Marlene Balaska v. Richard Balaska.

130 Conn.App. 510

25 A.3d 680

Marlene BALASKA

v.Richard BALASKA.

No. 32241.

Appellate Court of Connecticut.

Argued April 25, 2011.Decided Aug. 2, 2011.

William H. Cashman, New Hamden, with whom was Maria Chiarelli, Hamden, for the appellant (plaintiff).Richard Balaska, pro se, the appellee (defendant).ROBINSON, BEAR and BORDEN, Js.BORDEN, J.

The plaintiff, Marlene Balaska, appeals from the postdissolution order of the trial court modifying the visitation of the defendant, Richard Balaska, with respect to their minor child, C. On appeal, the plaintiff claims that the court: (1) abused its discretion by modifying the visitation order without finding a substantial change in circumstances or finding that modification was in the best interests of the child, and without considering the defendant's present ability to parent; (2) improperly ordered the parties to attend parental counseling; (3) erroneously found that she had engaged in parental alienation; and (4) improperly referred to treatises and articles that were not exhibits at trial.¹ We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of the plaintiff's appeal. The parties were married on May 29, 1994. They have two minor children of the marriage: a son, C, born in 1994; and a daughter, A, born in 1997. In May, 2006, the plaintiff filed a complaint seeking the dissolution of her marriage to the defendant on the ground of irretrievable breakdown. On November 5, 2007, the court rendered judgment dissolving the parties' marriage. The judgment incorporated by reference the terms of a separation agreement that the parties had entered into on the same date. The agreement provided in relevant part that the parties were to have joint legal custody of C and A, with the plaintiff having primary physical custody. During the school year, the defendant had visitation with the children once a week after school until 7:30 p.m., and one additional midweek evening per month from 5 p.m. to 8 p.m. During the summer, he had visitation twice a week from 4 p.m. to 8 p.m. In addition, the defendant had visitation on alternating weekend days and holidays. The agreement did not provide the defendant with any overnight parental access.

The record reflects that the parties subsequently engaged in classic, high conflict postdissolution litigation regarding family matters. See Strobel v. Strobel, 73 Conn.App. 428, 808 A.2d 698, appeal dismissed, 267 Conn. 901, 838 A.2d 209 (2003). In this context, both parties filed, inter alia, motions seeking to modify custody and visitation with respect to both children. The defendant sought sole physical and legal custody of C, along with increased visitation. The plaintiff, in response, moved for sole legal custody of both C and A, along with more restricted visitation for the defendant.

Following a fourteen day hearing, the court issued its order increasing the defendant's visitation rights with C but suspending entirely his visitation with A.² The defendant's increased visitation time with C included overnight visitation.³ In addition, the court ordered that the plaintiff and the defendant engage in the coparenting program “Focus on Kids” at a minimum of once per month “to discuss [their children's] behavioral issues, educational issues, medical issues and planning for their children's futures.” The court found that the plaintiff's and defendant's participation in parental counseling was in the best interests of both children. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the court improperly increased the defendant's visitation with C without finding a substantial change in circumstances or that modification was in the child's best interests, and without considering the defendant's present ability to parent. We disagree.

We begin by setting forth the standard of review and legal principles that guide our analysis. “Our standard of review of a trial court's decision regarding custody, visitation and relocation orders is one of abuse of discretion.” (Internal quotation marks omitted.) Emrich v. Emrich, 127 Conn.App. 691, 694, 15 A.3d 1104 (2011). “As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case....” (Internal quotation marks omitted.) Misthopoulos v. Misthopoulos, 297 Conn. 358, 366, 999 A.2d 721 (2010).

“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.... Appellate review of a trial court's findings of fact is governed by the clearly erroneous standard of review. The trial court's findings are binding on this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole.... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence in the record to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Buehler v. Buehler, 117 Conn.App. 304, 317–18, 978 A.2d 1141 (2009).

