Lehane v. Murray, 215 Conn. App. 305 (2022) (delegation of authority to a party; psychological evaluation; dependency exemption is property)
Officially released September 20, 2022
In Short: (1) The trial court did not commit improper delegation of judicial authority by providing discretion to Father to “alter, change or modify” Mother’s access schedule with the minor child because the discretion was limited in scope, did not permit a reduction or elimination of Mother’s access, and was justified by the facts, (2) the trial court erred by ordering a psychological evaluation of Mother when nothing further was pending, and (3) the assignment of a dependency exemption is an element of property distribution, which was made non-modifiable by the separation agreement.
The parties were divorced in 2017 by separation agreement. The separation agreement provided joint legal custody of the four-year-old son who resided primarily with Mother with a two-week rotating parenting plan. The parties quickly engaged in constant post-judgment litigation which culminated in a fifteen-day evidentiary hearing before Judge Diana on 24 post-judgment motions including motions in which each party sought sole legal custody of the child.
In 2021 the trial court issued a memorandum of decision awarding Father sole legal and physical custody of the child and finding Mother in contempt for “systematic and continuous efforts to interfere with the minor child’s natural love and affection” for Father, among other things.
The trial court awarded Mother access every other weekend and every Wednesday overnight, but provided that Father could change or modify the schedule, the location, and the date and the time of exchanges. Mother was awarded a very limited holiday schedule, with any expansion subject to Father’s agreement.
Mother was ordered to immediately undergo a psychological evaluation and to provide a copy of the evaluation to Father. Mother was ordered to follow all recommendations regarding treatment consultations set forth by the evaluator.
The trial court modified child support, ordering that Mother pay child support of $122/week consistent with the child support guidelines and that Father be entitled to claim as a dependent for income tax purposes.
Mother appealed, claiming that the trial court (1) improperly delegated its judicial authority to a nonjudicial party by giving [Father] the authority to “alter, change or modify” her visitation schedule, (2) exceeded its authority by ordering her to submit to a psychological evaluation and to provide the results to [Father], and (3) improperly awarded [Father] the right to claim the child as a dependent for income tax purposes where the dissolution judgment included a clear and unambiguous provision awarding [Mother] the nonmodifiable right to do so.
Mother’s first claim on appeal was that the trial court improperly delegated its judicial authority to a nonjudicial party by giving Father the authority to “alter, change or modify” her visitation schedule.
The Appellate Court noted that, unlike most review of orders of custody and visitation, the question of whether a court improperly delegated its judicial authority is a question of law subject to plenary review. The Appellate Court summarized the law prohibiting the trial court from delegating its judicial authority, noting that the trial court may rely on recommendations but may not be bound by them.
The Appellate Court quoted the trial court at length regarding its factual findings, including, in part:
“The evidence in this case is abundantly overwhelming and uncontroverted, as the parties have preserved a written and audiovisual record. The court finds [Father] to be credible and [Mother] without any credibility. [Mother’s] disposition is defiant, manipulative and misguided; she is unwilling to accept and support DCF’s findings and the minor child’s having a relationship with [Father]. She brazenly misrepresents facts, [and] violates and makes up court orders at will to support her long-standing desire to undermine [Father’s] relationship with their son. She is found to be emotionally uninsightful regarding [Father] and the minor child’s relationship. She actively coaches the minor child by telling him what to say and, therefore, she is incapable of meeting his needs. As such, the court finds that there has been a material change in circumstances since the date of judgment regarding custody between the parties’ minor child and [Mother]. The court further finds that it is in the best interest of the minor child to modify [Mother’s] access/visitation schedule.”
The Appellate Court disagreed with the contention that there was improper delegation in permitting Father to “alter, change or modify” the visitation schedule, finding that the order permitted Father to modify the “schedule” not the “right” to visitation. The Appellate Court found that Father was governed by parameters limiting his exercise of discretion, and Father was not permitted to reduce, suspend or terminate access. The Appellate Court distinguished this order from an improper delegation allowing a therapist to “dictate” the scope of contact. The Appellate Court found that the award of limited discretion was justified and necessary to resolve conflict due to Mother’s obstructionist conduct.
Mother’s second claim on appeal was that the trial court exceeded its authority by ordering Mother to submit to a psychological evaluation and to provide the results to Father. C.G.S. §§ 46b-6 and 46b-3 provide authority to the court to order investigations by mental health professionals. However, the Appellate Court noted, such authority is restricted to pending matters to assist the trial court in disposing of the issues presented. Here, the trial court did not order the evaluation to help it decide the issue, but after all pending litigation had been disposed. The Appellate Court reversed on this point based on abuse of discretion.
Mother’s third claim on appeal was that the trial court improperly awarded Father the right to claim the child as a dependent for income tax purposes where the dissolution judgment included a clear and unambiguous provision awarding Mother the nonmodifiable right to do so.
The Appellate Court found that the separation agreement to be non-modifiable as to the assignment of the dependency exemption. The Appellate Court reversed on this point, finding that the trial court erred by modifying a non-modifiable provision of the judgment. In making this finding, the Appellate Court determined that the dependency exemption was not a form of child support, but a form of property division pursuant to C.G.S. § 46b-81, based on the language of the separation agreement.
The Judgment was affirmed in all respects except as to the modification of the dependency exemption and the order for psychological evaluation.