Opinion
FA166067434S
09-27-2019
David MATHOG v. Lori YONTEF-MATHOG
UNPUBLISHED OPINION
OPINION
Nguyen-O’Dowd, J.
This matter comes before the court on the defendant’s postjudgment motion to appoint an attorney for the minor children (#219). The court heard oral argument on August 7, 2019. The parties were ordered to submit memoranda of law to the court by September 6, 2019.
I
PROCEDURAL HISTORY
The parties entered into a written agreement to dissolve their marriage on June 13, 2017 (Suarez, J.). As part of the dissolution agreement, the guardian ad litem (GAL), Attorney Kerry Tarpey, continued to be involved with the family for thirty-six months after the judgment. (Agreement, schedule A, paragraph 9.) The parties agreed that every ninety days the GAL would conduct a review with the parties to assess the weekly parenting schedule to ensure that it was in the best interest of the children. Additionally, the parties agreed to return to the GAL to attempt to resolve any conflict regarding the children.
On May 7, 2019, the plaintiff filed a motion for order (#213) and a motion for contempt (#212). The plaintiff subsequently amended his motion for contempt on July 18, 2019 (#220). These motions are scheduled for a contested hearing on December 3 and 4, 2019.
II
DISCUSSION AND CONCLUSION
A. Trial Court’s Authority to Appoint an Attorney for a Minor Child
The trial court enjoys broad discretion in appointing an attorney for a minor child in family and probate matters. See In re Tayquon H., 76 Conn.App. 693, 700, 821 A.2d 796 (2003). According to General Statutes § 46b-54, there are two limitations to the court’s discretion. First, the court may only appoint an attorney for a child when such an appointment would be in the best interests of the child. General Statutes § 46b-54(a); Newman v. Newman, 235 Conn. 82, 99, 663 A.2d 980 (1995). Additionally, the court’s discretion to appoint an attorney is limited to matters that specifically concern the support, custody, or visitation of the child, when the parties have made reasonable efforts to resolve the matter at issue. General Statutes § 46b-54(b); Fennelly v. Norton, 294 Conn. 484, 508, 985 A.2d 1026 (2010).
According to General Statutes 46b-54(a), "[t]he court may appoint counsel ... on its own motion, or at the request of either of the parties or of the legal guardian of any child or at the request of any child who is of sufficient age and capable of making an intelligent request."
The court’s discretion to appoint an attorney is not limited by the prior appointment of a GAL. On multiple occasions, our courts have considered situations where it would be appropriate for the court to appoint both a GAL and an attorney for a minor child. See e.g., Ireland v. Ireland, supra, 246 Conn. 439-40 (holding child’s attorney and GAL have separate and distinct roles in dissolution proceeding); Schult v. Schult, 241 Conn. 767, 780-81, 699 A.2d 134 (1997) (providing child’s attorney may advocate for a different outcome than the GAL); In re Tayquon H., supra, 76 Conn.App. 700 (holding trial court has broad discretion to appoint attorneys and GALs in dissolution proceedings). This is primarily due to the distinctive roles that GALs and attorneys play in a proceeding. According to our courts, the duty of a GAL is to "speak on behalf of the best interest of the child," while the role of an attorney is to advocate for the legal rights of a child. See Schult v. Schult, supra, 241 Conn. 779; In re Tayquon, supra, 76 Conn.App. 704, 706-07. "While the best interest of a child encompasses a catholic concern with the child’s human needs regarding his or her psychological, emotional, and physical well-being, the representation of a child’s legal interests requires vigilance over the child’s legal rights ... When both a guardian ad litem and an attorney have been appointed for a child, their respective roles and the duties attendant to those roles should adhere to that basic distinction." In re Tayquon H., supra, 76 Conn.App. 706-07.
