The defendant appealed from the judgment of the trial court awarding sole
legal and physical custody of the parties’ minor child, O, to the plaintiff
and imposing certain restrictions on his visitation with O. After the
plaintiff initiated the underlying marital dissolution action, the parties
filed numerous motions with the court, and, given the volume and nature
of the motions, the court ordered that neither party could file any
additional motions without first requesting leave from the court, with
an exception for ex parte emergency requests approved by the guardian
ad litem. The parties thereafter entered into an agreement to dissolve
their marriage, which indicated that, although they agreed upon the
division of their marital property and debt and the issue of alimony,
they had been unable to resolve issues related to custody, access and
care of O and that those issues should be resolved by the court in
subsequent proceedings after completion of a custody evaluation by S,
a clinical psychologist. The court subsequently rendered a judgment of
dissolution of marriage that incorporated the parties’ agreement. S filed
her custody evaluation with the court, and the custody hearing was
scheduled to commence in March, 2020, but, due to the COVID-19 pan-
demic, it did not go forward as scheduled. When the trial ultimately
commenced, the court heard testimony from L, a social worker from
the Department of Children and Families, over repeated objections by
the defendant. L testified that she had investigated an anonymous call
made to the department concerning the plaintiff’s purported physical
removal of O from a baseball game in which he was participating.
During L’s testimony, a redacted version of the relevant department
investigation protocol was admitted into evidence as a full exhibit. L
testified that her investigation included, among other things, interviews
with O and conversations with G, O’s former therapist, and that, as a
result of her investigation, the department discovered no concerns with
the plaintiff’s actions during the baseball game incident or her ability
to parent O, but the department did develop concerns about O’s emo-
tional well-being with respect to the defendant. L also testified that the
department subsequently substantiated emotional neglect of O by the
defendant, and, in response to questions from the defendant on cross-
examination, that she had reviewed an affidavit sworn to by G and that
G’s opinion, both as expressed in the affidavit and in interviews, was
relied on by the department in its investigation. L’s testimony did not
disclose the actual contents of G’s affidavit. The defendant later
attempted to have a copy of G’s affidavit admitted into evidence, but
the plaintiff objected on hearsay grounds, and it was marked for identifi-
cation purposes only. Several days into the trial, the defendant made
an oral motion for a continuance, arguing that he would not go forward
upon medical advice and indicating that, inter alia, his blood pressure
that morning was at unacceptable levels and that he was disabled as a
result of an auto accident. The court denied the defendant’s oral motion,
noting that he had filed several motions for continuance within the
previous few days citing other reasons, all of which were denied. Later
that day, after the defendant provided the court with a letter from his
medical provider that indicated that the defendant suffered from angina
and asked the court to adjust the trial schedule in an attempt to reduce
the defendant’s stress, the defendant indicated to the court that his
stress was largely due to not having time between hearing dates to
eat properly and prepare his case. The defendant did not refer to the
Americans with Disabilities Act (ADA) (42 U.S.C. § 12101 et seq.) or
clarify that he was seeking an accommodation under the ADA. The court
reconsidered the defendant’s oral motion for a continuance, stating on
the record that it was going to adjust the court’s schedule to accommo-
date the defendant’s health and to reduce his stress, and later issued
a written order granting the defendant’s motion for continuance and
indicating that the remaining days of trial would continue in half day
morning sessions. Approximately ten half day morning sessions were
held. Thereafter, the court scheduled additional sessions for alternating
full days. The defendant, with permission, filed a motion for a scheduling
order in which he argued that the court previously had granted him an
ADA accommodation limiting trial dates to half days and stating that
the full day trial dates scheduled by the court were contrary to his
medical provider’s advice and contrary to the existing order of accommo-
dation. The defendant requested that the court reschedule further ses-
sions to half day morning sessions. The court denied the motion for a
scheduling order on the record, and the next day the defendant filed a
motion in which he indicated that he had filed a grievance with the
ADA administrator for the Connecticut Judicial Branch. He asked the
court to stay any further full day proceedings until the grievance matter
was resolved, although he indicated that he was able to go forward with
half day morning sessions pursuant to the original accommodation. The
court denied the motion, and, at the next day’s hearing, the defendant
made an oral motion for a continuance that the court denied without
prejudice to the defendant producing documentation from his physician
regarding his health status. The defendant informed the court that he
was not proceeding with his case and abruptly left the courthouse and
did not return. The defendant appeared for the next scheduled court
date. Before the lunch recess, the defendant informed the court on the
record that he was not going to return to court for a full day trial until
the court modified its order. The court informed the parties that the
hearing would resume at 2 p.m. unless a written motion for a continuance
was filed and granted. The defendant neither filed a motion for a continu-
ance nor appeared for the afternoon session. Several days later, the
defendant again appeared for the hearing in the morning but again failed
to appear for the afternoon session and did not file a motion for a
continuance. On the basis of the defendant’s failure to appear, the court
determined that the defendant had failed to present his testimony and
evidence as set forth in the court’s scheduling order, and, therefore, the
court determined that the defendant’s case was concluded. The court
also denied all of the defendant’s pending motions with prejudice for
failure to present any testimony, evidence, and argument to the court.
