Martowska v. White

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MATTHEW M. MARTOWSKA v. KATHRYN R. WHITE
(AC 35208)
Robinson, Sheldon and Harper, Js.*
Argued October 10, 2013—officially released April 8, 2014
(Appeal from Superior Court, judicial district of
Hartford, Epstein, J. [judgment]; Carbonneau, J.
[postjudgment orders]; Westbrook, J. [motion to
enforce; motion to release psychological evaluations].)
Matthew M. Martowska, self-represented, the appel-
lant (plaintiff).
Kerry A. Tarpey, for the appellee (defendant).
Opinion
HARPER, J. The plaintiff, Matthew M. Martowska,
has been engaged in ongoing postjudgment litigation
with the defendant, Kathryn R. White, with respect to
visitation with and custody of their minor child. In this
appeal, the plaintiff claims that the trial court erred by
denying his motion to enforce the visitation orders set
forth in its memorandum of decision dated October 9,
2007, and in ordering the release of a psychological
evaluation of the plaintiff to which he submitted pursu-
ant to subsequent temporary visitation orders that he
claims have expired and become moot. We disagree
and, thus, affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. On October 19, 2005, the plaintiff
filed a custody application requesting, inter alia, joint
custody of his and the defendant’s minor child, and an
order establishing a visitation schedule with the child.
Attorney Barry F. Armata was appointed as the guardian
ad litem for the minor child. During the next two years,
the parties reached several agreements—subsequently
entered as court orders—regarding custody and visita-
tion. In 2007, the parties sought final custody and visita-
tion orders from the court.
On October 9, 2007, after a bench trial, the court
issued a memorandum of decision that included visita-
tion and custody orders (October, 2007 decision). The
court therein ordered that the parties share joint legal
custody, but that the child reside primarily with the
defendant. In addition, the court ordered that visitation
take place in accordance with a detailed visitation
schedule contained therein. The court also ordered:
‘‘[N]o motion for modification will be entertained unless
the filing party has procured the granting of a request for
leave to modify under Practice Book [§] 25-26 . . . .’’1
For more than two years following the October, 2007
decision, neither party filed any motions in this case.
In February, 2010, however, the plaintiff was involved
in a domestic incident with a third party that resulted
in his arrest and the issuance of a protective order
that prevented him from seeing the parties’ child.2 The
protective order later was modified on June 28, 2011,
to allow him visitation in accordance with the October,
2007 decision. The plaintiff subsequently filed a motion
for contempt, alleging that the defendant had refused
to give him access to the child. The parties then entered
into a series of stipulated agreements, all of which were
later entered as court orders.
On August 30, 2011, the parties entered into a further
agreement whereby the plaintiff would have supervised
visitation.3 The court accepted this agreement and made
it an order of the court. The plaintiff engaged in super-
vised visitation pursuant to this agreement.4 While such
supervised visits still were taking place, the plaintiff
filed another motion for contempt on January 13, 2012,
in which he argued that the defendant was not following
the visitation orders in the October, 2007 decision. In
that motion, the plaintiff requested that the visitation
orders in the October, 2007 decision be enforced. The
court disposed of this motion by entering a February
7, 2012 agreement of the parties as a court order, in
which the parties agreed to undergo psychological eval-
uations ‘‘for custodial/parenting plan purposes.’’5
After almost one year of supervised visitation pursu-
ant to the latter agreement, Armata determined that
supervised visits were no longer necessary and submit-
ted proposed orders to the court, which were later
adopted as ‘‘temporary’’ court orders on August 13, 2012
(temporary orders). The temporary orders established
a new visitation schedule under which the plaintiff’s
future visitation would increase every four weeks until,
ultimately, the child was permitted to stay with the
plaintiff overnight. The final step of the new schedule
provided that ‘‘[f]ollowing those [four weeks of] over-
night [visits], and after completion of the psychological
evaluation . . . previously ordered by this court, the
parties will then get into an alternating weekends sched-
ule, plus additional time as arranged.’’ The temporary
orders also provided that there would be ‘‘an evidentiary
hearing in September, 2012, after the results of [the
psychological] evaluation[s] have been received to
determine if any changes to the parenting plan need to
be made.’’ Both parties underwent psychological evalu-
ations, but the plaintiff refused to release the results
of his evaluation, citing privacy concerns. As a result,
the psychological evaluations never were released to
the parties.6
On October 25, 2012, the plaintiff filed a motion to
enforce the October, 2007 decision, reasoning that the
temporary orders had ‘‘expired’’ because the four weeks
of overnight visits had been completed without inci-
dent, and thus the psychological examinations therein
