S. C. v. J. C.

321 A.3d 427

227 Conn.App. 326

S. C.

v.J. C.^*

(AC 46049)

Appellate Court of Connecticut.

Argued January 17, 2024

Officially Released August 13, 2024

Dante R. Gallucci, Fairfield, for the appellant (plaintiff).

Moll, Clark and Westbrook, Js.

CLARK, J.

₃₂₇In this custody dispute, the plaintiff mother, S. C., appeals from the judgment of the trial court granting certain postdissolution motions of the ₃₂₈defendant father, J. C.¹ On appeal, the plaintiff claims that the court erred in (1) continuing a previously issued emergency order of temporary custody that gave the defendant sole legal custody of the parties’ two children and primary physical custody of the parties’ youngest child, A, pursuant to General Statutes § 46b-56f because (a) the defendant did not prove by a preponderance of the evidence that there was an immediate and present risk of physical danger or psychological harm to the children sufficient to support his application and, therefore, the granting of his application was based on a clearly erroneous factual finding, and (b) the court’s award of temporary custody to the defendant, who had been "found … to be a domestic abuser" was an abuse of discretion, not in the best interests of the children, and against federal and state public policy; and (2) granting the defendant’s motion for contempt for failure to comply with a court order requiring the plaintiff to transfer physical custody of A to the defendant. We conclude that the record is inadequate to review the plaintiff's claim that the defendant failed to prove by a preponderance of the evidence that there was an immediate and present risk of physical danger or psychological harm to the children and, therefore, affirm the judgment as to that portion of the plaintiff's first claim. We dismiss the appeal as to the plaintiff's claim challenging the dispositional portion of the temporary custody order granting temporary custody to the defendant because we conclude that it is moot in light of events that have occurred since this appeal was filed. We agree, however, with the plaintiff on her claim challenging the court’s order finding her in contempt and, accordingly, reverse the judgment of contempt.

₃₂₉We begin by setting forth the relevant facts, as found by the trial court, and procedural history of this case. The parties married on July 19, 2002, and have two children, E and A. On March 9, 2022, the court, Stewart, J., dissolved the parties’ marriage on the ground that the marriage had broken down irretrievably. The parties were granted joint legal custody of their two minor children, with primary physical custody granted to the plaintiff.

The court granted the defendant in-person visitation with the minor children to be increased gradually over time. Due to a history of domestic violence and conflict throughout the marriage, the court also ordered that the children engage in individual therapy with a provider agreed upon by both parties and that the defendant and both children engage in family therapy with a specific provider. The court further provided that neither the individual therapy nor the family therapy would cease until the children’s individual psychologists released them from treatment.

On June 14, 2022, the defendant filed an application for an emergency ex parte order of custody (application) pursuant to § 46b-56f.² In support of his application, the defendant filed an affidavit averring that there ₃₃₀was an immediate and present risk of physical danger and psychological harm to the parties’ two children due to the plaintiff's inability to "facilitate the court’s orders regarding parenting and therapy" and to "control" the minor children. Specifically, the defendant averred that "[t]he minor children are declining emotionally and educationally because of the conflict and lack of access to me. The plaintiff admittedly is unable to control our minor children, in particular [A], and this poses a direct risk to the emotional and physical safety and well-being of the children. If the plaintiff's conduct continues, it is very likely that our children will continue to decline and I will not see my children ever again." The court, Truglia, J., declined to award ex parte relief but ordered that an evidentiary hearing be held on the application.

On September 22, 2022, after a three day evidentiary hearing that took place on July 19, August 16 and September 22, 2022, the court granted the defendant’s application. At that time, E was seventeen years old and A was fourteen years old. In its order granting the defendant’s application, the court stated in relevant part:

₃₃₁"The court finds that neither of the parties’ children have had any contact whatsoever with the defendant since this court entered judgment on March 9, 2022. The court finds that there is a danger of imminent psychological harm to the parties’ children due to the complete lack of contact between the children and the defendant. The court further finds that the plaintiff is unable to implement the court’s orders of March 9, 2022, regarding the children’s psychotherapy and visitation, especially with respect to [A].