The plaintiff was permitted to provide rebuttal testimony. In the court’s
memorandum of decision, it set forth detailed findings with respect to
the defendant’s behavior generally, his parenting skills, and his difficult
relationship with O, which contrasted with the healthy relationship that
the court found O had with the plaintiff. The court noted in some detail
the defendant’s medical diagnosis by two separate doctors of narcissistic
personality disorder and his failure to make or maintain any significant
progress through treatment. The court ultimately awarded full legal and
physical custody of O to the plaintiff. With respect to parenting time,
the court ordered that the defendant was entitled to weekly supervised
access to O via a third-party therapeutic supervised visitation agency,
with the cost paid by the defendant. However, the defendant’s parenting
access would begin only after the defendant provided proof to the
plaintiff and/or her counsel that he had engaged a clinician to address
his narcissistic personality disorder, and such proof was required to be
updated on a quarterly basis. The court also issued orders limiting the
defendant’s right to seek modification or expansion of his parenting
access. The court further ordered that the defendant could not partici-
pate in any of the child’s extracurricular and sporting activities until
he satisfied the conditions for seeking modification/expansion of the
parenting access orders. Held:
1. The defendant’s claims that the trial court violated his rights under the
ADA were unavailing, this court having determined that, even assuming
for purposes of argument that the defendant had a disability that entitled
him to a reasonable accommodation under the ADA as a matter of
procedural due process, he in fact received such accommodation and
failed to demonstrate otherwise or to point to any evidence in the record
from which it reasonably could be concluded that any of the trial court’s
adverse actions or rulings in the present matter were the product of
retaliatory animus rather than a proper exercise of judicial discretion:
a. The defendant could not prevail on his claim that the trial court
improperly refused to provide him with the same medical accommoda-
tion granted to him earlier in the trial, as he did not make a formal ADA
request prior to his oral motion to the court, and the letter from his
medical provider did not suggest any particular accommodation but only
recommended that the court adjust the hearing schedule, which at that
time consisted of back-to-back full day hearings, so as to reduce the
defendant’s stress; moreover, nothing in the language of the court’s order
limiting the length of the remaining then scheduled hearing dates to half
days rendered that accommodation nonmodifiable in the future, and, to
the contrary, it could be reasonably inferred from the court’s requirement
that the defendant keep it apprised of any changes in his medical condi-
tion that the accommodation was never intended to be permanent or to
bind future courts in the event of a change in relevant circumstances;
furthermore, the defendant provided no authority that stands for the
proposition that once a public entity has provided an accommodation
it is not permitted to adjust it under appropriate circumstances or to
provide a substitute accommodation, and, in the present case, when it
became clear to the court that continuing with half day sessions would
be untenable and interfere with docket management and the fair adminis-
tration of justice, it was well within the court’s discretion to substitute
the prior accommodation for one that was equally reasonable, and pro-
ceeding with full day hearings on nonconsecutive days still allowed time
for the defendant to rest and recover from the prior day’s proceedings
and reduced the stress of preparing for the next day, which was fully
in accord with the recommendation of the defendant’s medical provider
and was, in fact, the exact accommodation the defendant originally
requested.
b. The defendant could not prevail on his claim that the trial court
retaliated against him for exercising his rights under the ADA by denying
motions and prematurely resting his case; the defendant failed to point
to anything in the record that would support his assertion that the trial
court’s actions were made with discriminatory animus rather than, as
reflected in the record, as a response to the defendant’s failure to appear,
which was a reasonable and nondiscriminatory basis for the court’s
actions for which the defendant failed to account.
