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STACY TABER v. MICHAEL TABER
(AC 44272)
Bright, C. J., and Suarez and Vertefeuille, Js.
Syllabus
The defendant, whose marriage to the plaintiff previously had been dissolved, appealed to this court from an order of the trial court issued
on August 10, 2020, modifying his custody of the parties’ minor child
and amended his appeal to challenge the court’s October 28, 2020 order
concerning the payment of arrearage fees to the guardian ad litem. On
October 13, 2020, the court issued an order suspending entirely the
defendant’s access to the minor child until certain conditions were
met. Held:
1. The defendant could not prevail on his claim that the trial court failed
to apply the correct legal standard and failed to make the requisite
findings in its consideration of the plaintiff’s application for an emergency ex parte order of custody, as the appeal from the court’s August
10, 2020 order on the application was dismissed as moot; subsequent
to the trial court’s order regarding the defendant’s custody of his minor
child, the court issued an order on October 13, 2020, further restricting
his access to the child and superseding the first order, and, because the
defendant did not appeal from the October 13, 2020 order, this court
could not afford the defendant any practical relief and lacked subject
matter jurisdiction.
2. The trial court did not abuse its discretion in ordering the defendant to
begin making weekly payments on the total arrearage of guardian ad
litem fees; the court ordered the defendant to submit a current, completed financial affidavit and a recent paystub showing his year to date
earnings and held a hearing to address the issue of the fees, and testimony was presented concerning the defendant’s current financial circumstances and ability to pay various other bills, thus, the record indicated that the court considered the financial circumstances of the parties
in issuing its order.
Argued November 18, 2021—officially released January 25, 2022
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial district of New Britain and tried to the court, Abery-Wetstone, J.; judgment dissolving the marriage and granting
certain other relief in accordance with the parties’ separation agreement; thereafter, the court, Caron, J.,
granted the plaintiff’s application for an emergency ex
parte order of custody of the parties’ minor child, and
the defendant appealed to this court; subsequently, the
court, Abery-Wetstone, J., granted the plaintiff’s motion
for contempt and issued orders suspending the defendant’s access to the minor child; thereafter, the court,
Abery-Wetstone, J., ordered the defendant to pay the
arrearage of guardian ad litem fees, and the defendant
filed an amended appeal. Appeal dismissed in part;
affirmed.
Michael Taber, self-represented, the appellant (defendant).
Opinion
SUAREZ, J. In this amended appeal, the self-represented defendant, Michael Taber, appeals from the
order of the trial court granting the application for an
emergency ex parte order of custody filed by the plaintiff, Stacy Taber. The order, in part, limited the defendant’s right to visitation with the parties’ minor child.
The defendant also appeals from another order of the
court ordering him to pay $100 per week on a total
arrearage of guardian ad litem (GAL) fees incurred in
this dissolution matter and related proceedings. The
defendant claims that the court (1) failed to apply the
correct legal standard and failed to make requisite findings in its consideration of the application for an emergency ex parte order of custody, and (2) improperly
ordered him to make payments of $100 per week on
the total arrearage of GAL fees. We dismiss as moot
the portion of the appeal related to the defendant’s first
claim. With respect to the defendant’s second claim,
we affirm the order of the court finding an arrearage
of GAL fees and ordering him to make weekly payments
on the total arrearage.1
The following undisputed facts and procedural history are relevant to our resolution of the defendant’s
claims. The plaintiff and the defendant were married
in 2009, and had a child together in 2010. In May, 2017,
the plaintiff commenced an action seeking a judgment
of dissolution. In August, 2017, the plaintiff and the
defendant entered into a pendente lite agreement,
which was subsequently approved and entered as an
order of the court, establishing joint custody of the
minor child and setting forth a parenting plan.
The August, 2017 agreement also provided for the
appointment of a GAL to represent the minor child.
Attorney Kathleen Nevins was appointed as the GAL in
the marital dissolution and custody proceedings. Nevins
was reappointed several times throughout the proceedings, most recently on January 30, 2020. The order of
duties and fees related to Nevins’ January 30 appointment indicated that the parties were each responsible
to pay 50 percent of the GAL fees, which were billed
at an hourly rate of $150.