In accordance with the distinct role that an attorney plays in a dissolution proceeding, our Supreme Court has provided that, "[t]he purpose of appointing counsel for a minor child ... is to ensure independent representation of the child’s interests." Schult v. Schult, supra, 241 Conn. 778. In order to accomplish such representation, a child’s attorney has the duty to advocate for the child client’s expressed wants and desires, aside from what the child’s bests interests are. See id., 779-80 (holding child’s attorney may advocate for different outcome than GAL because of their differing representative roles); Ireland v. Ireland, supra, 246 Conn. 439-40 (holding child’s attorney could not properly opine as to best interests of child because such opinion is more properly given by guardian ad litem). This is contrary to the position of a GAL, who typically examines the evidence, interviews the child and other relevant individuals, and then, testifies as a witness in regards to what is in the best interests of the child. See In re Tayquon H., supra, 76 Conn.App. 705-06.
B. Discussion
The matters pending before the court are the plaintiff’s motion for contempt and motion for order. There is no pending motion for modification of custody or parenting access. In his motion for contempt, the plaintiff has asked for relief in the form of the defendant being restrained from signing the children up for any activities and that the plaintiff have final decision making as to all matters related to the children. Although the relief sought is broad, it is not so broad as to require the appointment of an attorney for the children as contemplated by § 46b-54.
In his motion for contempt (#212), the plaintiff requested as part of his relief that "the children reside primarily with the Plaintiff unless the Defendant radically changes her behavior." Subsequently, the plaintiff filed an amended motion for contempt (#220) removing this request.
The issue before the court is contempt- whether there is a clear and unambiguous court order and whether the defendant willfully violated such order by clear and convincing evidence. See, Brody v. Brody, 315 Conn. 300, 316, 105 A.3d 887 (2015). Section 46b-54(c) provides that the trial court may only appoint an attorney for a minor child in matters that specifically concern the support, custody, or visitation of the child, and when the parties have made reasonable efforts to resolve the dispute. Our Appellate Court has illustrated the bounds of this limitation on a couple of occasions. For instance, in Fennelly v. Norton, supra, 294 Conn. 508-09, our Appellate Court held that the trial court’s appointment of an attorney for a minor child was an abuse of discretion because the motion at issue only concerned a dispute regarding payment of one of the party’s attorneys fees. In finding that the appointment was an abuse of discretion, our Appellate Court relied on § 46b-54(c), and consequently found that the appointment was improper because the children "had nothing more than a tangential interest in the result of the attorneys fees proceeding ..." Id., 509. On the other hand, in Oliver v. Oliver, 85 Conn.App. 57, 58, 66, 855 A.2d 1022 (2004), our Appellate Court held that the trial court properly allowed a child’s attorney to participate in hearings pertaining to a parent’s relocation request. Here, the fact that the plaintiff has asked for relief that changes the decision making authority of the parties does not constitute a matter in which the "custody, care, education, visitation or support" of the children is in actual controversy. The plaintiff’s request for relief is nothing more than a proposal for the court to consider when issuing orders, if any. The requested relief aside, the matter before the court is a motion for contempt. Ultimately, it is the court’s discretion upon ruling on the motion for contempt to issue additional orders whether or not they include the proposed remedies of the plaintiff.
Additionally, the fact that the parties cannot agree on the underlying motions for contempt is not determinative for this court to appoint independent counsel for the children. Here, a GAL has been involved with the parties since July 2013. Approximately a year after the GAL’s appointment, the parties’ marriage was dissolved. As outlined in their separation agreement, the GAL continued her involvement for an additional thirty-six months with specific duties to assess the parenting schedule with the parties on a quarterly basis. The GAL can attest to the children’s preferences to the extent that they are relevant to the matters pending before the court. If the court were to appoint an attorney for the children, it would require them to speak to another professional, impose a financial burden on the parties for two additional attorneys, and ultimately, slow down the proceedings. Moreover, if the court were to appoint an attorney for the children, it would require the attorney to advocate on behalf of his client, the child, and take a position as to whether to find the plaintiff, the mother, in contempt of court orders. "[T]he attorney for the child is ... an attorney, arguing on behalf of his or her client, based on the evidence in the case and the applicable law." (Emphasis in original.) Ireland v. Ireland, supra, 246 Conn. 438. Based on the pending matters, the court does not find under these circumstances that it would be in the children’s best interest to appoint an attorney.
III
ORDER
Defendant’s Motion for Appointment of Counsel for Minor Children (#219) is DENIED.
SO ORDERED.