Rek v. Pettit

214 Conn.App. 854

280 A.3d 1260

Peter REK et al.

v.Kirk PETTIT et al.

AC 45210

Appellate Court of Connecticut.

Considered May 11, 2022

Officially released September 6, 2022

Megan L. Wade and James P. Sexton, Hartford, in support of the plaintiffs’ motions for review.

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

SUAREZ, J.

The plaintiffs, Peter Rek and Carisa Rek, the legal guardians of a minor child named Caleb,¹ have appealed from the December 15, 2021 orders of the trial court requiring Caleb to suspend contact with his long-term personal counselor and engage with a new therapist with the goal of working toward the resumption of visitation with Caleb's maternal grandparents, the defendants, Kirk Pettit and Charlotte Pettit. On January 7, 2022, the defendants filed a motion with the trial court seeking an order that, notwithstanding the plaintiffs’ appeal, there is no automatic stay of the court's December 15, 2021 orders. On March 8, 2022, the court issued a written order indicating that there is no automatic stay of custody and visitation orders and that the plaintiffs are to comply immediately with its December 15, 2021 orders. On March 17, 2022, the plaintiffs filed a motion for discretionary stay, which the court denied on March 22, 2022.

Before this court are two motions for review filed by the plaintiffs.² The first motion, filed on April 4, 2022, asks this court to review and reverse the court's March 8, 2022 order determining that there is no automatic appellate stay in effect. The second motion, filed on April 21, 2022, asks this court to review and reverse the court's March 22, 2022 order denying their request for a discretionary stay. On the first motion for review, we conclude that the underlying orders are visitation orders that are not automatically stayed pursuant to Practice Book § 61-11 (c). On the second motion for review, we conclude that the court did not abuse its broad discretion in denying the plaintiffs’ request for a discretionary stay only insofar as the court ordered the parties to engage with a new therapist for the purposes of facilitating visitation; we reach a different conclusion with respect to the court's order suspending Caleb's contact with his long-term personal counselor. We therefore grant the plaintiffs’ April 4, 2022 motion for review, but deny the relief requested therein, and grant the April 21, 2022 motion for review, and grant, in part, the relief requested therein.

The following undisputed facts and procedural history are pertinent to the resolution of these motions. Caleb was born in 2010. When Caleb's biological parents became unavailable to care for him, the plaintiffs and the defendants filed petitions for custody of Caleb with the Superior Court for Juvenile Matters in Waterbury. 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 and entered it as an order of the court. The order further 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 objected and filed a motion for contempt. This protracted litigation followed. Notwithstanding court orders to the contrary, visitation actually ceased in August, 2017, allegedly due to Caleb's anxiety in the presence of the defendants. Attorney Rosa C. Rebimbas was appointed as guardian ad litem (GAL) for Caleb on September 10, 2018.

The court, Coleman, J. , conducted an evidentiary hearing from September 3 through 6, 2019, on the plaintiffs’ November 29, 2016 motion. Among the witnesses who testified at the 2019 trial were the GAL; Patricia Levesque, Caleb's personal counselor since 2016; Constance Mindell, who, the court found, had been involved to "assist the parties in working together for the best interests of the child" since September, 2017; and Kristan McClean, who, the court found, has "been involved since January 14, 2019, to help the parties foster a better relationship" between Caleb and the defendants. On January 3, 2020, the court, in a memorandum of decision, granted the plaintiffs’ motion to modify and issued orders requiring progressively increased contact (letters, phone calls, and "fun time" outings with Peter Rek, Kirk Pettit, and Caleb). It specifically required the parties to "continue to work together in a therapeutic setting with Kristan McClean or some other mutually agreed upon duly licensed and qualified therapist to arrive at a schedule of visitation ...." The court gave the parties a one year report back date. Neither party appealed from the January 3, 2020 orders.

On February 26, 2020, the defendants filed a motion for order claiming that the plaintiffs would not cooperate in finding a different "mutually agreed upon" therapist to work toward visitation, to which the plaintiffs objected. Court operations were curtailed shortly thereafter due to the COVID-19 pandemic.