Although the litigation between the plaintiff and the
defendant has been ongoing for several years, this
appeal focuses on two specific orders of the court.
The first order from which the defendant appeals was
entered on August 10, 2020. Relevant to that order, on
July 30, 2020, the plaintiff filed an application for an
emergency ex parte order of custody requesting that the
defendant’s ‘‘vacation time with the child be terminated
immediately.’’ On August 10, 2020, the court, Caron, J.,
held a hearing on the plaintiff’s application. Following
the hearing, the court entered the August 10, 2020 order,
which established a new parenting plan suspending the
defendant’s overnight access with the minor child and
ordering that the defendant ‘‘shall have parenting time
every other Saturday from 10 a.m. to 7 p.m.’’ The August
10, 2020 order further provided that the defendant was
to have telephone access with the minor child ‘‘whenever [the child] wants for as long as he wants.’’
Thereafter, on September 14, 2020, the plaintiff filed
a motion for contempt postjudgment, alleging that the
defendant did not adhere to the parenting plan established by the August 10, 2020 order. On September 24,
2020, the court, Abery-Wetstone, J., held a hearing on
the motion for contempt. On the same day, the court
issued a written order finding the defendant in contempt
of the August 10, 2020 order. On October 1, 2020, the
plaintiff filed a motion to correct in which she requested
that the court correct the written September 24, 2020
order to correspond with the court’s oral decision. The
court granted the motion and issued a corrected order,
dated October 13, 2020. The October 13, 2020 order
suspended the defendant’s access to the child until the
defendant ‘‘attends therapy with Dr. Bruce Freedman,
Ph.D., bi-weekly for a period of three months without a
gap.’’ Additionally, the court ordered that the defendant
was ‘‘responsible for GAL attorney’s fees in accordance
with the attorney’s fees affidavits filed with the court.’’
It further ordered that the defendant begin making payments on the ‘‘total arrearage [of GAL fees] no more
than thirty days from the date of [the] order.’’ The court
found that such GAL fees were reasonable and necessary.
On October 13, 2020, the GAL filed a request for a
status conference regarding fees. In response to this
request, the court scheduled a hearing for October 28,
2020, to address the issue of GAL fees. The court further
ordered that the defendant bring to the hearing a ‘‘current and completed financial affidavit and a recent [pay
stub] showing year to date earnings.’’
The defendant did not attend the October 28, 2020
hearing, but he did file a financial affidavit prior to
the hearing. At the hearing, the GAL testified that she
reviewed the financial affidavit that the defendant had
submitted to the court. The GAL further testified, based
on the financial affidavit, that the defendant was ‘‘making $120,000 [per year] now, as compared to January,
2020, [when the defendant] was claiming he made zero.’’
She also testified that ‘‘since January . . . [the defendant] elected to pay [various other bills] instead of the
guardian ad litem [fees].’’ The GAL asserted that the
defendant ‘‘keeps choosing not to pay the guardian ad
litem fees.’’ She ultimately asked the court to order the
defendant to pay the full arrearage of the fees within
fourteen days of the hearing. At the conclusion of the
hearing, the court, Abery-Wetstone, J., found, on the
record, that the defendant had accrued a total arrearage
of $6263.87 in GAL fees.
On October 28, 2020, the court issued a written decision in which it ordered the defendant to pay the ‘‘fee
arrearage until paid in full at the rate of $100/week.’’
The court noted at the hearing that the total fee arrearage was $6263.87 and that, at the rate of $100 per week, it
would be fully paid in approximately sixty-three weeks.
