Azia v. DiLascia

64 Conn. App. 540

780 A.2d 992

GREGORY AZIA v. PAULA DILASCIA

(AC 20279)

Appellate Court of Connecticut.

Argued January 19, 2001.

Officially released July 31, 2001.

Spear, Dranginis and Hennessy, JS. James H. Lee, with whom, on the brief, was Kirk A. Bennett, for the appellant (defendant).

Gaetano Ferro, for the appellee (plaintiff).

Renee Marie Houle, with whom, on the brief, was Patricia H. Modzelewski, for the minor child.

Opinion

SPEAR, J.

In this dissolution of marriage action, the defendant, Paula DiLascia, appeals from the trial court's judgment awarding primary physical custody of the parties' minor child to the plaintiff father, Gregory Azia. The defendant claims that in determining who should have primary physical custody of the minor child, the court improperly (1) failed to consider the preference of the child, (2) failed to consider the Ireland factors¹ with respect to the defendant's relocating to New Jersey, (3) burdened her constitutional right to interstate travel, (4) found material facts without evidence to support them and (5) took judicial notice of ethical rules without giving notice to the parties. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The parties were married in September, 1989. A child who was born on May 6, 1991. The plaintiff is a board certified general surgeon, who maintains a solo practice in New London. The defendant has advanced degrees in pharmacology and law.² During the marriage, the plaintiff attempted to persuade the defendant to work full-time in a pharmaceutical or legal career, but she chose not to do so. The defendant, instead, stayed home as a full-time mother and established a close bond with her child. When the child reached school age, the parties decided to send her to a private school where the defendant served as a volunteer several days a week. The child flourished and enjoyed the school both academically and socially.

In April, 1998, the defendant's mother was diagnosed with cancer. The defendant's mother lived in New Jersey, where the defendant was born and raised. In May, the plaintiff and the defendant agreed that the defendant and their daughter would go to New Jersey so that the defendant could care for her mother. The defendant enrolled the child in school in New Jersey for the child to finish her last month of the school year. The plaintiff visited them in New Jersey on the weekends.

The separation exacerbated the strain that already had existed in the parties' marriage. When the defendant informed the plaintiff that she had enrolled their child for another school year in New Jersey, the plaintiff objected because the parties previously had reenrolled the child in her Connecticut school for the 1998-1999 school year. Thereafter, the plaintiff consulted counsel and decided to file for dissolution of marriage. The plaintiff also decided to keep the child with him in New London when she visited him for a holiday in September, 1998, and the child again began attending school in Connecticut. At the time of the trial, the defendant worked as a part-time office manager in New Jersey.

On October 16, 1998, the parties reached a comprehensive agreement, which the court approved. The agreement provided for joint legal and physical custody of the child, as well as the weekly, holiday and vacation visitation rights of each parent. The order contemplated that the child would remain in the New London area.³ On November 5, 1998, the defendant filed a motion with the court to refer the case to family relations for a custody and visitation study. She sought sole physical custody of their child because she had decided to move to New Jersey.⁴ The court granted the motion. Both parents were evaluated by Robyne Diller, a psychologist who had administered a battery of tests and had conducted clinical interviews of each parent between September and December, 1998. In addition, the psychologist interviewed the child and observed her in separate interaction sessions with each parent. Diller's findings were believed to be valid and, therefore, useful to the court. Diller concluded that the plaintiff had social skills problems that were treatable in therapy. The plaintiff had sought therapy prior to filing for dissolution of marriage because he was concerned about his marital problems and his inability to see the child, who was then living in New Jersey. In 1998, the plaintiff attended therapy weekly, then once every other week, before he stopped for two to three months. In January, 1999, he commenced therapy again, which he attended two out of every three weeks up to the date of trial.

By contrast, Diller's findings with respect to the defendant were cause for concern by the court. Diller concluded that the defendant had problems of enmeshment⁵ with her daughter, which required immediate, intensive psychotherapy. The defendant did not seek counseling after receiving Diller's recommendation even though she had five months to do so.⁶

The defendant claimed that she could not afford psychotherapy. The court, however, found that if the defendant had been committed to psychotherapy, she had the financial means to do so by reallocating her discretionary spending and by increasing her work hours. The court further found that the defendant did not have a commitment to engage in psychotherapy to confront and to deal with the issues identified by Diller.

Without consulting the plaintiff, the defendant started the child in psychotherapy in November, 1998, with Patricia Hanley-Kallen, the special master psychologist from the Early Intervention Program that the family had participated in a month earlier.⁷ Hanley-Kallen failed to consider the possible conflict of interest in treating the child after her position as a special master. After treating the child nine times in the course of a year, she recommended that the child live with the defendant based on the child's preference to live with her mother and the defendant's historical role in the child's life. The court accorded Hanley-Kallen's testimony little weight because of her failure to recognize any ethical considerations in accepting the child as a patient after being a special master and her failure to realize the potential psychological effects of asking the child her preference.

The court dissolved the marriage and ordered joint legal custody with primary physical custody to the plaintiff. This appeal followed.

I

The defendant first claims that the court improperly failed to consider the child's desire to live with her mother. Specifically, the defendant argues that the court improperly discounted the child's preference without finding that the child was not of a sufficient age or was incapable of forming an intelligent preference. We disagree.

"An appellate court will not disturb a trial court's orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented.... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action." (Citation omitted; internal quotation marks omitted.) Costa v. Costa, 57 Conn. App. 165, 168, 752 A.2d 1106 (2000).

Our Supreme Court has stated: "In making a determination of custody ... the trial court is bound to consider the child's present best interests and not what would have been in her best interests at some previous time.... [T]he court must ... take account of the parents' past behavior, since it must evaluate their present and future parenting ability and the consistency of their parenting for the purpose of determining which parent will better foster the children's growth, development and well-being." (Citation omitted; internal quotation marks omitted.) Blake v. Blake, 207 Conn. 217, 224-25, 541 A.2d 1201 (1988). "[W]hether the child's preferences and feelings as to custody and visitation are a significant factor in the court's ultimate determination of the best interest of the child will necessarily depend on all the facts of the particular case, including the child's age and ability intelligently to form and express those preferences and feelings." Gennarini v. Gennarini, 2 Conn. App. 132, 137, 477 A.2d 674 (1984); see also General Statutes 46b-56 (b).⁸ "Section 46b-56 (b) does not require that the trial court award custody to whomever the child wishes; it requires only that the court take the child's wishes into consideration.... The ultimate concern of the trial court is to decide what is in the best interests of the child.... Although the child's wish is one factor for the court to consider in making that decision, it is certainly not the only one." (Citations omitted.) Knock v. Knock, 224 Conn. 776, 788-89, 621 A.2d 267 (1993). "[E]ven when [a child's preference] is elicited, the information may be of questionable accuracy. A child caught up in the maelstrom of family strife may produce, to the psychologically untrained eye and ear, distorted and thus misleading images not only of the child's parents but of the child's own feelings; and those feelings themselves may be transient." Gennarini v. Gennarini, supra, 137.

The defendant argues that the court improperly refused to consider the child's preference, but refers to nothing in the record to support this claim. She simply argues that the court's excoriation of Hanley-Kallen's testimony was a denial of consideration of the child's preference.⁹ We do not agree. On the basis of our review of the court's memorandum of decision, we conclude that the court did consider the child's preference for custody. The child told Diller that if she could arrange things the way that she wanted, she would have her parents change houses so that she could live primarily with her mother, but still attend the school that she preferred....