referenced had become moot.7 By this motion, the plain-
tiff made a second request that the parties return to
the visitation and custody plan outlined in the October,
2007 decision. At the November 7, 2012 hearing on the
motion to enforce, the plaintiff also asserted that any
modifications to the original October, 2007 decision
were invalid because neither party sought leave of the
court, and, as a result, the visitation schedule in the
October, 2007 decision should be enforced. The court
denied the plaintiff’s motion to enforce, noting that the
October, 2007 decision ‘‘is still valid . . . but we’re not
going back to the parenting and custody plan that is in
place there.’’8 Thereafter, following a hearing on Janu-
ary 16, 2013, the court granted the defendant’s motion
to release the plaintiff’s psychological evaluation over
the plaintiff’s objection and ordered the plaintiff to
release his evaluation. That order was stayed pending
this appeal.9 On appeal, the plaintiff claims that (1)
the court improperly denied his motion to enforce the
visitation schedule in the October, 2007 decision
because there were never any valid modifications made
to that schedule, and (2) his psychological evaluation
is either moot or irrelevant, and therefore the court
erred by ordering that it be released.10
I
The plaintiff claims that the court erred in denying his
motion to enforce the October, 2007 decision because
there were no valid modifications to the visitation
schedule contained in the October, 2007 decision. The
plaintiff asserts that because neither party sought leave
of the court to file a motion to modify pursuant to
Practice Book § 25-26 (g), as required by the October,
2007 decision, all modifications to the original visitation
schedule are invalid. Therefore, the plaintiff argues,
absent any valid modifications, the visitation schedule
detailed in the October, 2007 decision should be
enforced. The plaintiff, however, never filed timely
appeals from the modification orders that he now chal-
lenges, and therefore his claim fails.
The plaintiff’s argument that the court erred in deny-
ing his motion to enforce the visitation schedule con-
tained in the October, 2007 decision rests on the validity
of the modifications that the court ordered subsequent
to that decision. After the protective order was lifted,
the court ordered two modifications to the visitation
schedule contained in the October, 2007 decision. First,
on August 30, 2011, the court ordered supervised visita-
tion. Second, on August 13, 2012, the court entered
the temporary orders. Both of these orders were final
judgments, from which the plaintiff had twenty days
to appeal. Brennan v. Brennan, 85 Conn. App. 172,
177–178, 857 A.2d 927 (order temporarily modifying
custody final judgment), cert. denied, 271 Conn. 944,
861 A.2d 1177 (2004); but see Strobel v. Strobel, 73 Conn.
App. 428, 434–37, 808 A.3d 698 (‘‘temporary’’ order with-
out hearing akin to emergency order and not final judg-
ment), cert. denied, 262 Conn. 928, 814 A.2d 383 (2002);
Practice Book § 63-1 (appeal must be filed within
twenty days of date notice of decision given). The plain-
tiff did not appeal from either of these orders. It was
two months later, on October 25, 2012, when the plain-
tiff first claimed that these modifications were invalid
on the ground that neither party had sought leave of
the court. By then, the time to appeal these previous
modifications had expired. See Practice Book § 63-1.
As a result, the plaintiff cannot now mount a collateral
challenge to these modifications through his motion to
enforce.11 We conclude that the court did not err in
denying the plaintiff’s motion to enforce the visitation
orders in the October, 2007 decision, and that the tem-
porary orders, which require the plaintiff to submit to
a psychological evaluation for the court’s review, cur-
rently govern visitation.12
II
The plaintiff next claims that his psychological evalu-
ation is either moot or irrelevant, and, therefore, it was
improper for the court to order the evaluation
released.13 In support of his claim, the plaintiff relies
on a line of cases applying General Statutes § 46b-6,
the statutory basis for the court’s authority to order
psychological evaluations in pending family matters.
We are not persuaded.
The plaintiff argues that the issue is controlled by
Janik v. Janik, 61 Conn. App. 175, 180, 763 A.2d 65(2000), cert. denied, 255 Conn. 940, 768 A.2d 949 (2001),
and Savage v. Savage, 25 Conn. App. 693, 698–99, 701,
596 A.2d 23 (1991), in which we concluded that the trial
courts had abused their discretion when they ordered
the parties to submit to postjudgment psychological
evaluations. In both cases, the psychological evalua-
tions were ordered after the courts had determined a
final visitation schedule. Janik v. Janik, supra, 180;
Savage v. Savage, supra, 700–701. Those courts, there-
fore, abused their discretion by ordering those evalua-
tions when there were no longer any motions or matters
pending. Janik v. Janik, supra, 180; Savage v. Savage,
supra, 701. The court ordered the psychological evalua-
tion in the present action, however, for purposes of
determining the final visitation schedule, unlike in
Janik and Savage. See Savage v. Savage, supra, 700
(statutes authorize psychological evaluation in pending
family matter because helpful to disposition of case).
