Connecticut Appellate Court affirms trial court's order authorizing the plaintiff to move to Texas with the parties' minor child in divorce action, declining to apply plain error doctrine

2011-08-30 | Kathryn M. Cunningham
kmcunningham@jacksonokeefe.com

Category: Divorce

Kathryn M. Cunningham

Connecticut Divorce Lawyer West Hartford Wethersfield Farmington Southington East Haddam Cromwell

 

Connecticut Appellate Court affirms trial court's order authorizing the plaintiff to move to Texas with the parties' minor child in divorce action, declining to apply plain error doctrine

 

In this appeal from the judgment dissolving the parties' marriage, the defendant, Kevin Clougherty, seeks plain error review of his claim that the trial court improperly relied on certain evidence in authorizing the plaintiff, Leticia Clougherty, to move to Texas with the parties' minor child. We conclude that the defendant's claim does not present the type of extraordinary situation that warrants application of this doctrine and, accordingly, affirm the judgment of the trial court.

 

...

 

We cannot conclude that under the facts and circumstances of this case that the court committed error, least of all plain error. First, the guardian ad litem did not offer a medical diagnosis of failure to thrive or an opinion she was unqualified to give. The guardian ad litem testified, without objection, that one of the child's health care providers had explained to her that there was concern that the child suffered from failure to thrive. ''Hearsay evidence admitted because no objection was voiced can be considered to prove the matters in issue for whatever its worth on its face.'' Derderian v. Derderian, 3 Conn. App. 522, 528, 490 A.2d 1008, cert. denied, 196 Conn. 810, 811, 495 A.2d 279 (1985). Nor did the guardian ad litem opine improperly on the mental health of the defendant. Rather, in assessing the best interests of the child, the guardian ad litem testified that based on her observations, the defendant's involvement with the child consumed his entire life and that he was uncomfortable disciplining the child, which she believed interfered with his ability to parent appropriately. It is within the province of a guardian ad litem to offer such testimony. See In re Tayquon H., 76 Conn.

App. 693, 704-706, 821 A.2d 796 (2003); see also General Statutes § 46b-129a. Second, it is unclear whether the defendant's failure to interpose an objection to the guardian ad litem's testimony was part of his trial strategy to obtain primary physical custody. At trial, a significant amount of testimony focused on the child's eating habits and failure to gain weight, and both parties testified that the other party was to blame for the child's low weight. In the absence of an obvious and patent error, there can be no plain error. See Baugher v. Baugher, 63 Conn. App. 59, 64, 774 A.2d 1089 (2001).

 

 

For more information and resources on Connecticut divorce lawyers, see our divorce resources page: http://www.jacksonokeefe.com/general-practice/divorce.html

 

 

 Connecticut Divorce, Family Law and Mediation Attorneys

 

 If you are coping with Connecticut divorce or a paternity matter, or require a modification to resolve critical problems that have arisen afterward, it is essential to work with a Connecticut divorce lawyer who inspires your confidence and trust. Jackson O'Keefe understands what you are going through and understands the life-changing dynamics of families going through divorce. In divorces, and other family law matters, we understand how important it is to protect your rights and interests, and those of your children as well. In some situations, this may call for a more pragmatic approach designed to achieve desired solutions with a minimum of expense, delay and damage. In others, aggressively protecting your rights and taking your custody or alimony dispute to trial may be called for. In either case, we will not lose sight of satisfying your long-term goals. 

 

Jackson O'Keefe represents and counsels individuals relative to Connecticut prenuptial agreements, separation, and Connecticut divorce and child custody issues. The attorneys in our family law section have been recognized by the Connecticut courts for their expertise and have acted as Special Master's assisting other attorneys and individuals to resolve Connecticut divorce and child custody claims. Our wide experience in real estate and estate planning enables us to counsel our family law clients relative to a wide variety of legal issues. Jackson O'Keefe attorneys are dedicated to the practice of family law including divorce, legal separation, property division, custody, child and spousal support, paternity, litigation, pretrial litigation, mediation, pre-marriage issues, and post-divorce issues. Attorneys in our firm are adept at analyzing complicated financial situations, particularly complex business valuation issues. 

 

Jackson O'Keefe Connecticut Divorce Attorneys and Child Custody Lawyers

Jackson O'Keefe handles divorce matters throughout the State of Connecticut, including clients in West Hartford, Farmington, Avon, Simsbury, Old Lyme, Ellington, Tolland, North Haven, Wallingford, Wethersfield, Rocky Hill, Cromwell, Bethlehem, Moodus, East Haddam, Hadlyme, Madison, Middletown, Hartford, Southington, Plantsville, Hartford County, New Haven County, Middlesex County, New London County and Litchfield County

 

For more information on the case discussed above see http://www.jud.ct.gov/external/supapp/Cases/AROap/AP131/131AP557.pdf

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