Gainty v. Infanting

306 A.3d 1171

222 Conn.App. 785

222 Conn.App. 785

Susan F. GAINTY

v.Michael INFANTING

(AC 45506)

Appellate Court of Connecticut.

Argued October 17, 2023

Officially Released December 12, 2023

John F. Morris, Hartford, for the appellant (defendant).

Steven R. Dembo, Hartford, with whom were P. Jo Anne Burgh, Glastonbury, and, on the brief, Seth J. Conant, for the appellee (plaintiff).

Bright, C. J., and Alvord and Cradle, Js.

ALVORD, J.

₇₈₈The defendant, Michael Infantino, appeals from the judgment of the trial court ordering support pursuant to General Statutes § 46b-84 (c),¹ which authorizes the court, inter alia, to issue orders of support for a child who has a mental disability until ₇₈₉the child attains the age of twenty-one. On appeal, the defendant claims that the court (1) improperly ordered him to reimburse the plaintiff, Susan F. Gainty, for one half of the medical and special schooling expenditures the plaintiff had made on behalf of the parties’ child, (2) exceeded its authority in issuing its support order, and (8) abused its discretion in awarding appellate attorney’s fees to the plaintiff. We affirm the judgment of the court.

This matter originated in 2001 as an action to establish the paternity of the parties’ two children, a son, born in 1998, and a daughter, born in 2001 (daughter). In May, 2001, the trial court, Prestley, J., entered judgments of paternity as to the children and ordered the defendant to pay child support in the amount of $250 per week.²

₇₉₀For the past fifteen years, the parties have been engaged in postjudgment litigation involving the defendant’s failure to comply with the court’s child support orders. Prior to the proceedings at issue in this appeal, the defendant had been found in contempt five times, two of which involved the court issuing a mittimus against the defendant with purge amounts of $15,000 and $8000. The court issued a capias on four occasions, following the defendant’s failure to appear for court proceedings, and each capias contained a bond amount.

On December 11, 2019, the then self-represented plaintiff filed a motion captioned "motion for order for extension of child support order, education, medical, dependent care expenses through age twenty-one for a child with a qualified disability." In her handwritten motion, the plaintiff stated that she was requesting that the court enter an order extending "child support, education support, medical, dependent care" for their daughter until age twenty-one on the basis that the daughter has a qualifying disability. On December 17, 2019, the plaintiff, who continued as a self-represented litigant, filed a motion for modification of child support. Therein, she represented that the child has a qualifying disability and is eligible for support through age twenty-one. She further represented that there are "[significant expenses for care, support, needed services." She requested, inter alia, that the court "[o]rder current support," that the court order the defendant to "[contribute to child care/support programs," and, under "[o]ther" orders, she handwrote "[e]xpenses pertaining to services, care, programs, education, [and] medical expenses."

The court, Hon. Constance L. Epstein, judge trial referee, held a hearing on the plaintiff’s motions on ₇₉₁February 16, 2022. Although the defendant did not file an objection to the plaintiff's motion, the court understood his objection to be twofold: contesting that their daughter had a mental disability and that she had resided with the plaintiff during the time period at issue. The plaintiff presented the expert testimony of, Julie Casertano, a clinical psychologist who had been treating the parties' daughter since 2006. Casertano testified that the parties’ daughter had been diagnosed with several mental disabilities, including . nonverbal learning disorder, disruptive mood dysregulation disorder, attention deficit hyperactivity disorder, post-traumatic stress disorder, and generalized anxiety disorder. Casertano testified that several-of the daughter’s diagnoses are classified as mental disorders in the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). Casertano testified regarding the daughter’s emotional and behavioral outbursts and inability to obtain a full-time job or live independently.

