Lopes v. Ferrari

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YISIAH LOPES v. MARYANNA FERRARI
(AC 40988)
Keller, Bright and Moll, Js.
Syllabus
The plaintiff appealed to this court from the judgment of the trial court
granting the parties joint legal custody of their minor child and giving
the defendant final decision-making authority when the parties fail to
agree on a disputed matter concerning the child. Held:
1. The trial court did not abuse its discretion when it denied the plaintiff’s
motion for the court to order the defendant to undergo a psychological
evaluation; it was clear from the record that the plaintiff was engaged
in a fishing expedition for which he was seeking the court’s assistance,
as the plaintiff specifically argued to the court that he was looking for
an investigation but he set forth no facts to substantiate any of his
concerns, other than the fact that the defendant was taking a daily
medication that had been prescribed to her, which was not a basis for
the court to order a psychological evaluation of the defendant.
2. The plaintiff could not prevail on his claim that the trial court’s custody
determination did not comply with the applicable statutes (§§ 46b-56
and 46b-56a [b]) in that the court failed to state that its orders were in
the best interests of the child and the court’s judgment essentially gave
the defendant sole custody, against the presumption that joint custody
is in the best interests of the child: under the plain language of § 46b-
56 (b), the court was not required to assign any specific weight to any
statutory fact and had to articulate the basis of its decision, and the
court provided the parties with a ten page memorandum of decision,
in which it specifically stated that it listened to the parties and witnesses,
reviewed all the documents, and considered all of the statutory criteria,
and set forth extensive orders regarding, inter alia, custody of the child,
and although the court did not state specifically that it had considered
the child’s best interests or that it was entering orders that were in
the child’s best interests, it was clear from the court’s decision that it
considered the statute and the child’s best interests, and, thereafter,
rendered orders that it believed were in the child’s best interests; more-
over, if the plaintiff believed the court needed to further articulate its
reasoning or best interests determination, he had the burden to request
that the court do so, which he failed to do, and although the plaintiff
contended that, by giving the defendant final decision-making authority,
the court essentially gave her sole custody, such a contention was
contrary to our case law holding that final decision-making authority
in one parent is distinct from sole legal custody.
Argued January 4—officially released March 12, 2019
Procedural History
Application for custody of the parties’ minor child,
and for other relief, brought to the Superior Court in the
judicial district of Waterbury where the court, Ficeto,
J., denied the plaintiff’s motion for the defendant to
undergo a psychological evaluation; thereafter, the mat-
ter was tried to the court, Hon. Lloyd Cutsumpas, judge
trial referee; judgment granting, inter alia, joint legal
custody to the parties; thereafter, the court granted the
plaintiff’s motion to reargue and reconsider but denied
the relief requested therein, and the plaintiff appealed
to this court. Affirmed.
Dale R. Funk, for the appellant (plaintiff).
Michael K. Conway, for the appellee (defendant).
Opinion
BRIGHT, J. The plaintiff, Yisiah Lopes, appeals from
the judgment of the trial court granting the parties joint
custody of their minor child and giving the defendant,
Maryanna Ferrari, final decision-making authority when
the parties fail to agree on a disputed matter concerning
the child. On appeal, the plaintiff claims that (1) due
to the court’s denial of his motion requesting the court
to order the defendant to undergo a psychological evalu-
ation, the evidence was insufficient for the court to
make an accurate assessment of the child’s best inter-
ests, and (2) the court’s custody determination, as set
forth in its memorandum of decision, fails to comply
with General Statutes §§ 46b-56 and 46b-56a (b). We
affirm the judgment of the trial court.
The following facts and procedural history are taken
from the court’s memorandum of decision or are part
of the record. The parties, who are not married to each
other, share a minor child. Approximately one week
after the child’s birth, the plaintiff filed an application
for custody. The court referred the matter to the Family
Relations Division (family relations) for a comprehen-
sive evaluation.1 The resulting report, thereafter, was
made part of the record.2 The court conducted an evi-
dentiary hearing over the course of three days, and,
after consideration of the statutory criteria, the court,
in relevant part, awarded joint custody to the parties,
with primary physical custody to the defendant. The
court further ordered that the parties were to consult
with each other on major decisions related to the child,
but that the defendant had final decision-making author-
ity when the parties were in disagreement. The plaintiff
filed a motion to reargue and reconsider the court’s
determination. The court granted the motion, but it
denied the relief requested. This appeal followed.
I
The plaintiff first claims that due to the court’s denial
of his motion for a court-ordered psychological evalua-
tion of the defendant, the evidence was insufficient
for the court to make an accurate assessment of the
child’s best interests.3 He argues that he expressed to
the court his concern that the defendant was using
prescription medication, namely, Xanax,4 on a daily
basis, and he requested, to no avail, that the court order
her to undergo a psychological evaluation. He contends
that the court improperly denied his motion. We dis-
agree.
