Opinion
WWMFA166010965S
07-13-2018
Diane BOISVERT et al. v. James GAVIS
UNPUBLISHED OPINION
OPINION
Graziani, Judge
The plaintiffs, Diane Boisvert and Thomas Boisvert, commenced this action on October 25, 2016 when they served the defendant, James Gavis, with their verified petition seeking visitation with their five-year-old maternal grandson, Brandon Gavis. A trial took place on three separate dates between April 3, 2017 and July 27, 2017, after which the court issued a memorandum of decision on August 11, 2017. The court’s memorandum made specific threshold findings that (1) a parent-like relationship existed between the plaintiffs and the minor child; and, (2) that denial of the visitation petition would result in real and significant harm to the child, pursuant to General Statutes § 46b-59, which codifies these requisite findings as first articulated in Roth v. Weston, 259 Conn. 202, 234-35, 789 A.2d 281 (2002). After making these threshold findings, the court granted the plaintiff’s visitation petition. On August 15, 2017, the defendant appealed the trial court’s judgment to the Appellate Court. The matter was later transferred to the Supreme Court where it is currently pending.
On January 9, 2018, the defendant filed a motion to open the judgment and terminate visitation on the grounds that the defendant is no longer denying visitation to the plaintiffs. According to the defendant, this offer of meaningful visitation constitutes "changed circumstances" depriving this court of subject matter jurisdiction to maintain the visitation order pursuant to § 46b-59. The defendant proffers that § 46b-59 offers relief only under circumstances where visitation is denied by the child’s parent, and that no court has granted third-party visitation absent a complete denial of visitation.
The defendant also argues that § 46b-59 is in derogation of common law and must be strictly construed, citing largely to Denardo v. Bergamo, 272 Conn. 500, 502, 863 A.2d 686 (2005), for the proposition that the two-pronged inquiry is to be applied anytime a third party’s initial petition for visitation or a parent’s motion to modify or terminate is before the court. The defendant proffers that the fundamental rationale behind the Denardo decision is that a fit parent is presumed to act in furtherance of the child’s best interests, and the satisfaction of the two-pronged inquiry is necessary in order to override a parent’s fundamental right to care for his or her own children without undue interference. Id., 511-12. Thus, the defendant argues, in reapplying the Roth criteria to the present case, the court now lacks subject matter jurisdiction because visitation is no longer denied, and the plaintiffs can no longer satisfy the second prong requiring the court to find that "denial of visitation would cause real and significant harm."
In response, the plaintiffs counter that the defendant misstates the case law to which he cites, and, moreover, there are no changed circumstances in the present case. A hearing was held on March 19, 2018, at which time the parties argued their respective positions, and the court took the matter under advisement.
DISCUSSION
"Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed." (Emphasis added.) General Statutes § 52-212a; Practice Book § 17-4.
"After the expiration of the four-month period ... a judgment may not be vacated upon the sole ground that it is erroneous in matter of law, except by a court exercising appellate or revisory jurisdiction, unless such action is authorized by statute or unless the error is one going to the jurisdiction of the court rendering the judgment ... The court does have inherent authority, however, at any time to open and modify a judgment rendered without jurisdiction." (Internal quotation marks omitted.) Gallagher v. Gallagher, 29 Conn.App. 482, 483-84, 616 A.2d 281 (1992).
"Whether proceeding under the common law or a statute, the action of a trial court in granting or refusing an application to open a judgment is, generally, within the judicial discretion of such court, and its action will not be disturbed on appeal unless it clearly appears that the trial court has abused its discretion." (Internal quotation marks omitted.) Simmons v. Weiss, 176 Conn.App. 94, 98, 168 A.3d 617 (2017). "It is well established that [c]ourts have intrinsic powers, independent of statutory provisions authorizing the opening of judgments, to vacate [or open] any judgment obtained by fraud, duress or mutual mistake.’ " (Internal quotation marks omitted.) Id., 99.