The plaintiff also presented the expert testimony of Christina Ciocca, who conducted two neuropsychological evaluations, one in 2016 and one in 2019, on the parties’ daughter. Ciocca testified as to the daughter’s diagnoses of nonverbal learning disorder, major depressive disorder, and generalized anxiety disorder. She testified that she opined in her report that, "[g]iven her complex profile, persistent difficulties, [and] recent relapse, [the parties’ daughter] must remain eligible for services through age 22." Ciocca testified that she had recommended that the family seek a conservatorship over their daughter because Ciocca’s test results revealed that "[their daughter] was not able to fully appreciate and make decisions on her behalf and in her best interest." Ciocca stated that, at the time of her report in 2019, she did not believe that the daughter could live independently.

₇₉₂The plaintiff and the defendant also testified at the hearing. The plaintiff testified that she was employed as a special education teacher, earning approximately $75,000 annually. The plaintiff testified as to the expenses she has incurred on behalf of the daughter, including medical expenses and expenses related to Franklin Academy, a residential educational and treatment facility for children with disabilities that the daughter attended for most of her high school years and a postgraduate year, and Landmark College, a special education college that the daughter attended. The defendant testified that he was self- employed in landscape construction, earning approximately $165,000 annually. The defendant testified that he did not deny that the daughter had experienced the issues to which the experts had testified or that the plaintiff had incurred costs for their daughter and, in fact, testified that his "eyes may have enlightened a little more today," but nevertheless maintained that he should not be obligated to assist in the support of their daughter until she reached the age of twenty-one.

During the February 16, 2022 hearing, the court also received documentary evidence, including the two neuropsychological evaluations performed by Ciocca and a document summarizing the plaintiff's expenses, all of which were admitted into evidence without objection. The court also considered the defendant’s October 21, 2021 financial affidavit³ and the plaintiff's February 11, 2022 financial affidavit.

₇₉₃At the conclusion of the hearing, the court specifically inquired of counsel whether the child support guidelines applied to this matter, and both counsel responded that the guidelines do not apply. The court orally issued orders to the parties and thereafter issued a written order that required the defendant to comply with outstanding discovery requests and both parties to submit updated financial affidavits within two weeks. The court also ordered the following: "Counsel are to prepare updated proposed orders. The plaintiff's proposed orders shall include specific monetary amounts. The defendant’s proposed order[s] shall include an indication as to whether he agrees or disagrees with each amount listed in the plaintiff's proposed orders."

On March 1, 2022, the plaintiff submitted her posttrial memorandum in accordance with the court’s February 16, 2022 order. In her proposed orders, she requested, inter alia, that the defendant be ordered to pay $300 per week in child support retroactive for the period of January, 2020, through January, 2022, when their daughter turned twenty-one. The defendant did not comply with the court’s directive to file proposed orders, and he failed to file any other posttrial document.

As the court noted in its April 28, 2022 memorandum of decision, which was reissued as corrected to address typographical errors on August 25, 2022, "[a]t the time of the February 16, 2022 hearing in this matter, [the defendant] had still not complied with long overdue production requests on financial matters, and when questioned as to that significant delay, he replied that ₇₉₄he was ‘too busy.’ At the close of the hearing on February 16, 2022, the court ordered [the defendant’s] compliance with the production requests and an updated financial affidavit within two weeks. As of the date of this memorandum of decision, the court file still does not reflect any notice of compliance by [the defendant] to the outstanding discovery, nor does it reflect the filing of an updated financial affidavit by [the defendant]."

The court made the following findings with respect to the parties’ daughter. "Casertano describes [the daughter] as extremely limited in her cognitive abilities and in her ability to maintain any interpersonal relationships. [She] is anxious about almost all normal everyday activities and experiences and finds almost everything in her life to be not only challenging but very often overwhelming. Some of [her] difficulties include her inability to maintain regular sleep/awake patterns ([her] sleep is irregular in that she will be awake for days and then sleep for days); she has severe mood swings and subjects her family and others to violent emotional outbursts, some resulting in property destruetion; she has alienated herself from her older brother and has made home life very turbulent for her mother and her two younger half brothers because of her frequent belligerent outbursts, temper tantrums, irritability, anger, constantly combative disruptive behavior, and general inability to interact well consistently with anyone. [She] cannot hold down employment or support herself. While she has been able to achieve some temporary gains, such as participating in certain...