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

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).



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