On January 5, 2021, the parties appeared before Judge Coleman for their report back date. On January 26, 2021, the plaintiffs filed a motion for order, asking the court to preclude the defendants from rearguing issues that predated the January 3, 2020 decision. The defendants objected. The parties and their counsel appeared before the court on various dates in early 2021. On February 16, 2021, the plaintiffs filed a request for an evidentiary hearing because there was a disagreement as to whether the parties had complied with the court's January 3, 2020 orders. Thereafter, the court requested that each side provide the name of a family therapy professional acceptable to that side. On April 7, 2021, the defendants filed a notice of compliance, giving the name of Philip J. Mays. On April 8, 2021, the plaintiffs filed their notice of compliance, giving the names of three professionals at Connecticut Behavioral Health. In that notice, they also requested "an evidentiary hearing on the issue of whether ... engag[ing] with another therapist for the purpose of determining whether visitation between [the defendants and Caleb] is in the best interest of the minor child."

The court heard testimony on June 1, June 28, and August 16, 2021, on the plaintiffs’ April 8, 2021 request for a hearing. At that hearing, McClean testified that, beginning in January, 2019, her role was to work with the parties to establish a safe and healthy visitation relationship. In alternating weeks, she met with Caleb and then the defendants, to work through Caleb's concerns with "past interactions" with the defendants in order to "work toward" a joint session. There was one joint session in the summer of 2019, which she described as "uncomfortable" for Caleb. McClean testified that she had not met with the defendants since September, 2019. She testified that she believed they were unwilling to work with her, although she had "made herself available." She continued to meet remotely with Caleb and the plaintiffs approximately once per month through September, 2020. The court also heard testimony from Kirk Pettit, Carisa Rek, Levesque, and the GAL, and then heard closing arguments.

On December 15, 2021, the court issued a memorandum of decision in which it reversed its January 3, 2020 orders and issued a series of new orders. The court, inter alia, (1) ordered the parties to discontinue working with McClean altogether, (2) "suspended until further order of the court" any contact between Caleb and Levesque, and (3) ordered the parties to engage the services of Mays, the defendants’ chosen family therapist, to "conduct one therapeutic/reunification visit per month" with Caleb, and "as appropriate including with [the defendants] and any other parties deemed necessary." Those orders also required progressively increased contact (letters, phone calls, and "fun time" outings with Peter Rek, Kirk Pettit, and Caleb) and monthly in-person visits between Caleb and the defendants, supervised by one or both of the plaintiffs, beginning as soon as March, 2022, "[i]f and when deemed appropriate" by Mays.

On January 3, 2022, the plaintiffs filed this appeal. On January 4, 2022, the plaintiffs’ appellate counsel notified Mays, by way of email, that he had filed an appeal of the court's January 3, 2022 orders and, as a result of the automatic stay stemming from the appeal, he advised the plaintiffs not to meet with him. On January 10, 2022, the defendants filed a motion for order in the trial court, asking the court to terminate the appellate stay, if one existed. The plaintiffs objected on substantive and procedural grounds.³ The plaintiffs also filed a motion for a mistrial, which the court denied. On January 28, 2022, the plaintiffs filed an amended appeal challenging the denial of their motion for a mistrial.

I

In their first motion for review, filed on April 4, 2022, the plaintiffs challenge the court's determination that an automatic appellate stay was not in effect and argue that the December 15, 2021 orders are not "orders of ... visitation" that are exempt from the automatic appellate stay. We are not persuaded.

Our review of the plaintiffs’ claim requires us to construe Practice Book § 61-11, particularly subsections (a) and (c). The interpretation and application of provisions of the rules of practice involves a question of law over which our review is plenary. See Bouffard v. Lewis , 203 Conn. App. 116, 120, 247 A.3d 667 (2021).

Practice Book § 61-11 governs stays of execution. Section 61-11 (a) provides in relevant part: "Except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment or order shall be automatically stayed until the time to file an appeal has expired. If an appeal is filed, such proceedings shall be stayed until the final determination of the cause. ..." Pursuant to § 61-11 (c), certain orders in family matters...