A

“General Statutes § 46b–56 (a) ⁴ provides the court [with] broad authority to make or modify any proper order regarding the custody, care, education, visitation and support of minor children in dissolution actions.” (Internal quotation marks omitted.) Tomlinson v. Tomlinson, 119 Conn.App. 194, 202, 986 A.2d 1119, cert. granted on other grounds, 295 Conn. 916, 990 A.2d 868 (2010). The plaintiff argues that the court abused its discretion by modifying the defendant's visitation with C because the defendant failed to introduce any evidence demonstrating a substantial change in circumstances. This premise, however, reflects a misunderstanding of the applicable law.

In ruling on a motion to modify visitation, the court is not required to find as a threshold matter that a change in circumstances has occurred. ⁵ Szczerkowski v. Karmelowicz, 60 Conn.App. 429, 433, 759 A.2d 1050 (2000); see also McGinty v. McGinty, 66 Conn.App. 35, 40, 783 A.2d 1170 (2001). Instead, “[i]n modifying an order concerning visitation, the trial court shall ‘be guided by the best interests of the child....’ General Statutes § 46b–56 (b).” ⁶ Kelly v. Kelly, 54 Conn.App. 50, 57, 732 A.2d 808 (1999); see Szczerkowski v. Karmelowicz, supra, at 432, 759 A.2d 1050 (“[w]hen a court rules on a motion to modify visitation, it is statutorily incumbent on the court that its order be guided by the best interest of the child standard”). Accordingly, the court's alleged failure to find a substantial change in circumstances did not render its order modifying visitation improper.

The plaintiff also contends that the court increased the defendant's visitation with C absent a finding that modification was in the best interests of the child. We conclude, however, that her contention is at odds with the underlying record and the court's oral memorandum of decision.

Following final argument, the court assured the parties that, in carrying out its statutory duties pursuant to § 46b–56, all of its orders would be entered according to the best interests of the children. Subsequently, on the basis of extensive evidence presented at the underlying hearings, the court found that the defendant and C had “a positive relationship and that [visitation] time should be expanded.” In making this determination, the court specifically credited the testimony of the defendant that he and C had spent meaningful time together, enjoying a wide variety of activities, and found that the two had “a close and bonded relationship.”

In addition, the court found that the testimony of Michael Perzin, the guardian ad litem, corroborated the defendant's testimony. Perzin testified that when he visited with C at the defendant's home, C seemed to be “very happy, relaxed ... [and] having a really good time.” Following that visit, Perzin indicated in his notes that there was “no apparent reason why [C] shouldn't have expanded [visitation] time [with the defendant]....” Moreover, Perzin testified during the proceedings that, in his opinion, the defendant should have been permitted increased visitation, including overnight weekend visits and an overnight weeknight stay. As this court has noted, “[i]t is well established that the role of the guardian ad litem is to speak on behalf of the best interest of the child.” In re Tayquon H., 76 Conn.App. 693, 704, 821 A.2d 796 (2003). In light of the foregoing, we conclude that the court, in modifying its visitation orders, was properly guided by the best interests of the child standard.

B

The plaintiff also claims that the court improperly modified the visitation order without considering the defendant's present ability to parent. The plaintiff contends, in essence, that because the defendant did not introduce evidence regarding his present ability to parent, the court abused its discretion by speculating as to the defendant's parenting abilities. We are not persuaded.

In support of her claim, the plaintiff cites to two decisions from this court, namely, Feinberg v. Feinberg, 114 Conn.App. 589, 970 A.2d 776, cert. granted, 293 Conn. 901, 975 A.2d 1277 (2009), and O'Neill v. O'Neill, 13 Conn.App. 300, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988), for the proposition that a trial court's decision to modify a particular parent's visitation must be supported by sufficient evidence regarding that parent's present parenting ability. Our review of those two cases, however, reveals that the plaintiff's reasoning is flawed for two reasons.

First, in both Feinberg and O'Neill, this court was reviewing judgments from the trial court that involved custody...