"Litigation about whether subject matter jurisdiction exists should take into account whether the litigation is a collateral or direct attack on the judgment, whether the parties consented to the jurisdiction originally, the age of the original judgment, whether the parties had an opportunity originally to contest jurisdiction, the prevention of a miscarriage of justice, whether the subject matter is so far beyond the jurisdiction of the court as to constitute an abuse of authority, and the desirability of the finality of judgments." Arseniadis v. Arseniadis, 2 Conn.App. 239, 243-44, 477 A.2d 152 (1984), accord Stones Trail, LLC v. Town of Weston, 174 Conn.App. 715, 736-37, 166 A.3d 832 (2017). Where a postjudgment motion is filed claiming lack of subject matter jurisdiction, and the necessary jurisdiction was present at the time of the underlying judgment, the court lacks jurisdiction to open the judgment unless some other basis for doing so is established. Gallagher v. Gallagher, supra, 29 Conn.App. 484.
I. The Trial Court Had Jurisdiction Over the Matter When it Rendered Them August 2017 Judgment.
While it is presumed that the defendant is acting in furtherance of the best interests of his child, the court concludes that, procedurally, it had subject matter jurisdiction over the action when it rendered the August 11, 2017 decision, and the defendant’s motion does not advocate an alternative basis in which to open the judgment. Additionally, the defendant has appealed the court’s underlying judgment, which remains pending at Connecticut’s Supreme Court; thus, the defendant is not without remedy.
In a third-party visitation action, where a grandparent seeks visitation with the grandchild named in the petition, the petition "shall include specific and good faith allegations that (1) a parent-like relationship exists between the person and the minor child, and (2) denial of visitation would cause real and significant harm." General Statutes § 46b-59(b). " ‘Real and significant harm’ means that the minor child is neglected, as defined in section 46b-120, or uncared for, as defined in said section." § 46b-59(a)(2). "The degree of specificity of the allegations must be sufficient to justify requiring the fit parent to subject his or her parental judgment to unwanted litigation. Only if these specific, good faith allegations are made will a court have jurisdiction over the petition." Roth v. Weston, supra, 259 Conn. 234-35. "[O]nce these high jurisdictional hurdles have been overcome, the petitioner must prove these allegations by clear and convincing evidence." Id.
General Statutes § 46b-120(6) provides: "A child or youth may be found ‘neglected’ who, for reasons other than being impoverished, (A) has been abandoned, (B) is being denied proper care and attention, physically, educationally, emotionally or morally, or (C) is being permitted to live under conditions, circumstances or associations injurious to the well-being of the child or youth." General Statutes § 46b-120(8) provides in relevant part: "A child or youth may be found ‘uncared for’ (A) who is homeless, (B) whose home cannot provide the specialized care that the physical, emotional or mental condition of the child or youth requires ..."
The factors that the court may consider in determining whether a parent-like relationship exists between the petitioner and the child are as follows: "(1) The existence and length of a relationship between the person and the minor child prior to the submission of a petition pursuant to this section; (2) The length of time that the relationship between the person and the minor child has been disrupted; (3) The specific parent-like activities of the person seeking visitation toward the minor child; (4) Any evidence that the person seeking visitation has unreasonably undermined the authority and discretion of the custodial parent; (5) The significant absence of a parent from the life of a minor child; (6) The death of one of the minor child’s parents; (7) The physical separation of the parents of the minor child; (8) The fitness of the person seeking visitation; and (9) The fitness of the custodial parent." § 46b-59(c). In addition to the aforementioned factors, the court may also consider the history of regular contact and proof of a close and substantial relationship between the grandparents and the child. § 46b-59(d).
In the present case, in order for the court to have had subject matter jurisdiction over the action at the time the petition was adjudicated, the court was required to make the aforementioned threshold findings. The court’s memorandum of decision provides detailed facts supporting the court’s conclusion that the threshold requirements were satisfied.
First, the court essentially took judicial notice of the defendant’s dissolution action between himself and the child’s mother, Nicole Gavis, in which the dissolution court found, inter alia, that the defendant was the primary cause of the breakdown in the relationship stemming largely from his course of domestic abuse towards the family, including physical violence towards Nicole’s daughter from a previous relationship and threats of violence towards Brandon. The defendant’s pattern of domestic violence resulted in multiple incarcerations, and a lifetime criminal protective order in Nicole’s favor.
