Officially released July 30, 2019.
In Short: The court cannot, sua sponte and without request or prior notice, render orders that infringe on a party’s sole legal custody decision-making; it is error to fail to credit the testimony of family relations simply because such testimony contained hearsay where such hearsay was admitted without objection.
The Facts: The parties married in 2006, had a daughter in 2008, and Plaintiff filed for dissolution of marriage in 2010. The marriage was dissolved by agreement in 2011, with a detailed shared parenting plan. During 2015 and 2016 the trial court addressed multiple motions for modification resulting in referrals to family relations for a comprehensive evaluation and subsequent monitoring via general case management. Defendant’s access was ordered to be supervised and Plaintiff was awarded sole legal custody of the child.
In 2017 Defendant filed the motion for modification that is subject of this appeal, alleging he was denied visitation and phone communication with the child. Plaintiff filed a motion requesting an order that Defendant be required to request leave of the court before filing further motions to modify custody or access pursuant to Conn. Practice Book §25-26 and a motion for counsel fees. None of the motions addressed the child’s therapy and neither party requested termination of the therapist.
During the hearing on the pending motions, family relations read from out-of-court documents prepared by the access agency and Defendant failed to object. The trial court concluded that the child’s therapist, selected by Plaintiff, was doing “more damage than helping” and ordered termination of the therapy. The trial court did not credit family relations’ testimony about the access because she relied on hearsay. The trial court entered various other orders not relevant to this appeal. Plaintiff appealed. Defendant did not participate in the appeal.
The First Issue on Appeal was whether the court abused its discretion by terminating the child’s therapist where Defendant’s motion did not seek termination of the therapist and Plaintiff had sole legal custody of the child. The Appellate Court held that the trial court improperly terminated the child’s therapist, sua sponte, without proper notice to the parties that it intended to address the issue. § 46b-56 provides the statutory authority for modification. The court “cannot sua sponte decide a matter that has not been put in issue, either by the parties or by the court itself. Rather, it must … exercise that authority in a manner consistent with the due process requirements of fair notice and reasonable opportunity to be heard. Petrov v. Gueorguieva, 167 Conn. App. 505, 513 (2016). The Appellate Court further held that it was error to terminate the therapist where Plaintiff has sole legal custody and Defendant did not raise the issue nor seek joint legal custody.
The Second Issue on Appeal is whether the trial court improperly refused to credit the testimony of the family relations counselor, which was admitted into evidence without objection. The Appellate Court held that the subject matter of the hearsay was probative of the issue and the hearsay was not objected to, therefore it was error to fail to credit the family relations counselor’s testimony on that basis. “If the [hearsay] evidence is received without objection, it becomes part of the evidence in the case, and is usable as proof to the extent of the rational persuasive power it may have.” Cohen v. Cohen, 11 Conn. App. 241, 248 (1987).
The judgment was reversed and remanded for further proceeding. Judge Elgo concurred in part, drawing a line between refusing to credit the family relations counselor’s testimony and refusing to consider the substance of that testimony.
