Morera v. Thurber

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HECTOR G. MORERA v. STEPHENIE C. THURBER
(AC 40176)
Elgo, Bright and Flynn, Js.

Syllabus

The plaintiff, whose marriage to the defendant previously had been dis-
solved, appealed to this court from the judgment of the trial court
dismissing his motion for modification of the court’s visitation orders
and requesting court assistance in reunifying him with his teenaged
daughter. On the day of a scheduled status conference regarding the
motion for modification, the court and the parties received a report
from a reunification therapist who had been appointed by the court.
During the status conference, the plaintiff stated that he disagreed with
the report and wanted to present his own evidence to dispute it, and
complained that he was given only two hours to review the report before
the status conference was scheduled to begin. The trial court stated that
it had reviewed the report and, subsequently, dismissed the plaintiff’s
motion, determining that ordering the plaintiff and the daughter to take
part in additional therapy would alienate the daughter further. On appeal,
the plaintiff claimed that the court violated his right to due process of
law by improperly dismissing his motion without an evidentiary hearing.
Held that the trial court improperly denied the plaintiff the opportunity,
at a properly noticed evidentiary hearing, to present his own evidence
and to cross-examine the court-appointed reunification therapist; given
that the plaintiff informed the court that he disputed the report and that
he wanted to present evidence to support his position, and that he was
given less than two hours to review the report on which the court relied
in ruling on the motion for modification, the court did not offer the
plaintiff an adequate opportunity to review the therapist’s report and
to present evidence in opposition to the report and in favor of the
plaintiff’s own position before the court ruled.
Argued October 11, 2018—officially released February 12, 2019

Procedural History

Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Hartford and tried to the court, Carbonneau,
J.; judgment dissolving the marriage in accordance with
the parties’ agreement and granting certain other relief;
thereafter, the court, Simo´n, J., granted the plaintiff’s
request for leave to file a motion to modify; subse-
quently, the court, Simo´n, J., dismissed the plaintiff’s
motion to modify, and the plaintiff appealed to this
court. Reversed; further proceedings.
Hector G. Morera, self-represented, the appellant
(plaintiff).
Opinion

