Medeiros v. Medeiros

175 Conn.App. 174

167 A.3d 967

Christina MEDEIROS

v.David D. MEDEIROS

(AC 38070).

Appellate Court of Connecticut.

Argued January 9, 2017

Officially released August 1, 2017

David A. Golas, Manchester, for the appellant (defendant).

Andrew S. Knott, with whom, on the brief, was Robert J. Santoro, Cheshire, for the appellee (plaintiff).

Keller, Prescott and Harper, Js.

KELLER, J.

In this postdissolution proceeding, the defendant, David D. Medeiros, appeals from the judgment of the trial court finding him in contempt for violating an order providing the plaintiff, Christine Medeiros, with access to their minor child. The defendant claims that the court committed error in (1) failing to allow him a fair opportunity to present a defense to the plaintiff's motion for contempt; (2) failing to require that the evidence establishing its finding of contempt met the required clear and convincing standard of proof; (3) preventing the defendant from testifying as to statements made to him by the minor child about events occurring during a visit with the plaintiff; and (4) imposing certain sanctions, including monetary fines. We agree with the defendant that the monetary fines imposed on him by the court were improper, accordingly, we reverse that part of the judgment of the trial court. The judgment is affirmed in all other respects.

The following facts, as determined by the trial court in its oral decision of June 3, 2015,¹ and procedural history are relevant to this appeal. The parties were divorced on February 28, 2013. There is one child issue of the marriage, who was born in 2007. A parental responsibility plan, agreed to by the parties, was incorporated into the judgment of dissolution. That plan awarded joint legal custody and shared physical custody of the child to the parties. Subsequent to the date of the judgment of dissolution and prior to the contempt hearing that is the subject of this appeal, there were five separate modifications of the judgment affecting the orders pertaining to custody and access to the child. The first two of these subsequent modifications awarded the defendant sole legal custody of the child and required that the plaintiff's visitation with the child be supervised, but the final modification, issued by the court, Boland, J. , on April 7, 2015, restored the parties' joint legal custody, and the plaintiff was afforded access consisting of unsupervised visits, with overnight visits resuming effective July 30, 2015.² The order also noted that the child's court appointed guardian ad litem, Tracie Molinaro, would be discharged effective July 30, 2015.³

On May 13, 2015, the plaintiff filed a motion for contempt alleging that on May 12, 2015, in violation of the April 7, 2015 order, the defendant refused to allow her access to the child and had threatened to stop all visitation.⁴ The motion was heard by the court, dos Santos, J. , on June 3, 2015. The court heard testimony from the plaintiff and the defendant. At the conclusion of the hearing, following a recess, the court issued its oral decision setting forth the factual basis for its finding that the defendant was in wilful contempt of the April 7, 2015 order. The court stated: "The court finds that the [plaintiff] did not access visitation, as ordered by Judge Boland, and the denial of access visitation occurred on May 12, on May 15, and May 17, and that the denial was without justification.⁵

"There was an incident, while the child was in [the plaintiff's] custody/visitation/access, where [the plaintiff] disciplined the child. The court finds, based upon the credible testimony, that [the plaintiff] acted appropriately in disciplining the child. And the court also further finds that the child was not physically disciplined by [the plaintiff]. The court finds that the child acted unruly, and the [plaintiff] appropriately disciplined the child. The court notes that, in this instance, the child does not have a say on whether or not he wants to visit with [the plaintiff].

"The court finds that [the defendant's] actions in utilizing the recommendations of the [guardian ad litem] and the child's counselor are being used to alienate the ability of [the plaintiff] to parent this child, and that [the defendant's] actions are in wilful disregard of the orders that were imposed by, only a short time ago ... Judge Boland.

"The court notes in making its findings that the [defendant] did not notify the police until he decided that he was going to stop visitation, that he did not contact [the Department of Children and Families] if [the defendant] was so concerned about the child's welfare and well-being. And the court cannot find that [the plaintiff] exposed the child to unsafe conditions or situations." (Footnote added.)

