Taber v. Taber

210 Conn.App. 331

269 A.3d 963

Stacy TABER

v.Michael TABER

AC 44272

Appellate Court of Connecticut.

Argued November 18, 2021

Officially released January 25, 2022

Michael Taber, self-represented, the appellant (defendant).

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

SUAREZ, J.

In this amended appeal, the self-represented defendant, Michael Taber, appeals from the order of the trial court granting the application for an emergency ex parte order of custody filed by the plaintiff, Stacy Taber. The order, in part, limited the defendant's right to visitation with the parties’ minor child. The defendant also appeals from another order of the court ordering him to pay $100 per week on a total arrearage of guardian ad litem (GAL) fees incurred in this dissolution matter and related proceedings. The defendant claims that the court (1) failed to apply the correct legal standard and failed to make requisite findings in its consideration of the application for an emergency ex parte order of custody, and (2) improperly ordered him to make payments of $100 per week on the total arrearage of GAL fees. We dismiss as moot the portion of the appeal related to the defendant's first claim. With respect to the defendant's second claim, we affirm the order of the court finding an arrearage of GAL fees and ordering him to make weekly payments on the total arrearage.¹

The following undisputed facts and procedural history are relevant to our resolution of the defendant's claims. The plaintiff and the defendant were married in 2009, and had a child together in 2010. In May, 2017, the plaintiff commenced an action seeking a judgment of dissolution. In August, 2017, the plaintiff and the defendant entered into a pendente lite agreement, which was subsequently approved and entered as an order of the court, establishing joint custody of the minor child and setting forth a parenting plan.

The August, 2017 agreement also provided for the appointment of a GAL to represent the minor child. Attorney Kathleen Nevins was appointed as the GAL in the marital dissolution and custody proceedings. Nevins was reappointed several times throughout the proceedings, most recently on January 30, 2020. The order of duties and fees related to Nevins’ January 30 appointment indicated that the parties were each responsible to pay 50 percent of the GAL fees, which were billed at an hourly rate of $150.

Although the litigation between the plaintiff and the defendant has been ongoing for several years, this appeal focuses on two specific orders of the court. The first order from which the defendant appeals was entered on August 10, 2020. Relevant to that order, on July 30, 2020, the plaintiff filed an application for an emergency ex parte order of custody requesting that the defendant's "vacation time with the child be terminated immediately." On August 10, 2020, the court, Caron, J. , held a hearing on the plaintiff's application. Following the hearing, the court entered the August 10, 2020 order, which established a new parenting plan suspending the defendant's overnight access with the minor child and ordering that the defendant "shall have parenting time every other Saturday from 10 a.m. to 7 p.m." The August 10, 2020 order further provided that the defendant was to have telephone access with the minor child "whenever [the child] wants for as long as he wants."

Thereafter, on September 14, 2020, the plaintiff filed a motion for contempt postjudgment, alleging that the defendant did not adhere to the parenting plan established by the August 10, 2020 order. On September 24, 2020, the court, Abery-Wetstone, J. , held a hearing on the motion for contempt. On the same day, the court issued a written order finding the defendant in contempt of the August 10, 2020 order. On October 1, 2020, the plaintiff filed a motion to correct in which she requested that the court correct the written September 24, 2020 order to correspond with the court's oral decision. The court granted the motion and issued a corrected order, dated October 13, 2020. The October 13, 2020 order suspended the defendant's access to the child until the defendant "attends therapy with Dr. Bruce Freedman, Ph.D., bi-weekly for a period of three months without a gap." Additionally, the court ordered that the defendant was "responsible for GAL attorney's fees in accordance with the attorney's fees affidavits filed with the court." It further ordered that the defendant begin making payments on the "total arrearage [of GAL fees] no more than thirty days from the date of [the] order." The court found that such GAL fees were reasonable and necessary.

On October 13, 2020, the GAL filed a request for a status conference regarding fees. In response to this request, the court scheduled a hearing for October 28, 2020, to address the issue of GAL fees. The court further ordered that the defendant bring to the hearing a "current and completed financial affidavit and a recent [pay stub] showing year to date earnings."

The defendant did not attend the October 28, 2020 hearing, but he did file a financial affidavit prior to the hearing. At the hearing, the GAL testified that she reviewed the financial affidavit that the defendant had submitted to the court. The GAL further testified, based on the financial affidavit, that the defendant was "making $120,000 [per year] now, as compared to January, 2020, [when the defendant] was claiming he made zero." She also testified that "since January ... [the defendant] elected to pay [various other bills] instead of the guardian ad litem [fees]." The GAL asserted that the defendant "keeps choosing not to pay the guardian ad litem fees." She ultimately asked the court to order the defendant to pay the full arrearage of the fees within fourteen days of the hearing. At the conclusion of the hearing, the court, Abery-Wetstone, J. , found, on the record, that the defendant had accrued a total arrearage of $6263.87 in GAL fees.

On October 28, 2020, the court issued a written decision in which it ordered the defendant to pay the "fee arrearage until paid in full at the rate of $100/week." The court noted at the hearing that the total fee arrearage was $6263.87 and that, at the rate of $100 per week, it would be fully paid in approximately sixty-three weeks.

On September 17, 2020, the defendant filed an appeal from the August 10, 2020 order. The defendant did not appeal from the October 13, 2020 order, nor did he amend his appeal from the August 10, 2020 order to include the subsequent October 13, 2020 order. On December 1, 2020, the defendant filed an appeal from the October 28, 2020 order. Under our rules of appellate procedure; see Practice Book § 61-9 ; we consider this subsequent appeal to have amended his initial appeal from the judgment rendered with respect to the August 10, 2020 order to include a challenge to the judgment rendered with respect to the October 28, 2020 order.²

I

First, with respect to the August 10, 2020 order, the defendant claims that the court failed to apply the correct legal standard and failed to make requisite findings in its consideration of the application for an emergency ex parte order of custody. We dismiss this portion of the appeal as moot.³

"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. ... It is axiomatic that if the issues on appeal become moot, the reviewing court loses subject matter jurisdiction to hear the appeal. ... 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 the 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." (Citation omitted; internal quotation marks omitted.) Kennedy v. Kennedy , 109 Conn. App. 591, 599, 952 A.2d 115 (2008).

"Even though the issue of mootness was not raised in the briefs or at oral argument, this court has a duty to consider it sua sponte because mootness implicates the court's subject matter jurisdiction. It is, therefore, a threshold matter to resolve. ... Subject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it. ... [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction .... The objection of want of jurisdiction may be made at any time ... [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention. ... The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings." (Citation omitted; internal quotation marks omitted.) Id., at 598–99, 952 A.2d 115.

As we discussed previously in this opinion, subsequent to the August 10, 2020 order establishing the defendant's right to...