The following additional facts are relevant. On August
11, 2016, the plaintiff filed a ‘‘motion for psychological
exam,’’ requesting, pursuant to General Statutes § 46b-
6,5 that the court order the defendant to undergo a
psychological examination. There were no factual alle-
gations in the motion, and the only ground alleged by
the plaintiff was that ‘‘he has concerns about [the defen-
dant’s] mental stability, and therefore the safety and
well-being of the minor child while in the care of [the
defendant].’’ On October 26, 2016, the court heard argu-
ment on the plaintiff’s motion.6 During argument, the
plaintiff told the court that he had concerns about the
defendant’s use of Xanax and her mental stability. He
also expressed that he would be willing to pay for the
defendant’s examination. When the court explained that
a psychological evaluation normally is not ordered
solely because someone is taking a prescription medica-
tion, the plaintiff stated: ‘‘I understand that, but being
a concerned parent, my understanding is if you’re taking
something on a daily basis, I have concerns that why
do you need to take it daily. And that’s all I’m trying
to do is just investigate, research. And I feel with the
psychological evaluation, it would basically outline that
situation, and we’ll be done with it and move forward.
That’s what’s holding everything up.’’ Shortly thereafter,
the court stated that the plaintiff would have an oppor-
tunity to express his concerns to family relations, and
that if family relations saw any problems with the defen-
dant’s ability to parent, it would relay those concerns to
the court. The court then denied the plaintiff’s motion,
without prejudice, on the ground that it heard nothing
in argument that justified ordering the defendant to
undergo a psychological examination. The court further
noted that family relations could refer the matter back
to the court to consider ordering such an examination
if, when preparing its comprehensive evaluation, it saw
a reason to do so.7
We review the court’s denial of a motion for a physical
or psychological examination under an abuse of discre-
tion standard. See Tevolini v. Tevolini, 66 Conn. App.
16, 32, 783 A.2d 1157 (2001) (standard of review for
denial of motion for physical examination in family
matter is one of abuse of discretion); In re Daniel C.,
63 Conn. App. 339, 365, 776 A.2d 487 (2001) (standard
of review for denial of motion for psychological exami-
nation in termination of parental rights case is one of
abuse of discretion). ‘‘In reviewing claims that the trial
court abused its discretion, great weight is given to the
trial court’s decision and every reasonable presumption
is given in favor of its correctness. . . . We will reverse
the trial court’s ruling only if it could not reasonably
conclude as it did.’’ (Internal quotation marks omitted.)
Tevolini v. Tevolini, supra, 32.
It is clear from a review of the plaintiff’s motion and
his oral argument before the trial court that the plaintiff
was engaged in nothing short of a fishing expedition
for which he was seeking the court’s assistance. Indeed,
he specifically argued to the court that he was looking
for an investigation; he set forth no facts to substantiate
any concerns, with the exception of the fact that the
defendant was taking a daily prescription medication
that, in fact, had been prescribed to her. On this basis,
it was not an abuse of discretion for the court to deny
the plaintiff’s motion.
II
The plaintiff next claims that the court’s custody
determination, as set forth in its July 28, 2017 memoran-
dum of decision, does not comply with §§ 46b-56 and
46b-56a (b). The plaintiff argues that (1) the court failed
to state that its orders were in the best interests of the
child, and (2) the court’s judgment essentially gives the
defendant sole custody, despite awarding the parties
joint custody. We disagree with both arguments.
A
The plaintiff argues that the court’s custody decision
does not comply with § 46b-56 because the court failed
to articulate a basis for its decision by stating merely
that it considered the best interests of the child. The
plaintiff recognizes that the court is not required to
assign any particular weight to any statutory factor, but
he contends that the court specifically must find and
articulate why its orders serve the child’s best interests.
We are not persuaded.
‘‘We utilize an abuse of discretion standard in
reviewing orders regarding custody and visitation rights
. . . . In exercising its discretion, the court should con-
sider the rights and wishes of the parents and may hear
the recommendations of professionals in the family
relations field, but the court must ultimately be con-
trolled by the welfare of the particular child. . . . This
involves weighing all the facts and circumstances of
the family situation. Each case is unique. The task is
sensitive and delicate, and involves the most difficult
and agonizing decision that a trial judge must make.
. . . The trial court has the great advantage of hearing
the witnesses and in observing their demeanor and atti-
tude to aid in judging the credibility of testimony. . . .
