Dufresne v. Dufresne

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DUFRESNE v. DUFRESNE—CONCURRENCE

ELGO, J., concurring in part and concurring in the
judgment. I agree with and join part I of the majority
opinion. I do not agree that the trial court abused its
discretion by failing to credit the testimony of the family
relations counselor. Rather, I believe the trial court
committed reversible error in refusing to consider the
substance of that testimony. Accordingly, I respectfully
concur with the result reached in part II of the major-
ity opinion.
The issue before this court is a purely evidentiary
one regarding the testimony of Nicole Stutz, a family
relations counselor. At the hearing in question, Stutz
offered testimony regarding supervised visitation
between the defendant, Gerald E. Dufresne, Jr., and his
minor daughter that was conducted in conjunction with
the Access Agency, and the Transitions in Parenting
program (TIP), following the trial court’s referral of the
matter to the family services unit of the Court Support
Services Division of the Judicial Branch. In her testi-
mony, Stutz (1) read from a report prepared by Access
Agency and (2) testified as to the contents of a report
prepared by a clinical social worker involved in the
TIP program.
It is undisputed that the defendant never objected to
Stutz’ testimony on hearsay grounds. The trial court
nonetheless rejected Stutz’ testimony on that basis. As
the court stated in its memorandum of decision:
‘‘Although [Stutz] testified about what allegedly
occurred at Access Agency and the testing by TIP, she
was not present during these events. Her testimony
relied solely on hearsay events and occurrences outside
her observations. . . . The court does not credit her
testimony concerning Access Agency or TIP because
she did not observe the alleged events contained in the
Access Agency report and the TIP report that were
never introduced into evidence.’’1
It is well established that the trial court ‘‘is in the
best position to view the evidence in the context of
the entire case and has wide discretion in making its
evidentiary rulings.’’ State v. Schovanec, 326 Conn. 310,
320, 163 A.3d 581 (2017); see also Misthopoulos v. Mis-
thopoulos, 297 Conn. 358, 382, 999 A.2d 721 (2010) (trial
court has broad discretion in ruling on admissibility of
evidence). Nonetheless, a fundamental prerequisite to
the exercise of that broad discretion is an objection by
a party to the proceeding. As this court has explained,
‘‘[a] failure to make a sufficient objection to evidence
which is incompetent waives any ground of complaint
as to the admission of the evidence. But it has another
effect, equally important. If the evidence is received
without objection, it becomes part of the evidence in
the case, and is usable as proof to the extent of the
rational persuasive power it may have.’’ (Internal quota-
tion marks omitted.) Cohen v. Cohen, 11 Conn. App. 241,
248, 527 A.2d 245 (1987). For that reason, our Supreme
Court has emphasized that ‘‘[e]vidence admitted with-
out objection remains evidence in the case subject to
any infirmities due to any inherent weaknesses.’’ Mar-
shall v. Kleinman, 186 Conn. 67, 72, 438 A.2d 1199
(1982).
In the present case, the trial court did not reject
Stutz’ testimony due to any inherent weakness. Both
the court’s memorandum of decision and its subsequent
articulation plainly indicate that the court rejected her
testimony solely on hearsay grounds, in contravention
of the aforementioned precedent. Because hearsay
objections pertain to the issue of evidentiary admissibil-
ity; see State v. Vinal, 205 Conn. 507, 515, 534 A.2d 613
(1987); State v. Papineau, 182 Conn. App. 756, 779, 190
A.3d 913, cert. denied, 330 Conn. 916, 193 A.3d 1212
(2018); rather than evidentiary weight, I respectfully
disagree with my colleagues that the error in the present
case arises from the court’s failure to credit Stutz’ testi-
mony. Rather, I believe that it is the court’s refusal to
consider the substance of that testimony which consti-
tutes reversible error.2
The distinction between failing to consider certain
evidence and failing to credit that evidence is not merely
semantic. I fully agree with the majority’s conclusion
that the trial court improperly rejected Stutz’ testimony
on hearsay grounds.3 That testimony properly was
admitted without objection by the defendant. The trial
court, therefore, was obligated to consider the sub-
stance of that evidence. Marshall v. Kleinman, supra,
186 Conn. 72; Cohen v. Cohen, supra, 11 Conn. App.
248. At the same time, our precedent instructs that such
evidence remains ‘‘subject to any infirmities due to any
inherent weaknesses.’’ Marshall v. Kleinman, supra,
72; accord Volck v. Muzio, 204 Conn. 507, 518, 529 A.2d
177 (1987) (‘‘[w]hen hearsay statements have come into
a case without objection they may be relied upon by
the trier . . . in proof of the matters stated therein,
for whatever they were worth on their face’’ [internal
quotation marks omitted]).
In all cases, it remains the prerogative of the trial
court to determine the proper weight to be accorded
the evidence before it. See Fucci v. Fucci, 179 Conn.
174, 183, 425 A.2d 592 (1979). With respect to family
relations counselors specifically, our Supreme Court
has explained: ‘‘We have never held, and decline now
to hold, that a trial court is bound to accept the expert
opinion of a family relations officer. As in other areas
where expert testimony is offered, a trial court is free
to rely on whatever parts of an expert’s opinion the
court finds probative and helpful. . . . The best inter-
ests of the child, the standard by which custody deci-
sions are measured, does not permit such a predeter-
mined weighing of evidence.’’ (Citations omitted.)