BRIGHT, J. The plaintiff, Hector G. Morera, appeals
from the judgment of the trial court dismissing his
motion for modification of the court’s visitation orders,
and requesting court assistance in reunifying him with
the teenaged daughter he shares with his former wife,
the defendant, Stephenie C. Thurber.1 On appeal, the
plaintiff claims that the court violated his right to due
process of law by improperly dismissing his motion
without giving him the benefit of an evidentiary hearing.
We agree and, accordingly, reverse the judgment of the
trial court.
The following facts and procedural history, which we
have ascertained from the record, are relevant to this
appeal. The court dissolved the marriage of the parties
on June 18, 2012, ordered that the defendant would
have sole legal and physical custody of the parties’
two minor children, a son and a daughter, and entered
detailed parental access orders. The court also ordered
the defendant to consult with the plaintiff on all material
issues concerning the children, and the parties were
ordered to obtain the assistance of a parenting coordi-
nator. On May 17, 2013, the defendant filed a motion
to modify the orders contained in the dissolution judg-
ment. Following an evidentiary hearing, the court, in
an October 10, 2013 oral ruling, granted the defendant’s
motion for modification and ordered that ‘‘[a]ll access
with the children by [the plaintiff] shall be as directed
and supervised by the Klingberg Institute until written
agreement of the parties with the input of Klingberg’s
experts or further order of the court.’’ The court also
ordered that ‘‘[n]either party shall file any motion with
this court without first seeking and receiving the per-
mission of the presiding judge.’’ Later, the court further
clarified that its order was meant to encompass a reuni-
fication program through the Klingberg Institute and
that the matter was referred to Family Relations with
direction to implement that order.2
On February 25, 2016, the plaintiff filed a request for
leave to file a motion for modification, along with a
motion for modification in which he sought an order
for reunification therapy with his daughter. The defen-
dant did not file an objection. On October 13, 2016, the
court granted the plaintiff’s request for leave, referred
the matter to Family Services with specific direction,
and continued the matter until November 30, 2016.
On November 30, 2016, the court ordered, inter alia,
that the parties each submit the names of three reunifi-
cation therapists for the court’s consideration, which
they did. The court, however, was dissatisfied with the
names submitted by the parties, and, on December 15,
2016, it appointed Dr. Bruce Freedman as the reunifica-
tion therapist.
The parties again appeared before the court at a Feb-
ruary 15, 2017 status conference.3 The court and the
parties each had received a copy of Dr. Freedman’s
report earlier that day. During the status conference,
the court stated that it had reviewed the report, and
that it did not know what more it could do to help with
the plaintiff’s reunification with his daughter, short of
physically forcing the daughter to participate in coun-
selling or visitation with the plaintiff. The plaintiff stated
that he understood that there were consequences to
his pursuing this matter further, but that he believed
he needed to proceed because his ‘‘daughter deserves
a father and that overweighs [any] negatives . . . .’’
The plaintiff also suggested to the court that it could
order him and his daughter to participate in an intensive
seminar with Linda J. Gottlieb, a licensed marriage and
family therapist. The plaintiff then told the court that
he disputed the contents of Dr. Freedman’s report and
that he had evidence he would like to present to the
court. He also complained that he had been given only
two hours to review Dr. Freedman’s report before the
status conference.
The court explained that it understood the loss felt by
the plaintiff, but that it believed any further interference
would alienate the daughter further. The court then
ruled: ‘‘[h]aving said that, having taken this under care-
ful consideration and having spent . . . the last two
years pursuing avenues of redress regarding the rela-
tionships between [the plaintiff] and his children, the
court sees no cure for the current status of the relation-
ship between father and his daughter that this court
can in any way heal. And, I’m going [to], at this time,
dismiss the motion for modification as to the daugh-
ter.’’4 This appeal followed.
On appeal, the plaintiff claims that the court violated
his right to due process of law by improperly dismissing
his motion without giving him the benefit of an eviden-
tiary hearing. He argues that he had approximately two
hours to review Dr. Freedman’s report before the status
conference, that he notified the court that he disagreed
with the report, and that he told the court that he wanted
to present his own evidence. He contends that the fail-
ure of the court to schedule and conduct an evidentiary
hearing under such circumstances, constitutes a viola-
tion of his right to due process of law under the federal
and state constitutions. We agree.
‘‘A fundamental premise of due process is that a court
cannot adjudicate any matter unless the parties have
been given a reasonable opportunity to be heard on the
issues involved. . . . Generally, when the exercise of
the court’s discretion depends on issues of fact which
are disputed, due process requires that a trial-like hear-
ing be held, in which an opportunity is provided to
present evidence and to cross-examine adverse wit-
nesses. . . . It is a fundamental tenet of due process
of law as guaranteed by the fourteenth amendment to
the United States constitution and article first, § 10, of
the Connecticut constitution that persons whose . . .
rights will be affected by a court’s decision are entitled
to be heard at a meaningful time and in a meaningful
manner. . . . Where a party is not afforded an opportu-
nity to subject the factual determinations underlying
the trial court’s decision to the crucible of meaningful
adversarial testing, an order cannot be sustained.’’
(Internal quotation marks omitted.) Bruno v. Bruno,
132 Conn. App. 339, 350–51, 31 A.3d 860 (2011); see
also Kelly v. Kelly, 54 Conn. App. 50, 58, 732 A.2d 808
(1999) (in protracted dissolution case, where parties
were hostile toward each other, trial court’s ruling
ordering resumption of family therapy with particular
therapist was improper because court failed to hold
evidentiary hearing at which plaintiff could present evi-
dence in opposition).
In the present case, the plaintiff was given less than
two hours to review the report on which the court relied
in ruling on his motion for modification. The plaintiff
informed the court that he disputed the report and
that he wanted to present evidence to support his own
position. The court did not offer the plaintiff an ade-
quate opportunity to review Dr. Freedman’s report and
to present evidence in opposition to the report and in
favor of the plaintiff’s own position before the court
ruled. We conclude, therefore, that the plaintiff was
denied the opportunity, at a properly noticed eviden-
tiary hearing, to present his own evidence and to cross-
examine Dr. Freedman.
The judgment is reversed and the case is remanded
for further proceedings according to law.
In this opinion the other judges concurred.
1
The defendant has not filed a brief in this appeal.
2
Additional proceedings have taken place in this case, which, in part,
resulted in the unification of the plaintiff and the parties’ minor son. Because
these proceedings are not relevant to the present case, they are not discussed
herein. For further background information see Morera v. Thurber, 162
Conn. App. 261, 131 A.3d 155 (2016).
3
There is a discrepancy between the date set forth on the front of the
transcript, February 11, 2017, which was a Saturday, and the date set forth
on the certification page of the transcript, February 15, 2017, which was a
Wednesday. It does appear that the status conference was held on February
15, 2017, and that the date listed on the front page of the transcript is a
scrivener’s error.
4
We note that the court’s form of judgment also was improper. Because
it ruled on the merits of the motion, the form of judgment should have been
a denial rather than a dismissal.