The court then reviewed the history that precipitated the plaintiff’s filing of the visitation petition, and proceeded to review the testimony offered by the defendant, the maternal grandparents, the guardian ad litem, and Dr. Steven H. Humphrey, a licensed clinical psychologist. After considering all of the evidence, the court found by clear and convincing evidence the existence of a parent-like relationship between the maternal grandparents and the minor child. The court also found that the parent-like relationship continued to exist one year after the defendant terminated their visitation with the child. The court further found that denial of the visitation petition would cause real and significant harm to the child within the meaning of General Statutes § 46b-120(6)(c), because denial of the petition would result in the child’s living under conditions or circumstances injurious to the child’s well-being.
In particular, the court credited the report and testimony of Dr. Humphrey when considering whether denial of the petition would cause harm to the child’s well-being. Humphrey provided extensive testimony on the relationship between the child and the plaintiffs, and that they shared a positive, healthy bond which abruptly ended when the defendant terminated their regular visitation, consequently precipitating this action. Humphrey further testified to the fact that the plaintiffs were the child’s primary caretakers while the defendant was incarcerated for twenty-two months, a time period which the court has previously recognized as representing approximately forty percent of the child’s life. Shortly thereafter, the child’s mother died suddenly, an experience which Humphrey categorizes as very traumatic and severely disruptive for a boy so young in years. Humphrey observed that the death of Brandon’s mother, coupled with the unexplained disappearance of his grandparents, was very problematic and that lack of contact with the plaintiffs would cause real and significant harm. Specifically, "to deprive Brandon of individuals who have been in a caretaker capacity, who have helped bridge the difficulties caused by maternal death and paternal incarceration, and who are capable and eager to provide Brandon with such support would not be in his best interest and there are reasons for concern that there would be significant psychological harm to cessation of these relationships."
On the whole, the evidence in the record supported the good faith allegations within the petition that the plaintiffs have a parent-like relationship with the minor child, and that denial of the visitation petition would cause real and significant harm to Brandon. Thus, the court made its findings accordingly, and granted the plaintiff’s petition. It was these threshold findings which gave the court subject matter jurisdiction to decide the visitation petition. Because the necessary jurisdiction was present when the court rendered the underlying judgment, and the defendant has not established an alternative basis for lack of subject matter jurisdiction such as fraud, duress, or mistake; the court lacks the authority to open the underlying judgment at this time. See Gallagher v. Gallagher, supra, 29 Conn.App. 484.
II. The Defendant’s Unilateral Offer of Meaningful Visitation Does not Deprive the Court of Subject Matter Jurisdiction
A careful reading of the defendant’s brief demonstrates that the defendant’s argument hinges upon his interpretation of the plain language of § 46b-59 and its usage of the word "denial." A thorough analysis of the statute’s plain language; see General Statutes § 1-2z; leads the court to conclude that the use of the word "denial" in this context is strictly in reference to the court’s denial of the visitation petition before it, not the custodial parent’s initial denial of visitation with the child. Section 46b-59(b) begins with, "[a]ny person may submit a verified petition ..." It goes on to require "[s]uch petition shall include specific and good-faith allegations that (1) a parent-like relationship exists between the person and the minor child, and (2) denial of visitation would cause real and significant harm."
General Statutes § 1-2z provides: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered."
This section sets forth the content requirements whereby the visitation petition would be considered sufficient on its face. The section’s usage of the word "would" is instructive; since, it references the future probability of real and significant harm should the court ultimately deny the visitation petition. The plain language of the section is unambiguous, and lies in stark contrast to the defendant’s interpretation which presumes denial of visitation by the custodial parent, and also presumes that said denial has occurred in the past. This latter interpretation would yield an unworkable result, since it would make the custodial parent’s denial of visitation a prerequisite to the court’s acquiring the authority to adjudicate the petition, but it would also operate to simultaneously add a "third prong" to the court’s jurisdictional inquiry. The statutory jurisdictional parameters are defined by a two-pronged inquiry which is supported by the interpretive case law. Furthermore, the court is unable to locate any persuasive authority which supports the defendant’s position. Thus, in the present circumstances, the court must adhere to the well-established rules of statutory construction and respectfully disagree.