The court then imposed sanctions. It ordered that the defendant be incarcerated for a period of ten days; that he be fined for each day that he denied the plaintiff access to her child at the rate of $100 per day, for a total of $300; that he be fined for violating the court's order in the amount of $500; and that he pay the plaintiff attorney's fees of $2500 and marshal fees for service in the amount of $143 within sixty days. With respect to the ten day order of incarceration, the court stated: "Now, insofar as the ten days ordered incarceration, the court will not, at this point, incarcerate the defendant, but give him an opportunity to allow the court-ordered visitation, that was ordered by Judge Boland, to take place. So, the court will not impose the incarceration at this time, but it is there, and the court, then, will consider whether or not to vacate it entirely upon successful—upon the court being satisfied that [the defendant] has complied with the court-ordered visitation."⁶ On June 3, 2015, the court also issued a written order reiterating, without reference to the factual findings it had made in its oral decision that same day, its finding of wilful contempt and the sanctions it had imposed, and adding that all of the fines imposed were to be paid within twenty days. This appeal followed. Additional facts will be set forth as necessary.

I

We address the defendant's first and third claims together because they both relate to claimed error on the part of the court in not permitting him to present a defense to the motion for contempt. The defendant's first claim is that the court erred in failing to allow him a fair opportunity to present his defense, and his third claim is that the court erred in failing to allow him to testify as to statements made to him by the child about events occurring during a visit on May 10, 2015, with the plaintiff.⁷ Specifically, the defendant asserts that after allowing the plaintiff to testify as to what had occurred on May 10, 2015, during her visit with the child, including statements that she testified the child had made to her,⁸ he was not permitted to testify as to what the child told him when the child returned to the defendant's home after the visit.

We begin by setting forth the applicable standard of review for evidentiary claims. "To the extent [that] a trial court's admission of evidence is based on an interpretation of the Code of Evidence, our standard of review is plenary. For example, whether a challenged statement properly may be classified as hearsay and whether a hearsay exception properly is identified are legal questions demanding plenary review. ... We review the trial court's decision to admit evidence, if premised on a correct view of the law, however, for an abuse of discretion. ... In other words, only after a trial court has made the legal determination that a particular statement is or is not hearsay, or is subject to a hearsay exception, is it vested with the discretion to admit or to bar the evidence based upon relevancy, prejudice, or other legally appropriate grounds related to the rule of evidence under which admission is being sought." (Citation omitted; internal quotation marks omitted.) State v. Miguel C. , 305 Conn. 562, 571–72, 46 A.3d 126 (2012).

"In a civil case, the appellant has the burden of establishing the specific harmfulness of the error by demonstrating the likelihood that the evidentiary ruling had affected the result." (Internal quotation marks omitted.) Johnson v. Johnson , 111 Conn.App. 413, 420, 959 A.2d 637 (2008).

Relative to the issue of whether the court erred in sustaining the plaintiff's objections to the defendant's testimony as to what the child reported to him after the May 10, 2015 visit, the following testimony occurred during the direct examination of the defendant.

"[The Defendant's Counsel]: Mr. Medeiros, you were in court April 7 when Judge Boland entered orders for visitation, correct?

"[The Defendant's Counsel]: And keep your voice up.

"[The Witness]: Okay.

"[The Defendant's Counsel]: Either that or I'll stand at the back of the courtroom and you'll have to yell at me.

"[The Witness]: Okay. Yes.

"[The Defendant's Counsel]: And from that day forward did you immediately start providing the visitation that Judge Boland had ordered?

"[The Witness]: Yeah. I was happy.

"[The Defendant's Counsel]: And how—when [the child would] come home did he express concerns to you over what was happening—

"[The Plaintiff's Counsel]: Objection. That would be hearsay just as well.

"[The Defendant's Counsel]: No. I didn't ask—I'm not asking—his state of mind—

"The Court: Well, it calls for a yes or no. I'll allow the question.

"[The Witness]: Yes.

"[The Defendant's Counsel]: Okay. Did you discuss these concerns with [the plaintiff]?

"[The Witness]: Yes.

"[The Defendant's Counsel]: And all during the time between April 7 and May 10 was [the child] provided with a cell phone?

"[The Witness]: Yes, he was. A safety phone.⁹

"[The Defendant's Counsel]: And what was your understanding as to the use of the cell phone? Why was he given a cell phone?

"[The Witness]: [The child] was given a cell phone on the recommendation, actually, of Judge Boland, where [the child] could have a safety...