Rek v. Pettit

222 Conn.App. 132

303 A.3d 926

Peter REK et al. v. Kirk PETTIT et al.

AC 45210

Appellate Court of Connecticut.

Argued May 11, 2023

Officially Released October 24, 2023

Megan L. Wade, with whom was James P. Sexton, Hartford, for the appellants (plaintiffs).

Bright, C. J., and Elgo and Seeley, Js.

ELGO, J.

This appeal concerns the propriety of the December 15, 2021 judgment of the trial court issuing certain orders regarding visitation between the defendants, Kirk Pettit and Charlotte Pettit, and Caleb, a minor child. ¹ On appeal, the plaintiffs, Peter Rek and Carisa Rek, the legal guardians of Caleb, claim that the court (1) lacked subject matter jurisdiction to issue those orders, (2) improperly denied their motion to open and vacate the December 15, 2021 judgment, and (3) improperly denied their motion for a mistrial due to the court's failure to render judgment in accordance with General Statutes § 51-183b.

While this appeal was pending, the trial court granted the plaintiffs’ motion to terminate visitation between the defendants and Caleb. When no appeal was taken from that judgment, this court invited the parties to file supplemental briefs on the issue of whether the present appeal is moot. Having considered that issue of subject matter jurisdiction in light of the foregoing, we conclude that the plaintiffs’ appeal is moot and dismiss the appeal.

The relevant facts are not in dispute. On August 8, 2016, the Superior Court for Juvenile Matters, Dooley, J. , appointed the plaintiffs as legal guardians of Caleb and approved a visitation agreement between the plaintiffs and the defendants. That agreement, which was entered as an order of the court, specifically provided that enforcement or modification thereof would be in family court. On November 29, 2016, the plaintiffs filed the underlying action seeking to modify the terms of the visitation agreement. The defendants, in turn, filed an objection and a motion for contempt. As this court noted in Rek v. Pettit , 214 Conn. App. 854, 280 A.3d 1260, cert. dismissed, 345 Conn. 969, 285 A.3d 1126 (2022), protracted litigation between the parties followed. Id., at 857, 280 A.3d 1260.

Relevant to this appeal is the judgment rendered by the court, Hon. Eric D. Coleman , judge trial referee, on December 15, 2021, following a three day evidentiary hearing on the issue of the parties’ compliance with existing visitation orders. The court at that time issued various orders regarding visitation between the defendants and Caleb and the appointment of a therapist to facilitate such visitation. The court also suspended Caleb's treatment with his personal therapist, Patricia Levesque.

On December 28, 2021, the plaintiffs filed a motion for a mistrial with the trial court predicated on the court's failure to render a timely decision pursuant to § 51-183b. ² The plaintiffs commenced the present appeal on January 3, 2022. Approximately three weeks later, the court denied the plaintiffs’ motion for a mistrial and the plaintiffs thereafter filed an amended appeal with this court to include a challenge to that determination.

On November 14, 2022, the plaintiffs filed a motion to open and vacate the December 15, 2021 judgment and related orders on the ground that the court lacked subject matter jurisdiction to issue them pursuant to Roth v. Weston , 259 Conn. 202, 789 A.2d 431 (2002), and General Statutes § 46b-59. After hearing argument from the parties, the court orally denied that motion on December 8, 2022. The plaintiffs then filed a second amended appeal to challenge the court's denial of their motion to open and vacate.

The plaintiffs filed their appellate brief with this court on January 30, 2023. On March 7, 2023, the defendants filed a notice of their intent not to file an appellate brief in this appeal. This court thereafter heard oral argument from the plaintiffs’ counsel on May 11, 2023.

While this appeal was pending, the plaintiffs filed a motion with the trial court to terminate visitation between the defendants and Caleb. The court, Rapillo , J ., held a two day hearing in March, 2023, and issued a memorandum of decision on July 11, 2023, in which it concluded that, "based on the testimony of the guardian ad litem, the therapists and [Caleb] himself, the court cannot conclude that mandating visitation [with the defendants] is in the best interest of this young man. ... [It] is in [Caleb's] ... best interest and the evidence is sufficient to show that he would suffer psychological harm by being forced to engage in further efforts at reunification with the [defendants]." The court thus granted the plaintiffs’ motion and ordered that "[v]isitation with the defendant[s] ... is terminated immediately."

