Garvey v. Valencis

177 Conn.App. 578

173 A.3d 51

Denise A. GARVEY

v.Stanley M. VALENCIS

AC 38407

Appellate Court of Connecticut.

Argued April 25, 2017

Officially released October 31, 2017

Charles D. Ray, with whom was Brittany A. Killian, for the appellant (plaintiff).

John C. Lewis III, with whom, on the brief, was Juri E. Taalman, for the appellee (defendant).

Robert J. Kor, for the guardian ad litem of the minor child.

Lavine, Sheldon and Pellegrino, Js.

PELLEGRINO, J.

The plaintiff, Denise A. Garvey, appeals from the judgment of the trial court sustaining the emergency ex parte custody order entered pursuant to General Statutes § 46b–56f¹ denying the plaintiff visitation with the parties' child. The order was entered pursuant to the application of the defendant, Stanley M. Valencis. On appeal, the plaintiff claims that: (1) the court improperly entered and extended the emergency ex parte custody order in violation of § 46b–56f, Practice Book § 4–5, and the plaintiff's constitutional right to due process, and (2) there was insufficient evidence to conclude, as the court did, that the incident giving rise to the emergency ex parte order constituted an immediate and present risk of psychological harm to the child.² We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The parties, who never married one another, lived together for a short period of time during the plaintiff's pregnancy but separated after the birth of their child in 2002. The parties have litigated custodial, support, and visitation rights throughout the child's life. Notably, the defendant was awarded, and has maintained, sole legal and primary physical custody of the child since 2005 pursuant to a Massachusetts judgment. The file in the present matter was opened on June 8, 2007, by action of the plaintiff, who sought to register and enforce the foreign child custody determination in this state. Emily Moskowitz, an attorney, was appointed guardian ad litem for the child on May 20, 2010. On January 14, 2013, the parties stipulated to a gradual increase in the plaintiff's visitation with the child.

On May 10, 2015, a physical confrontation occurred between the child and the plaintiff during a regularly scheduled visit at the plaintiff's home. Believing that his mother was recording a conversation with him regarding a prior missed visit, the child texted the defendant stating that he was not okay and wanted to return home. Shortly thereafter, the defendant received a phone call from the child, but the child did not respond when the defendant answered the phone. Instead, the defendant heard a "significant disturbance." Specifically, the defendant heard the child say: "Let me go. You're hurting me. Stop." The defendant's wife and the guardian ad litem also listened to the disturbance. After conferring with the guardian ad litem, the defendant drove to the plaintiff's home to pick up the child. The police were notified of the situation and arrived at the plaintiff's home shortly after the defendant. The police, after interviewing the plaintiff and the then twelve and one-half year old child, and consulting with the guardian ad litem, concluded it was in the child's best interest for him to return home with the defendant.

On May 12, 2015, the defendant filed an application for an emergency ex parte order of custody pursuant to § 46b–56f. That same day, the court found that an immediate and present risk of physical or psychological harm to the child existed and granted the defendant's ex parte application. The court suspended the plaintiff's visitation rights and denied her any contact with the child. The court scheduled a hearing on the matter to be held nine days later, on May 21, 2015.

The court conducted an evidentiary hearing on the ex-parte application over several days: May 21, June 16, June 24, and September 1, 2015. Both parties were represented by counsel. Numerous witnesses testified, including the parties and the guardian ad litem. On September 2, 2015, the court issued a memorandum of decision on the ex parte order of custody, finding "by clear and convincing evidence that the orders of May 12, 2015, were appropriately entered and that a current, immediate and present risk of psychological harm to the child exists."

Following oral argument before us, we ordered the court to articulate the factual basis for its conclusion that a current, immediate, and present risk of psychological harm to the child existed. The court articulated, among other things, that several days after the incident, the child was still visibly upset and stated to the guardian ad litem that the plaintiff had "hit him, pushed him, and threw him to the ground," and that "he never wanted to see [her] again." The child's therapist recommended that the child not see the plaintiff at that time. According to the child's tutor, the child was upset, aggravated, and agitated. His ability to stay focused and complete his work had decreased drastically. Academically, the child had regressed by two to three years. Additional facts will be set forth as necessary.

I

The plaintiff claims that the court improperly entered, and extended, the emergency ex parte custody order in violation of § 46b–56f(c), Practice Book § 4–5, and the plaintiff's constitutional right to due process under the fourteenth amendment of the United States constitution and article first, §§ 8 and 10, of the constitution of Connecticut.

As a preliminary matter, we identify our standard of review and the general legal principles relevant to our analysis. "The interpretation and application of a statute, and thus a Practice Book provision, involves a question of law over which our review is plenary." Wiseman v. Armstrong, 295 Conn. 94, 99, 989 A.2d 1027 (2010). "When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.... In seeking to determine that meaning, General Statutes § 1–2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." (Internal quotation marks omitted.) Wilton Meadows Ltd. Partnership v. Coratolo, 299 Conn. 819, 825, 14 A.3d 982 (2011).

A

The plaintiff first claims that the court improperly entered the emergency ex parte custody order in violation of § 46b–56f(c). Specifically, the plaintiff argues that such relief was improper because § 46b–56f(c)"requires an effort to hear from the other party," and that she was available, desired to participate, and was present in the courthouse when the court entered the ex parte order. The defendant argues that § 46b–56f(b) does not require the court to hear from the respondent. We agree with the defendant.

In accordance with § 1–2z, we begin with the relevant text of § 46b–56f. Section 46b–56f(b) provides that: "The application [to the Superior Court for an emergency ex parte order of custody] shall be accompanied by an affidavit made under oath which includes a statement (1) of the conditions requiring an emergency ex parte order, (2) that an emergency ex parte order is in the best interests of the child, and (3) of the actions taken by the applicant or any other person to inform the respondent of the request or, if no such actions to inform the respondent were taken, the reasons why the court should consider such an application on an ex parte basis absent such actions." Section 46b–56f(c) provides in relevant part that: "The court shall order a hearing on any application made pursuant to this section. If, prior to or after such hearing, the court finds that an immediate and present risk of physical danger or psychological harm to the child exists, the court may, in its discretion, issue an emergency order for the protection of the child ...."

The text of § 46b–56f(b) does not require that the court provide a respondent with the opportunity to be heard prior to ordering emergency ex parte relief. See Kinsey v. Pacific Employers Ins. Co., 277 Conn. 398, 408, 891 A.2d 959 (2006) ("when the language is read as so applied, it appears to be the meaning and appears to preclude any other likely meaning" [emphasis in original; internal quotation marks omitted] ). Section 46b–56f(b) merely provides that the applicant submit an affidavit detailing the conditions requiring an emergency ex parte order, stating that the emergency ex parte order is in the best interests of the child, and stating the actions taken to notify the respondent, or if no actions were taken to inform the respondent, explaining why the court should consider such an application on an ex parte basis absent such notification efforts.³ Accordingly, we conclude that § 46b–56f does not require the court to hear from the respondent before granting the application for emergency ex parte order of custody and issuing appropriate ex parte orders.

B

The plaintiff next claims that § 46b–56f (c) mandates that a hearing be completed within fourteen days after the ex parte emergency order is issued. We disagree. Section 46b–56f(c) provides in relevant part: "The court shall order a hearing on any application made pursuant to this section. If, prior to or after such hearing, the court finds that an immediate and present risk of physical danger or psychological harm to the child exists, the court may, in its discretion, issue an emergency order for the protection of the child .... If relief on the application is ordered ex parte, the court shall schedule a hearing not later than fourteen days after the date of such ex parte order. If...