Great weight is given to the conclusions of the trial
court which had the opportunity to observe directly the
parties and the witnesses. . . . A conclusion of the trial
court must be allowed to stand if it is reasonably sup-
ported by the relevant subordinate facts found and does
not violate law, logic or reason. . . . [T]he authority to
exercise the judicial discretion under the circumstances
revealed by the finding is not conferred upon this court,
but upon the trial court, and . . . we are not privileged
to usurp that authority or to substitute ourselves for
the trial court. . . . A mere difference of opinion or
judgment cannot justify our intervention. Nothing short
of a conviction that the action of the trial court is one
which discloses a clear abuse of discretion can warrant
our interference.’’ (Citations omitted; internal quotation
marks omitted.) Zilkha v. Zilkha, 180 Conn. App. 143,
170–71, 183 A.3d 64, cert. denied, 328 Conn. 937, 183
A.3d 1175 (2018).
‘‘Subsection (a) of § 46b-56 authorizes the Superior
Court in any action involving the custody or care of
minor children . . . to ‘make or modify any proper
order regarding the custody, care, education, visitation
and support of the children . . . according to its best
judgment upon the facts of the case and subject to
such conditions and limitations as it deems equitable.’
Subsection (b) of § 46b-56 provides in relevant part: ‘In
making or modifying any order as provided in subsec-
tion (a) of this section, the rights and responsibilities
of both parents shall be considered and the court shall
enter orders accordingly that serve the best interests
of the child and provide the child with the active and
consistent involvement of both parents commensurate
with their abilities and interests. . . .’ Subsection (b)
contains a nonexhaustive list of possible orders, ending
with a catchall provision permitting ‘any other custody
arrangements as the court may determine to be in the
best interests of the child.’ Subsection (c) of § 46b-56
provides in relevant part that ‘[i]n making or modifying
any order as provided in subsections (a) and (b) of this
section, the court shall consider the best interests of
the child, and in doing so may consider, but shall not
be limited to, one or more of [sixteen enumerated]
factors . . . . The court is not required to assign any
weight to any of the factors that it considers, but shall
articulate the basis for its decision.’ ’’ (Footnote omit-
ted.) Id., 168–70.
Under the plain language of § 46b-56 (b), the court
is not required to assign any specific weight to any
statutory factor, but it must articulate the basis of its
decision. In this case, the court provided the parties
with a ten page memorandum of decision. It specifically
stated that it had listened to the parties and the wit-
nesses, reviewed all the documents, and considered
all of the statutory criteria. The court then set forth
extensive orders regarding, inter alia, custody, visita-
tion, holiday access, child support, education support,
medical insurance, and income tax. Although the court
did not state specifically that it had considered the
child’s best interests, or that it was entering orders that
were in the child’s best interests, it is clear from the
court’s decision that it considered the statute and the
child’s best interests and, thereafter, rendered orders
that it believed were in the child’s best interests. In
fact, there is nothing in the court’s memorandum of
decision to which the plaintiff points that would lead
us to conclude otherwise.
Furthermore, if the plaintiff believes that the court
needed to further articulate its reasoning or best inter-
ests determination, it was his burden to request that
the court do so. See Practice Book §§ 61-10 and 66-5.
Where the plaintiff believes that the court’s findings
were not detailed sufficiently, ‘‘our caselaw clearly
directs that it is up to the plaintiff to request more
detailed findings by means of an articulation. See Blum
v. Blum, 109 Conn. App. 316, 331, 951 A.2d 587 ([w]hen
the decision of the trial court does not make the factual
predicates of its findings clear, we will, in the absence
of a motion for articulation, assume that the trial court
acted properly . . .), cert. denied, 289 Conn. 929, 958
A.2d 157 (2008).’’ (Internal quotation marks omitted.)
Hirschfeld v. Machinist, 131 Conn. App. 364, 370–71
n.5, 27 A.3d 395, cert. denied, 302 Conn. 947, 30 A.3d
1 (2011). Accordingly, we are not persuaded by the
plaintiff’s argument.
B
The plaintiff next claims that the court’s custody deci-
sion does not comply with § 46b-56a (b) because it
effectively awarded sole custody to the defendant with-
out setting forth the reason or basis for departing from
the statutory presumption in favor of joint custody.
Specifically, he argues that by giving the defendant final
decision-making authority, the court’s judgment essen-
tially gives the defendant sole custody, with no explana-
tion for doing so. We disagree with the underlying
premise of the plaintiff’s claim that the court’s order
regarding final decision-making authority constituted
an award of sole custody.
‘‘There shall be a presumption, affecting the burden
of proof, that joint custody is in the best interests of a
minor child where the parents have agreed to an award
of joint custody or so agree in open court at a hearing
for the purpose of determining the custody of the minor
child . . . . General Statutes § 46b-56a (b). This sec-
tion does not mandate joint custody; it only creates a
presumption that joint custody would be in the best
interests of a minor child under certain circumstances.