Yontef v. Yontef, 185 Conn. 275, 281–82, 440 A.2d 899
(1981). I therefore respectfully disagree with the conclu-
sion of my colleagues that the trial court in the present
case abused its discretion in ‘‘failing to credit’’ Stutz’ tes-
timony.4
On the facts of this case, I would conclude that the
trial court committed reversible error when it declined
to consider the substance of Stutz’ testimony on hearsay
grounds. I therefore agree that the case must be
remanded to the trial court for further proceedings on
the motion in question.
1
The plaintiff, Lisa A. Dufresne, now known as Lisa A. Blasdell, thereafter
requested an articulation of the basis for that determination. In response,
the court issued an articulation, in which it stated that it had ‘‘found that
some of the testimony of [Stutz] was unreliable and untrustworthy because
it was hearsay.’’ In neither its March 12, 2018 memorandum of decision nor
its July 13, 2018 articulation did the court provide any other basis for rejecting
Stutz’ testimony.
2
The issue presented in this appeal concerns the court’s rejection of Stutz’
testimony. I acknowledge that the plaintiff’s appellate brief references the
court’s failure to credit that testimony. At the same time, the plaintiff in
that brief argued that ‘‘[t]here was no basis for the court’s rejection of
[Stutz’] testimony.’’ The plaintiff further stated: ‘‘Critically, the court did not
reject [Stutz’] testimony because the court did not find it to be substantively
credible; [the court] rejected it categorically because it was hearsay.’’ The
defendant, therefore, was on notice that the plaintiff’s contention concerned
the court’s wholesale rejection of the testimony offered by the family rela-
tions counselor.
The plaintiff further clarified the specific nature of her claim during oral
argument before this court. At that time, the plaintiff’s counsel argued that
the trial court, in its memorandum of decision, had said that Stutz’ testimony
‘‘ ‘is all hearsay and I’m going to disregard it.’ Now, this is important [as to]
what [this claim] is not about. This is not a situation where the court said,
‘I don’t find [Stutz] credible.’ Or, ‘I don’t find the underlying data that [Stutz
was] reporting to be credible.’ Or, ‘I don’t find the [defendant’s] testimony
to be more credible.’ What happened is, there was a categorical rejection
of [Stutz’ testimony regarding the supervised visitation administered by
the Agency Access and the TIP program] because it was hearsay.’’ Soon
thereafter, the plaintiff’s counsel was asked if he was arguing that the trial
court was obligated to credit Stutz’ testimony. In response, counsel stated:
‘‘No. [The court] was required to hear it, and [the court] didn’t. [The court]
was required to not categorically reject it on the basis of hearsay, but to
give it the opportunity and to weigh it and compare it to [the defendant’s]
testimony. . . . The court would be in the role, as the arbiter of credibility,
to make a determination [as to whether Stutz] was accurately reporting and,
if so, is the underlying data reliable or is it credible, and to weigh it against
[the defendant’s] credibility. But that didn’t happen here because [the court]
said, ‘I’m not going to give [Stutz’ testimony] any weight at all because
it’s hearsay.’ ’’
3
In light of that conclusion, I believe that much of the factual recitation
set forth in the majority opinion is unwarranted. Because this court today
concludes that the trial court improperly rejected the testimony of the family
relations counselor, necessitating reversal of the court’s judgment, I believe
that the factual findings made by the court subsequent to that evidentiary
error are largely irrelevant to the claims presented in this appeal.
4
I appreciate the plaintiff’s argument regarding the proper role of family
relations counselors like Stutz. As our Supreme Court has noted, ‘‘[f]amily
relations evaluators assist the court by providing a disinterested assessment
of the circumstances of a case.’’ (Internal quotation marks omitted.) Barros
v. Barros, 309 Conn. 499, 515–16, 72 A.3d 367 (2013); see also id., 504
(‘‘[f]amily relations provides myriad services to help parties resolve custody
and visitation disputes, including negotiation, conflict resolution confer-
ences, and mediation’’). To that end, Practice Book § 25-61 provides in
relevant part that ‘‘[t]he family services unit shall, at the request of the judicial
authority, provide assistance with regard to issues concerning custody,
visitation, finances, mediation, case management and such other matters
as the judicial authority may direct, including, but not limited to, an evalua-
tion of any party or any child in a family proceeding. . . .’’
The record before us suggests that the plaintiff merely was adhering to
existing Judicial Branch policy when she called Stutz to testify before the
court. This case involves a referral by the trial court to the family services
unit, which precipitated both Stutz’ involvement in the matter and her testi-
mony before the court. As the plaintiff notes in her appellate brief, Policy
No. 3.20 of the Judicial Branch’s Court Support Services Division, which
became effective on August 1, 2016, sets forth a policy by which the family
services unit ‘‘will be available to screen and accept referrals from the
Family Civil Court to provide General Case Management for any custody
and visitation matter.’’ In defining ‘‘General Case Management,’’ § 1 of that
policy states in relevant part that ‘‘[e]very effort will be made . . . to provide
the court with needed information . . . . Factual information and testi-
mony will be provided to the court as required.’’ Section 5 F further states that
the family relations counselor ‘‘will report to the Court . . . as ordered,’’ and
will ‘‘testify as ordered by the Court and will provide factual information.’’
In short, the policy plainly contemplates the testimony of family relations
counselors before our family courts. In light of that existing policy—as well
as the fact that Stutz’ involvement originated in a referral from the court—
the plaintiff’s consternation with the trial court’s decision to disregard Stutz’
testimony on hearsay grounds is understandable. Although the trial court
was not obligated to credit that testimony; see Barros v. Barros, supra, 309
Conn. 514; I do believe that the policy, and the important interests that the
general case management scheme is designed to further, required the court
to at least consider the substance of Stutz’ properly admitted testimony in
the present case.