Moreover, the present case may be distinguished from the case law upon which the defendant relies. In Denardo v. Bergamo, 272 Conn. 500, 502, 863 A.2d 686 (2005), the issue before the Supreme Court was whether the plaintiffs were required to satisfy both the jurisdictional and substantive requirements set forth in Roth v. Weston, supra, 259 Conn. 234-35, after the custodial parent moved to modify or terminate the visitation order. Id. Critical to the court’s consideration was the fact that there was a preexisting visitation order which had been granted prior to the Supreme Court’s deciding of Roth. The deciding of Roth set forth a new legal standard for courts to apply when adjudicating third-party visitation petitions. The trial court, therefore, was obliged to apply the Roth standard in deciding the motion to modify. In applying Roth ’s two-pronged inquiry to the circumstances of the case, the court ultimately concluded that the plaintiffs failed to sustain their burden in establishing a parent-like relationship, and that significant harm would come to the child if visitation with the plaintiffs was denied. Id., 508.
On appeal, the Supreme Court, affirming the trial court’s decision, held that the application of the Roth standard could be applied retrospectively in actions where visitation had been granted prior to the deciding of Roth, because to limit Roth ’s application to prospective applications only would sanction violations of parent’s constitutional rights prior to Roth. Id., 512. Furthermore, the Supreme Court opined that in applying the Roth standard, the trial court was "compelled to grant the defendant’s motion to terminate visitation," because the plaintiffs failed to allege and demonstrate a parent-like relationship with the child, and failed to prove that denial of visitation would cause real and significant harm to the child. Id., 514. "Without those specific good-faith allegations or such proof, either at the time of filing of their petition or at the time of the hearing on the defendant’s motion, the trial court’s prior order of visitation was rendered without subject matter jurisdiction." Id.
In summary, Denardo stands for the proposition that the Roth standard may be applied retroactively in pre-Roth visitation actions where the now requisite threshold findings had not been previously made. Denardo is distinguishable from the present case, since the parties in this action did not have a visitation order in place prior to the deciding of Roth . In the present case, the plaintiffs filed a post-Roth third-party visitation petition. Pursuant to § 46b-59, the two-pronged jurisdictional inquiry was conducted, the requisite findings were made, and the basis for these findings was clearly set forth in the court’s memorandum of decision. Because the court already articulated the requisite statutory findings in its decision, it need not do so retrospectively.
On the other hand, Martocchio v. Savoir, 153 Conn.App. 492, 493, 101 A.3d 953 (2014), is a post-Roth decision with a protracted procedural history. The dispositive issue before the Appellate Court was whether, in the absence of a proper Roth analysis, the defendants had standing to proceed with their claim for visitation with their maternal grandchild. Id., 494. The plaintiff appealed the trial court’s decision granting visitation to the defendant maternal grandparents who maintained that they possessed an independent right to visitation with the minor child which should be unaffected by the fact that their daughter’s parental rights had been terminated. Id., 498. The trial court, in granting visitation to the maternal grandparents, citing the "law of the case" doctrine, relied upon the original judgment rendered by another Superior Court judge articulating the finding that a parent-child relationship existed between the grandparents and the minor child. Id., 499. The earlier decision, however, failed to articulate the requisite finding of harm. Id., 505-06. Because the court did not specifically make both findings prior to rendering the original judgment, the court was deprived of subject matter jurisdiction over the matter. Id., 506-07.
The facts in the present case differ from those in Martoccio, because this court clearly articulated why the evidence supported both of the requisite threshold findings. Moreover, the defendant argues that the court must apply the two-prong analysis whenever the court decides an initial petition or a motion for modification. The motion presently before the court is not a motion for modification, but a motion to open which was filed more than four months after the court’s underlying judgment. As a matter of law, the procedural posture of this motion requires the defendant to demonstrate fraud, duress, or mutual mistake. The defendant has neither argued nor demonstrated fraud, duress, or mistake; therefore, the court lacks the authority to open the underlying judgment at this time. See Gallagher v. Gallagher, supra, 29 Conn.App. 484.
CONCLUSION
As a matter of law, the court had subject matter jurisdiction over the action at the time it rendered the underlying judgment and issued its memorandum of decision. The memorandum of decision provided a thorough analysis of the threshold requirements articulated in § 46b-59 and Roth v. Weston as applied to the relevant facts and circumstances in the present case. Upon finding that each prong was satisfied, the court granted the visitation petition. Accordingly, absent evidence of fraud, duress or mutual mistake, the court lacks jurisdiction to open this judgment. The defendant’s motion to open is denied.