In any event, because the claim raised here is not
whether the psychological evaluation was properly
ordered, but whether the court properly ordered its
release, Janik and Savage are inapposite.
The plaintiff also relies on Ruggiero v. Ruggiero, 76
Conn. App. 338, 819 A.2d 864 (2003), but again his reli-
ance is misplaced. The plaintiff in Ruggiero argued that,
pursuant to Savage and Janik, the court improperly
ordered a psychological evaluation when there was no
family matter pending. Id., 343. In Ruggiero, however,
we never reached the merits of the plaintiff’s argument.
Id., 345 (‘‘[i]n the present case, we do not need to
address the issue of whether the matter was still a
pending family matter when the court ordered the plain-
tiff to undergo a psychiatric evaluation’’). Instead, we
concluded that the claim had become moot because
the parties had agreed to a visitation schedule that had
been entered as an order of the court, and therefore
no actual controversy continued to exist. Id., 346–47
(‘‘[i]t 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
granting of actual relief or from the determination of
which no practical relief can follow’’ [internal quotation
marks omitted]).
The facts of this case do not implicate mootness, as
in Ruggiero. An actual controversy continues to exist in
the present case, namely, establishing a final visitation
schedule that is in the best interest of the child. The
fact that the court was able to issue the temporary
orders without considering the plaintiff’s psychological
evaluation does not render that evaluation moot as the
plaintiff argues. Mootness does not depend on the rele-
vance or necessity of the evaluation; it depends on
whether an actual controversy exists between the par-
ties. Id., 347. Here, a controversy continues to exist,
and therefore the plaintiff’s arguments based on Rugge-
rio fail. We are not persuaded that the plaintiff’s psycho-
logical evaluation was either moot or irrelevant, and
therefore conclude that the court did not abuse its dis-
cretion by ordering the evaluation released.14
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of the judges reflects their seniority status on this court as
of the date of oral argument.
1
Practice Book § 25-26 (g) provides in relevant part: ‘‘[U]pon or after
entry of a judgment or final order of custody and/or visitation . . . the
judicial authority may order that any further motion for modification of a
final custody or visitation order shall be appended with a request for leave
to file such motion . . . .’’
2
The criminal charges filed against the plaintiff in relation to this incident
were dismissed.
3
The plaintiff indicates that, although he felt that the October, 2007 deci-
sion still governed visitation, he entered into the August 30, 2011 agreement
‘‘in an effort to provide the [defendant] an opportunity to regain comfort
and reassurance’’ after the domestic incident.
4
Reports from the supervised visitation program indicated that the staff
had no concerns regarding the plaintiff: ‘‘This worker has always found [the
plaintiff] to be polite, pleasant, and much focused on his visits. It should
be noted that [the plaintiff] continues to come in very prepared for his visits
with healthy meals, appropriate games, and demonstrates a very loving
parent-child relationship.’’
5
In a subsequent July 10, 2012 agreement, the parties substituted another
doctor for the one named in the original February 7, 2012 agreement. This
subsequent agreement did not purport to affect the purpose of the evalua-
tions, which was to establish a visitation plan in response to the plaintiff’s
motion for contempt.
6
Although not directly released to the parties, the evaluations have been
filed with the court. Due to the plaintiff’s objections and this pending appeal,
however, the court and the parties have refrained from reviewing them.
7
Prior to this time, the plaintiff was represented by counsel. The plaintiff
filed this motion as a self-represented party and continues to be self-repre-
sented during this appeal.
8
The plaintiff avers that the court erroneously denied his motion to enforce
based on a substantial change in circumstances. The plaintiff’s motion was
substantively a motion to modify visitation, and the court considered it as
such. The plaintiff’s motion asked the court to modify the existing visitation
scheduled under the temporary orders by enforcing the visitation schedule
contained in the October, 2007 decision. The court recognized that the
October, 2007 decision was not the visitation schedule in place, and that
‘‘the standard [to modify visitation] is that there be a substantial change in
circumstances.’’ This is the appropriate standard for modifying visitation,
and therefore the plaintiff’s argument is without merit. See In re Anthony
E., 96 Conn. App. 414, 418, 900 A.2d 594, cert. denied, 280 Conn. 914, 908
A.2d 535 (2006).
9
The plaintiff initially appealed the court’s denial of his motion to enforce.
He then amended his appeal to include the trial court’s order releasing his
psychological evaluation.
10
The plaintiff also claims that, because his psychological evaluation is
either moot or irrelevant, the court improperly denied his motion to enforce.
This claim is based on the plaintiff’s view that the temporary orders were
a ‘‘transition back to the original parenting plan’’ contained in the October,
2007 decision. The plaintiff’s logic appears to be that the visitation schedule
in the October, 2007 decision would have been enforced after two events
occurred pursuant to the temporary orders: (1) he completed the series of
four week visitation schedules, and (2) the court considered his psychologi-
cal evaluation. The plaintiff reasons that, because his psychological evalua-
tion is either moot or irrelevant, there is only one remaining condition
precedent to ‘‘transitioning’’ back to the visitation schedule in the October,
2007 decision—completing the series of four week visitation schedules.