When the appeal period passed without the filing of an appeal by any party to challenge the propriety of that judgment, this court invited the parties to file supplemental briefs on the issue of mootness. See Chief of Police v. Freedom of Information Commission , 68 Conn. App. 488, 491 n.4, 792 A.2d 141 (2002) ("in matters involving subject matter jurisdiction, we have exercised our discretion in determining whether to order parties to brief the issue or to decide the issue in lieu of such an order"). We now conclude that the present appeal is moot.

"Mootness implicates [this] court's subject matter jurisdiction and is thus a threshold matter for us to resolve. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. ... When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot. ... In other words, where the question presented is purely academic, we must refuse to entertain the appeal." (Citation omitted; internal quotation marks omitted.) Harris v. Harris , 291 Conn. 350, 354–55, 968 A.2d 413 (2009).

The present appeal concerns the propriety of the orders issued by the court on December 15, 2021, regarding visitation between the defendants and Caleb and the appointment of a therapist to facilitate such visitation. Because the trial court rendered judgment terminating visitation between the defendants and Caleb while this appeal was pending, there no longer is any practical relief that this court can grant by addressing the merits of the plaintiffs’ appeal. Even if we were to conclude that the trial court improperly entered the visitation related orders in question or that the court failed to comply with the 120 day rule of § 51-183b, a remand to the trial court for further proceedings would be futile, as no actual controversy remains regarding visitation between the defendants and Caleb.

In their supplemental brief, the plaintiffs submit that the present appeal is not moot for two reasons. They first contend that, because the court's July 11, 2023 judgment " only concerns termination of visitation, the December 15, 2021 order terminating the therapeutic relationship between Caleb and Levesque appears to remain in effect." ³ (Emphasis in original.) They argue that "[i]t is not clear that the July 11, 2023 order terminating visitation explicitly voids Judge Coleman's order regarding Levesque, because that order was not directly related to the visitation orders." The record before us belies that claim. At the hearing held on August 16, 2021, Levesque offered her professional opinion that forcing Caleb to participate in therapy with the defendants would "further traumatize him" ⁴ and that it was not advisable to engage another therapist for purposes of facilitating visitation with the defendants. After counsel for the parties concluded their respective examinations, the court proceeded to question Levesque extensively with respect to how her work with Caleb affected the court's visitation orders. ⁵ The court also asked Levesque if her purpose at any time was "to facilitate the visitation between Caleb and [the defendants] that was a part of the stipulated agreement reached in Juvenile Court," to which Levesque replied that she was not "involved" with the defendants but rather was providing therapeutic treatment to Caleb.

In light of that questioning, during closing argument counsel for the defendants sought to modify the defendants’ proposed orders to seek removal of Levesque "from this boy's life." ⁶ At the conclusion of the hearing, the court noted its concern that "the professionals that are involved" were not "getting the job done" and then ordered, in its subsequent memorandum of decision, that "[t]he psychotherapy sessions and any other contacts between [Caleb and Levesque] shall be suspended until further order of the court." When read in the context of the evidentiary hearing held on June 1 and 28, and August 16, 2021, that order plainly was intertwined with the visitation issues before the court, as this court has held. ⁷

Accordingly, when the court terminated visitation between the defendants and Caleb on July 11, 2023, it effectively mooted the December 15, 2021 order suspending therapy sessions with Levesque.

The plaintiffs also claim that the "collateral consequences" exception to the mootness doctrine applies. "[T]o invoke successfully the collateral consequences doctrine, the litigant must show that there is a reasonable possibility that prejudicial collateral consequences will occur. Accordingly, the litigant must establish these consequences by more than mere conjecture, but need not demonstrate that these consequences are more probable than not." (Internal quotation marks omitted.) Putman v. Kennedy , 279 Conn. 162, 169...