2. The trial court properly considered the defendant’s mental health diagnosis
as a basis for determining custody and setting conditions regarding
visitation: pursuant to the statute (§ 46b-56) governing orders regarding
the custody and care of minor children in dissolution actions, one of
the factors that a court may consider is the mental and physical health
of all individuals involved, except that a disability of a proposed custodial
parent, in and of itself, shall not be determinative of custody unless the
proposed custodial arrangement is not in the best interest of the child,
and, in the present case, the court did not award the plaintiff sole custody
of the parties’ child solely on the basis of the defendant’s mental health
diagnosis but, rather, it was but one of a number of reasons provided
by the court for its decision and, therefore, was not in and of itself
determinative of the court’s custody order; moreover, the court’s focus
was not on the defendant’s mental health per se, but, rather, the court
identified that it was concerned by the defendant’s failure to make
reasonable progress to address its harmful effect on his parenting of
O; furthermore, the defendant failed to demonstrate that the court made
any clearly erroneous factual findings regarding his mental health or to
point to anything in the record that would support his assertions that
the court’s consideration of his mental health diagnosis amounted to
retaliation or disability discrimination.
3. The trial court did not abuse its discretion by considering the custody
evaluation prepared by S in determining the best interest of O: the court
did not rely solely on S’s custody evaluation but, rather, it had ample
current evidence before it of the defendant’s present ability to parent,
and, although the court accepted S’s evaluation into evidence, it consid-
ered and evaluated it in light of the updated testimony from S and others,
as well as evidence submitted by both parties regarding the child’s and
parents’ current situations; moreover, although S’s custody evaluation
may have had some limitations due to the delay of the courts being
closed due to COVID-19, this went solely to the weight the trial judge
gave the report rather than to its admissibility.
4. The defendant could not prevail on his claim that the trial court improperly
required the parties to request leave of the court before filing trial and
pretrial motions and improperly denied multiple such requests: although
the defendant relied on language from Ahneman v. Ahneman (243 Conn.
471), in which the Supreme Court held that the trial court lacked the
discretion to refuse to rule on certain motions filed by the defendant
in that case, there was nothing in the decision in Ahneman curtailing
a trial court’s exercise of its considerable discretion over its docket or
expressly barring the type of prohibitory order issued in the present
case, and, to the contrary, the court in Ahneman acknowledged that
exceptions to the general rule that a trial court must consider and decide
on a reasonably prompt basis all motions properly placed before it may
exist in an extreme, compelling situation; moreover, several years after
the Ahneman decision, this court in Strobel v. Strobel (92 Conn. App.
662) opined that a prohibitory order essentially identical to the one at
issue in the present case constituted a praiseworthy attempt by the trial
judge to limit the parties’ barrages of repetitive and abusive motions,
and this court found that the record in the present case reflected no
less a compelling reason for an order attempting to curtail the flood of
repetitive and oftentimes frivolous motions filed in this matter.
5. The defendant could not prevail on his claim that the trial court improperly
awarded sole custody of O to the plaintiff even though the parties had
always shared custody and the plaintiff made no showing of a change of
circumstances; in the present case, the parties shared legal and physical
custody of O until the time of the dissolution of marriage, and whether
such joint custody should continue in the future was precisely the issue
that the parties could not agree upon in their separation agreement and
left for the court in the present action to decide, and, accordingly, the
case law cited by the defendant holding that courts lack the authority
to modify existing custody orders in the absence of a material change
of circumstances was inapposite to the facts of this case.
6. The defendant could not prevail on his claim that the trial court errone-
ously found that the defendant had narcissistic personality disorder;
this court was not left with a definite and firm conviction that any
mistake was made with respect to the trial court’s challenged findings,
as the evidence in the record, including testimony from S and her custody
evaluation, adequately supported the court’s findings that the defendant
had been diagnosed with narcissistic personality disorder and that this
diagnosis constituted a long-term pattern of maladaptive behavior that
was not amenable to treatment.
7. The defendant could not prevail on his evidentiary claims that the trial
court improperly admitted certain testimony of L and improperly admit-
ted and relied on an affidavit of G: on the basis of this court’s thorough
review of the transcripts of L’s testimony and the many objections raised
during her testimony by the defendant, this court concluded that the
defendant failed to demonstrate how the trial court abused its broad
discretion with respect to the admission of L’s testimony; moreover, to
the extent that the defendant attempted to raise additional objections
that were not raised at trial, this court declined to review these unpre-
served aspects of his claim, and, with respect to the objections he did
raise at trial, this court concluded that the trial court properly ruled on
them in the manner that it did for the reasons provided and that further
explication by this court was unwarranted; furthermore, there was noth-
ing in the record from which to conclude that the trial court improperly
relied on G’s affidavit in awarding custody to the plaintiff, as the court
never stated in its memorandum of decision that it relied on G’s affidavit,
which was not in evidence, and the few references to G by the court
in its memorandum of decision were incidental and did not reflect any
error in the court’s reasoning.
Argued November 13, 2023—officially released February 20, 2024 Procedural History