Moreover, the plaintiff argues that because he has completed the series of
visitation schedules the court should ‘‘transition back to the original parent-
ing plan’’ and enforce the visitation schedule in the October, 2007 decision.
The plaintiff’s reasoning is flawed.
An original custody order remains undisturbed until a subsequent modifi-
cation is granted, and the court alters custody. Savage v. Savage, 25 Conn.
App. 693, 701, 596 A.2d 23 (1991). Once the court orders a modification,
the previous order no longer governs custody and the new order remains
in effect until the court orders a subsequent modification. See id. In the
present case, the visitation schedule in the October, 2007 decision was
modified several times, and therefore the original schedule in the October,
2007 decision no longer governed visitation. The last modification that the
court ordered was the temporary orders, meaning the temporary orders
remain in effect until subsequently modified. Contrary to the plaintiff’s claim,
the parties cannot simply ‘‘transition’’ from the temporary orders to the
original visitation schedule contained in the October, 2007 decision. Any
future visitation schedule that differs from the one contained in the tempo-
rary orders requires the court to order a modification—the parties cannot
automatically ‘‘transition’’ to a different visitation schedule, or return to the
original schedule, merely because the plaintiff’s court-ordered psychological
evaluation is purportedly moot or irrelevant. For these reasons, the plaintiff’s
claim that the relevancy or mootness of his psychological evaluation is
dispositive with respect to the court’s ruling on his motion to enforce is
unavailing.
11
The plaintiff also asserts that the court ‘‘fail[ed] to make a finding on
a material change in circumstances before modifying the original order
. . . .’’ This claim also is untimely for the reasons stated previously.
12
Alternatively, even if the plaintiff had filed a timely appeal, he is not
entitled to relief because he is unable to show harm from the defendant’s
failure to request leave to seek modification of the existing visitation orders.
Relief is only granted ‘‘if one or more of [the court’s] rulings were harmful
. . . [meaning] the ruling would likely affect the result.’’ (Citations omitted;
internal quotation marks omitted.) Borkowski v. Borkowski, 228 Conn. 729,
747, 638 A.2d 1060 (1994). Practice Book § 25-26 (g) requires the moving
party to request leave to file a motion to modify and ‘‘demonstrate probable
cause that grounds exist for the motion to be granted.’’ After this showing,
the court considers the motion to modify on its merits, which requires proof
of a material change in circumstances by a preponderance of the evidence.
In re Anthony E., 96 Conn. App. 414, 418, 900 A.2d 594, cert. denied, 280
Conn. 914, 908 A.2d 535 (2006). By virtue of the fact that the court was
satisfied that the parties met the higher burden of proof and ordered the
modification, it follows logically that there was probable cause to file the
motion to modify. See State v. Mitchell, 200 Conn. 323, 339, 512 A.2d 140(1986) (Shea, J., concurring). The court’s failure to first require that the
parties request leave to file the motion pursuant to the October, 2007 decision
was not harmful because it had no effect on the ultimate result. See Borkow-
ski v. Borkowski, supra, 747. Without harm, there can be no relief. See id.
13
The court’s order releasing the psychological evaluation for the purpose
of determining a visitation schedule is a final judgment. See Dutkiewicz v.
Dutkiewicz, 289 Conn. 362, 369 n.8, 597 A.2d 821 (2008); Madigan v. Madi-
gan, 224 Conn. 749, 754–55, 57, 620 A.2d 1276 (1993). An improper release
of the evaluation and its subsequent use in fashioning a visitation schedule
‘‘may interfere with [the plaintiff’s] custodial rights over a significant period
in a manner that cannot be redressed at a later time. A lost opportunity to
spend significant time with one’s child is not recoverable. . . . [A]n immedi-
ate appeal of the court order in this case is the only reasonable method of
ensuring that the important rights surrounding the parent-child relationship
are adequately protected.’’ (Citation omitted; internal quotation marks omit-
ted.) Taff v. Bettcher, 243 Conn. 380, 386–87, 703 A.2d 759 (1997).
14
We note that the plaintiff alleges that the defendant ‘‘refus[ed] to grant
visitation in order to leverage the release of psychological evaluations.’’
After today, the evaluation can be released. According to the temporary
orders, all that remains before final visitation orders can be entered is an
evidentiary hearing regarding the visitation schedule. We would be remiss,
however, if we failed to mention that it is entirely possible that, prior to an
evidentiary hearing, the parties could reach a mutual agreement regarding
visitation, as they have done on multiple previous occasions.