C.D. v. C.D., 218 Conn. App. 818 (2023) (delegation of judicial authority over children’s medical records; necessary findings for deviation for earning capacity)
Officially released April 18, 2023
In Short: (1) The trial court cannot delegate authority to a third party over whether a party may have access to children’s medical records; (2) the trial court must find the presumptive guideline amount based on actual incomes and make an express finding to deviate from the guidelines for an earning capacity – it cannot skip the initial step; (3) lack of corroborating evidence will not, itself, undermine credibility assessments by the trial court for appeal; (4) publicize allegations in your case at your own risk.
The parties married 2005 and had two children, born in 2008 and 2013. In April 2018 a domestic incident resulted in the hospitalization and arrest of Defendant for, inter alia, kidnapping and assault (which charges were eventually dismissed).
Plaintiff initiated the dissolution action in May 2018 based on irretrievable breakdown, and Defendant filed an answer claiming adultery. The case was tried to Judge Maureen Murphy over four days in 2020.
The trial court issued a memorandum of decision based on irretrievable breakdown finding both parties equally responsible for the breakdown. Plaintiff was awarded sole legal and physical custody in concert with a very restrictive parenting plan. If the child received counseling, the counselor was to decide whether either parent would have access to the therapy records. Plaintiff was awarded $300 per week child support and no alimony was awarded except $1/year to secure its orders as to retirement (in case Defendant remarried and his new wife objected to the order to designate Plaintiff as alternate payee). Property orders entered including an award to Plaintiff of a portion of monies from a pending lawsuit.
Defendant appealed. Defendant claimed that the court erred when it (1) issued an articulation inconsistent with the judgment and/or a prior articulation, (2) deprived him of notice and a meaningful opportunity to be heard with respect to the court’s consideration of its pretrial observations of the parties, (3) made clearly erroneous factual findings regarding an incident between the parties, (4) entered custody orders limiting his visitation with the parties’ minor children without an evidentiary basis, (5) delegated its judicial authority to nonjudicial entities by authorizing the children’s therapeutic counselors to determine whether to provide him with access to the children’s private therapy records, and (6) entered a child support award that deviated from the child support guidelines, without first determining the presumptive support amount pursuant to the guidelines.
The Appellate Court first addressed Defendant’s claim regarding articulation and opportunity to be heard. The parties had entered a stipulation and the trial court a pendente lite order regarding two modest sums of monies released to Plaintiff to be considered in property distribution in the final judgment. The final judgment was silent as to those monies. The Appellate Court ordered articulation as to whether and how those monies were considered. The trial court articulated that it considered the prior orders and evidence from trial. The Appellate Court ordered further articulate how it considered the orders. The trial court then articulated that it accounted for those monies in its lack of award of alimony and its division of proceeds of the lawsuit. Defendant sought to argue the trial court issued conflicting statements as to whether the trial court considered only the evidence from trial or whether it also considered its observation of the parties at pendente lite hearings. The Appellate Court held that there was no conflict as it was self-evident that the trial court had observed the pendente lite proceedings, and it was not required to alert the Defendant to the fact that it had done so.
The Appellate Court next addressed Defendant’s claims as to erroneous findings of fact regarding the April 2018 incident. The parties offered conflicting testimony regarding the event and the trial court had found Plaintiff credible and Defendant not credible. The trial court found Defendant primarily responsible for the incident. Defendant cited exhibits and evidence that failed to corroborate certain aspects of Plaintiff’s testimony. The Appellate Court noted that lack of corroborating evidence does not impugn the trial court’s credibility determinations and found that the standard of clearly erroneous had not been reached.
The Appellate Court next addressed the custody issues raised by Defendant on appeal. Defendant first argued that the evidence in the record did not support the “draconian limitations” imposed on his access. The Appellate Court noted that CGS § 46b-56 governs via the child’s best interests standard and the sixteen non-exclusive list of factors cited therein, and cited the abuse of discretion standard.
The GAL had recommended that Plaintiff have sole legal and physical custody because she believed that Plaintiff had been primary caregiver since the dissolution began and the parties were incapable of communicating effectively to ensure the children’s needs were being met. The GAL recommended a very restrictive access schedule including elements of supervision and reunification. There was evidence that Defendant was not concerned about shielding the children from information about the April 2018 incident and had publicized such information via Facebook and a radio interview. Defendant testified that he believed Plaintiff had sought to poison him and have him killed by the police. The trial court found that Plaintiff was more capable of nurturing the relationship with the non-custodial parent and that the parties were unable to co-parent. The trial court found that Defendant currently lacked the ability to take care of the children by putting their welfare first. The Appellate Court held that these findings were not clearly erroneous based on the record.
The Appellate Court addressed the delegation issue under plenary review. CGS § 46b-56(g) authorizes only the trial court to limit a non-custodial parent’s access to a child’s health records. The Appellate Court found that this delegation was improper in light of the statute.
Lastly, the Appellate Court addressed the trial court’s $300/week child support award without first making a finding of the presumptive amount per the guidelines. The trial court failed to make a statement of the presumptive amount and explanation of how application of the deviation criteria justified a variance. The trial court made a finding based on an earning capacity without first doing so based on actual incomes, however, earning capacity is a deviation criteria. The Appellate Court found that this skipping of a necessary step constituted error. The Appellate Court then examined the issue under the mosaic doctrine and found that this order was severable as it did not cause question of the court’s other financial orders, excepting those related to child support such as division of unreimbursed medical expenses.
The Appellate Court reversed only as to the child support orders and the order delegating authority over therapeutic records and remanded to address those issues. This appears a very hollow victory for Defendant. The court on remand could still end up issuing the same (or similar) child support award so long as it followed the proper steps and could still end up denying Defendant access to medical records of the children, so long as it did not delegate authority in so doing.