It is still for the trial court to decide whether joint
custody has been agreed to by the parties. . . .
Whether the parties have agreed to such an award is a
question for the trial court.’’ (Citation omitted; internal
quotation marks omitted.) Baronio v. Stubbs, 178 Conn.
App. 769, 776–77, 177 A.3d 600 (2017).
In the present case, both parties agreed to joint legal
custody. The defendant, however, also requested pri-
mary physical custody and final decision-making
authority.8 It is clear that the court awarded joint legal
custody of the child to the parties, and that it also
awarded to the defendant primary physical custody
and final decision-making authority on major issues.
Although the plaintiff contends that by giving the defen-
dant final decision-making authority, the court, essen-
tially, gave her sole custody, without setting forth its
reasons for doing so, such a contention is contrary to
our case law.
As this court previously has held: ‘‘[F]inal decision
making authority in one parent is distinct from sole
legal custody. See Desai v. Desai, 119 Conn. App. 224,
230, 987 A.2d 362 (2010) (noting Appellate Court’s rejec-
tion of argument that grant of ultimate decision-making
authority to one parent is, in effect, order of sole cus-
tody); Tabackman v. Tabackman, 25 Conn. App. 366,
368–69, 593 A.2d 526 (1991) (rejecting argument that
award of joint legal custody with ultimate decision-
making authority in one parent is the functional equiva-
lent of an award of sole custody).’’ (Internal quotation
marks omitted.) Baronio v. Stubbs, supra, 178 Conn.
App. 778 n.3. Accordingly, the plaintiff’s claim has no
merit.
The judgment is affirmed.
In this opinion the other judges concurred.
1
A comprehensive evaluation is ‘‘an in-depth, nonconfidential assessment
of the family system by the Family Relations Counselor. The information
gathered by the counselor, the assessment of the family, and the resulting
recommended parenting plan is shared with the parents and attorneys. This
recommendation may be used to form the basis of an agreement. At the
conclusion of the process, a report with recommendations is filed with the
court.’’ State of Connecticut Judicial Branch, Child Custody and Visitation
for Unmarried Parents, available at https://www.jud.ct.gov/forms/grouped/
family/cc_visitationUnmarriedParents.htm (last visited March 7, 2019).
2
The comprehensive report was prepared by Family Relations Counselor
Michael B. Elder. Rather than set forth Elder’s findings in detail, which
are concerning, we will say only that he found the defendant to be ‘‘very
transparent,’’ while concluding that the plaintiff ‘‘has not been as forth-
coming.’’
3
Although the plaintiff sets forth his statement of this issue as one concern-
ing the sufficiency of the evidence, his claim more accurately is characterized
as one challenging the propriety of the court’s denial of his motion for a
psychological examination. Accordingly, we will consider it as such.
4
Xanax is a benzodiazepine used to treat anxiety and panic disorders.
See Physician’s Desk Reference (71st Ed. 2016) p. S-981.
5
General Statutes § 46b-6 provides: ‘‘In any pending family relations matter
the court or any judge may cause an investigation to be made with respect
to any circumstance of the matter which may be helpful or material or
relevant to a proper disposition of the case. Such investigation may include
an examination of the parentage and surroundings of any child, his age,
habits and history, inquiry into the home conditions, habits and character
of his parents or guardians and evaluation of his mental or physical condition.
In any action for dissolution of marriage, legal separation or annulment of
marriage such investigation may include an examination into the age, habits
and history of the parties, the causes of marital discord and the financial
ability of the parties to furnish support to either spouse or any depen-
dent child.’’
6
The court also heard argument on other motions that had been filed by
the parties.
7
The comprehensive evaluation report discusses the plaintiff’s concerns
about the defendant’s use of Xanax, as well as the communications the
family relations counselor had with the defendant’s doctor’s office about
the defendant’s use of the drug. The report reflects that the defendant’s
doctor had no reason to believe that the defendant was misusing the drug.
The report did not suggest to the court that it order a psychological examina-
tion of the defendant, and the plaintiff never renewed his motion for one.
8
The plaintiff, directing this court to the defendant’s proposed orders and
his own proposed orders, argues that ‘‘both parents agreed to joint custody.
. . . However, the court . . . ordered: ‘In the event of a dispute over any
issue involving the child after consultation, the [defendant’s] decision shall
be controlling.’ . . . In this case, ultimate authority to make all decisions
regarding ‘any issue involving the child’ was given to [the defendant] by the
[court] . . . . The court failed to articulate any reasons for rebutting the
presumption in favor of joint custody.’’
We find the plaintiff’s argument misleading. Although both parties agreed
to joint legal custody, the defendant very clearly set forth in her proposed
orders that she was requesting primary physical custody and final decision-
making authority regarding major decisions.