintiff argues in his brief that there were valid
reasons why he wanted to attend meetings Oppenheim
had with the children and children’s therapists and that
‘‘[t]he source of antagonism between the [guardian ad
litem] and the [plaintiff] was never considered by the
court until a different judge, months later, heard from
both the [guardian ad litem] and the [plaintiff] at an
evidentiary hearing. When that hearing ended, the
[guardian ad litem] was removed . . . .’’ The order
appealed from related to a disagreement between
Oppenheim and the plaintiff. At the August, 2013 hear-
ing, Oppenheim explained to the court that she would
not host a meeting with both parents present, and that
the plaintiff declined to allow a meeting among Oppen-
heim, the defendant and the children without his being
present. Prior to the court’s order, the defendant’s coun-
sel stated that no agreement had been reached regard-
ing this issue and that the plaintiff, at least as of the
time of the hearing, would not agree to private sessions
between the children and the guardian ad litem.
After Oppenheim was removed as guardian ad litem
for the minor children, the court, Munro, J., on Decem-
ber 18, 2013, ordered that the new guardian ad litem
notify the plaintiff of any communications between her
and any treaters. It further ordered that the plaintiff
‘‘may listen to any communications but not partici-
pate.’’4 The court’s order relating to Oppenheim was,
then, no longer effective and was supplanted by the
December, 2013 order, which permitted the plaintiff to
be notified of and to attend meetings. Accordingly, no
practical relief can be granted as to the order
appealed from.
II
At oral argument before this court, the plaintiff con-
tended that the order preventing contact with Oppen-
heim was not moot because he and Oppenheim may
have unfinished business regarding payment. It is appar-
ent from the record that at the time of the August, 2013
hearing there was tension between the plaintiff and
Oppenheim. At that hearing, the plaintiff requested that
Oppenheim be removed as guardian ad litem for the
minor children. The court denied the request. Following
the hearing, however, the plaintiff succeeded in remov-
ing Oppenheim as guardian ad litem for the minor chil-
dren. Oppenheim’s counsel requested at the August,
2013 hearing that the plaintiff not contact Oppenheim
directly, but rather contact Oppenheim only through
counsel, and the court so ordered. The ‘‘no contact’’
order, in the context of the hearing, related to Oppen-
heim in her capacity as the guardian ad litem and Cohen
in his capacity as the attorney for the guardian ad litem.
The order had nothing to do with as yet nonexistent
financial business in the event that Oppenheim should
at some point be removed as guardian ad litem. Once
the relation of parent and guardian ad litem was extin-
guished, orders relating to the context of the relation-
ship are of no effect and controversy regarding the
orders is, then, moot.
The plaintiff further argues that the practice of issuing
orders at status conferences without proper notice to
the parties is pervasive and likely to recur, and, thus,
the issue is not moot, but, rather, is capable of repetition
but incapable of review. The record in this case includes
the transcript of the August 29, 2013 hearing and does
not reflect any such continuing practice, and we have
no other record reflecting such practices.5 Accordingly,
we conclude that the issue presented is moot.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The defendant, Pamela Sargent, who had recently been in a car accident,
did not attend the conference; her attorney, however, was present.
2
The court’s additional orders included: terminating the appellate stay in
the event of an appeal; permitting the children to attend a birthday party
at Citi Field in the New York City borough of Queens; denying the plaintiff’s
request to remove Oppenheim; denying the plaintiff’s request to remove
Cohen; requiring the parents to ensure that the children attend every appoint-
ment; and requiring the defendant to let the plaintiff know where the children
were and to provide a telephone number where they could be reached
during her parenting time.
3
The plaintiff notes that he is not seeking appellate review of the substance
of the interim custody orders themselves, but rather argues that the court
failed to give him notice and a reasonable opportunity to be heard.
4
The court stated: ‘‘The court orders Dr. Oppenheim [to] turn over her
complete file (including any electronic communications), [of] what she pro-
cured in her investigation and all of her notes as well to [the new guardian
ad litem] as soon as possible. The parties may receive a copy of the file, at
their expense if any. Each of the children’s providers, whether they be
medical, mental health or educational, shall provide the [guardian ad litem]
with their records regarding treatment and communications and make them-
selves open to communication with the [guardian ad litem]. This order
includes but is not limited to Dr. Deborah Gruen and Dr. Elizabeth Baldwin
and education professionals, who have treated or worked with and are
treating and working with the children. When the [guardian ad litem] is
going to have communications with any treaters (other than scheduling
communications) she shall notify the [plaintiff]. The [plaintiff] may listen
to any communications but not participate. If the [plaintiff] is not available
when the communications are scheduled, then the communications shall
still take place.’’
5
We of course recognize and endorse the principle that hearings and
conferences must comport with due process.