Officially released October 22, 2019.
In Short: (1) There is a vacuum as to custody and parenting orders between the date of a decision being issued and the twenty-day appeal period unless the trial court issues a “protective order” regarding that span of time; (2) the trial court may delegate certain powers to a GAL post-judgment so long as it does not delegate its decisional authority.
The Background Facts: The parties were never married and have one child, born in 2010. Father filed a custody application in 2012.
At a status conference in 2012, Father’s counsel recommended several attorneys to serve as GAL and Mother’s counsel agreed that one of those would be an acceptable choice if a GAL were appointed, but opposed the appointment of any GAL. The court orally appointed that attorney as GAL at the conclusion of the status conference but did not specify duties or length of appointment.
The parties entered into various pendente lite agreements, including for joint legal custody and division of tuition for private school. Mother filed a motion for contempt, pendente lite for Father’s alleged unilateral reenrollment of the child in private school and non-payment of unreimbursed expenses. Father filed a motion to modify the pendente lite support obligations.
The trial court held a sixteen day trial on the custody application between February 2015 and October 2016. Mother sought reimbursement for substantial child care expenses, medical insurance premiums and tuition.
The trial court found that Father had rebutted, by a preponderance of the evidence, the presumption of joint legal custody under § 46b-56a (applicable due to the pendente lite agreement of joint legal custody), entered orders of parenting and support and entered a “protective order” pending appeal that “secures” the order of sole custody to Father and the parenting orders. The trial court ordered that the child remain in private school and divided costs through twelfth grade, but determined that there was insufficient evidence presented to it for an educational support order under § 46b-56c. The trial court ordered that the GAL continue to serve until further order of the court and serve as mediator as to any issue before the parties return to court with the costs to be equally shared, subject to reimbursement to the other party by the non-prevailing party in court on such issue. The trial court did not make an express finding that the appointment was in the child’s best interests as required by § 46b-54(a) nor did it comply with § 46b-12(a) and (c). The trial court delegated authority to the GAL to select a parenting coordinator in the event that the court’s choice was unavailable. The trial court ruled on certain pendente lite financial motions and did not making findings or orders on others or claimed arrearages.
Mother appealed claiming the trial court improperly (1) delegated decision making authority to the GAL, (2) ordered that the prevailing party in any postjudgment dispute be reimbursed his/her share of the GAL’s fees, (3) appointed the GAL without complying with the requirements of §§ 46b-54 and 46b-12, (4) issued a protective order sua sponte, (5) ordered the parties to enroll the child in private schooling and share the cost, (6) relied on unsupported net income figures on the child support guideline worksheet prepared by the judicial branch, and (7) retroactively modified a pendente lite order by forgiving the Father’s support arrearage.
Regarding delegation of judicial authority, the standard of review is plenary. “A court improperly delegates its judicial authority … when [a non-judicial entity] is given authority to issue orders that affect the parties or children.” Kyle S. v. Jayne K., 182 Conn. App. 353, 371-72 (2018). Mother argued that the authority to hold the child’s passport, access communications, receive copies of the child’s phone bill, investigate facts, make recommendations, mediate disputes and select the coparenting counselor constituted improper delegation. The Appellate Court held that this was not improper delegation as it did not permit the GAL to issue orders that affect the parties or the child. The co-parenting counsel has no decisional authority and so decision-making as to that appointment is not improper delegation.
Regarding the order of GAL fee reimbursement to the prevailing party, the Appellate Court held that this was not improper delegation, but it was improper because the authority to award fees in a custody matter is bound by statute and case law. Connecticut follows the American Rule and § 46b-62 provides the exception from that rule for GAL fees. The trial court’s order was not supported by the American Rule nor the statutory authority as any future fees and financial capabilities were purely speculative. The trial court abused its discretion in issuing that order.
Regarding the appointment of the GAL without complying with statutory requirements, the Appellate Court held that the claim was mooted by subsequent superseding orders of the court. After the judgment, the trial court held that the appeal stayed the order appointing the GAL, and in response to a post-judgment motion re-appointed the GAL while complying with the statutory requirements.
Regarding the “protective order” as to the GAL’s appointment, Yontef v. Yontef, 185 Conn. 275 (1981) provides that pendente lite custody orders do not survive the rendition of a judgment and that the judgment itself is automatically stayed under Practice Book § 61-11 for twenty days. Thus, a trial court may enter protective orders sua sponte to ensure an orderly transition. The Appellate Court held this was an appropriate Yontef-inspired order and not abuse of discretion.
Regarding the order that the child continue private schooling and the parties divide such costs, Mother argued that there was no supporting evidence that the school was in the child’s best interests nor regarding the cost of such school. “[C]ourts have the power to direct one or both parents to pay for private schooling, if the circumstances warrant. It is a matter to be determined in the sound discretion of the court on consideration of the totality of the circumstances including the financial ability of the parties, the availability of public schools, the schools attended by the children prior to the divorce and the special needs and general welfare of the children.” Carroll v. Carroll, 55 Conn. App. 18, 24 (1999). “[T]he right of the custodial parent to make educational choices is … an insufficient basis, absent a showing of special need or some other compelling justification, for increasing the support obligation of the noncustodial parent who genuinely doubts the value of the program that he [or she] is being asked to underwrite. Id, 25. The Appellate Court held that both parties supported the private schooling, but simply disagreed as to payment, and the cost of the school was introduced through financial affidavits. However, the trial court abused its discretion in ordering the child to divide costs beyond eighth grade, where there was no evidence regarding such cost.
The standard of review regarding application of the child support guidelines is abuse of discretion. Mother alleged that the net income figures relied upon were unsupported by the record. The Appellate Court held that there was sufficient evidence to support the figures used and there was no abuse of discretion.
The Appellate Court found the record insufficient for review as to the claim that failing or order reimbursement for certain pendente lite expenses constituted an improper retroactive order. In a custody action, the pendente lite orders do not merge with the judgment. There was no decision on the docket and no explanation for failure to rule. “[A]lthough we are mindful of the court’s responsibility to timely respond to the parties’ filings in pending matters, the avalanche of filings in this matter renders it nearly impossible for the court to keep pace without a singular dedication to this matter.”
The appeal was dismissed with regard to improper appointment of the GAL (due to mootness described above). The judgment was reversed and remanded for further proceedings as to (1) the order of reimbursement of GAL fees to the prevailing party post-judgment, and (2) the enrollment in private school and division of tuition through high school. The Judgment was affirmed in all other respects.