"The court therefore finds good cause to grant the application. The court grants the defendant’s request that he have temporary sole legal and physical custody of [A]. Commencing Saturday, October 1, 2022, and thereafter until further order of the court, the defendant will have primary physical custody of [A] and will provide him with his primary residence.

"The plaintiff will have reasonable and flexible parenting time with [A], including telephone access, which will be at the defendant’s reasonable discretion until further order of the court.

"The court also grants the defendant sole legal custody of [E], but does not believe that changing the order of physical custody of [E] at this time would be in her best interest.

"The court vacates all orders regarding therapy set forth in the March 9, 2022 judgment. Henceforth, until further order of the court, the defendant will determine the choice of psychotherapist for each child, and the course of therapy for each child." The court continued the matter to November 9, 2022, to "receive additional evidence and make such further and additional orders as may be in the children’s best interests." The plaintiff did not appeal from the September 22, 2022 order granting the defendant’s application.

₃₃₂On October 6, 2022, the defendant filed a motion for contempt claiming that the plaintiff failed to comply with the court’s September 22, 2022 order requiring the transfer of physical custody of A to the defendant by October 1, 2022. On Novem- ber 9, 2022, the court held an evidentiary hearing on both the defendant’s June 14, 2022 emergency application for temporary custody, which it had previously granted on September 22, 2022, but continued until November 9, 2022, as well as the defendant’s October 6, 2022 motion for contempt.

At the hearing on November 9, 2022, the court heard testimony from the plaintiff and the defendant, as well as from the principal and the counselor from the children’s high school. The defendant testified that the parties had failed, after multiple attempts, to make the custody exchange of A by October 1, 2022, and that the plaintiff told him that she was trying to facilitate the custody exchange, but A did not want to go. The parties also testified about a failed attempt by the defendant to pick up A from school in order to facilitate the custody exchange, which resulted in a physical altercation between A and the defendant in the school parking lot.

The same day, the court issued an order that continued its September 22, 2022 order. The order stated: "After hearing the evidence presented, the court finds cause to continue the orders issued on September 22, 2022." The court also issued a separate order granting the defendant’s motion for contempt, finding "that the defendant ha[d] carried his burden of proof by clear and convincing evidence that the plaintiff ha[d] wilfully violated a clear order of this court." Specifically, the court found "that the plaintiff ha[d] not made every effort to comply with the court’s order of September 22, 2022, transferring custody of [A] to the defendant on or before October 1, 2022." The court warned "the plaintiff that she face[d] the risk of incarceration at the next hearing if she continue[d] to refuse to comply." The ₃₃₃court stated that "the plaintiff [would] be in violation of [the] court’s order if [A was] not residing full-time with the defendant (including overnight) on or before November 30, 2022." The court continued the defendant’s motion for contempt to November 30, 2022, to "monitor further the plaintiff's compliance with the court’s orders." During the hearing on November 30, 2022, counsel for the defendant informed the court that A had begun residing with the defendant. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the court’s November 9, 2022 order continuing the September 22, 2022 temporary custody order that granted the defendant sole legal custody of the parties’ two children and primary physical custody of A should be reversed because (a) the defendant did not prove by a preponderance of the evidence that there was an immediate and present risk of physical danger or psychological harm to the children sufficient to support his application and, therefore, the granting of his application was based on a clearly erroneous finding of fact, and (b) the court’s award of custody to the defendant, who had been "found … to be a domestic abuser," was an abuse of its discretion, not in the best interests of the children, and against federal and state public policy. We address each claim in turn.

A

[1] We first review the plaintiff's claim that the court’s November 9, 2022 order continuing the September 22, 2022 temporary custody order that granted the defendant sole legal custody of the parties’ two children...