On September 17, 2020, the defendant filed an appeal
from the August 10, 2020 order. The defendant did not
appeal from the October 13, 2020 order, nor did he
amend his appeal from the August 10, 2020 order to
include the subsequent October 13, 2020 order. On
December 1, 2020, the defendant filed an appeal from
the October 28, 2020 order. Under our rules of appellate
procedure; see Practice Book § 61-9; we consider this
subsequent appeal to have amended his initial appeal
from the judgment rendered with respect to the August
10, 2020 order to include a challenge to the judgment
rendered with respect to the October 28, 2020 order.2
I
First, with respect to the August 10, 2020 order, the
defendant claims that the court failed to apply the correct legal standard and failed to make requisite findings
in its consideration of the application for an emergency
ex parte order of custody. We dismiss this portion of
the appeal as moot.3
‘‘When, during the pendency of an appeal, events
have occurred that preclude an appellate court from
granting any practical relief through its disposition of
the merits, a case has become moot. . . . It is axiomatic that if the issues on appeal become moot, the
reviewing court loses subject matter jurisdiction to hear
the appeal. . . . It is a [well settled] general rule that
the existence of an actual controversy is an essential
requisite to appellate jurisdiction; it is not the province
of the appellate courts to decide moot questions, disconnected from the granting of actual relief or from
the determination of which no practical relief can follow. . . . An actual controversy must exist not only at
the time the appeal is taken, but also throughout the
pendency of the appeal.’’ (Citation omitted; internal
quotation marks omitted.) Kennedy v. Kennedy, 109
Conn. App. 591, 599,
952 A.2d 115 (2008).
‘‘Even though the issue of mootness was not raised
in the briefs or at oral argument, this court has a duty
to consider it sua sponte because mootness implicates
the court’s subject matter jurisdiction. It is, therefore,
a threshold matter to resolve. . . . Subject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action
before it. . . . [A] court lacks discretion to consider
the merits of a case over which it is without jurisdiction
. . . . The objection of want of jurisdiction may be
made at any time . . . [a]nd the court or tribunal may
act on its own motion, and should do so when the
lack of jurisdiction is called to its attention. . . . The
requirement of subject matter jurisdiction cannot be
waived by any party and can be raised at any stage in
the proceedings.’’ (Citation omitted; internal quotation
marks omitted.)
Id., 598–99.
As we discussed previously in this opinion, subsequent to the August 10, 2020 order establishing the
defendant’s right to scheduled visitation with his child,
the court, on October 13, 2020, issued another order
which suspended the defendant’s access to the child,
including both visitation and telephonic access. Given
that the August 10, 2020 order has been superseded by
the October 13, 2020 order, and that order has not been
appealed from, this court cannot afford the defendant
any practical relief. Therefore, this portion of the appeal
is moot, and this court lacks subject matter jurisdiction
over it. See
id., 599. Accordingly, we dismiss this portion
of the defendant’s appeal.
II
Second, with respect to the October 28, 2020 order,
the defendant claims that the court improperly ordered
him to make payments of $100 per week on the total
arrearage of GAL fees. Specifically, the defendant
claims that the court erred by not considering the
respective financial circumstances of the parties. We
disagree.
General Statutes § 46b-62 governs, inter alia, payments of GAL fees. Section 46b-62 (a) provides in relevant part: ‘‘In any proceeding seeking relief under the
provisions of this chapter . . . the court may order
either spouse or, if such proceeding concerns the custody, care, education, visitation or support of a minor
child, either parent to pay the reasonable attorney’s
fees of the other in accordance with their respective
financial abilities and the criteria set forth in section
46b-82. If, in any proceeding under this chapter . . .
the court appoints counsel or a guardian ad litem for
a minor child, the court may order the father, mother
or an intervening party, individually or in any combination, to pay the reasonable fees of such counsel or
guardian ad litem or may order the payment of such
counsel’s or guardian ad litem’s fees in whole or in part
from the estate of the child. . . .’’ Under § 46b-62, the
court must consider the financial resources of the parties when awarding attorney’s fees. See, e.g., Ruggiero
v. Ruggiero, 76 Conn. App. 338, 347–48,
819 A.2d 864
(2003). How such expenses will be paid is, however,
within the court’s discretion. See, e.g.,
id., 348. ‘‘An
abuse of discretion in granting [guardian ad litem] fees
will be found only if [an appellate court] determines
that the trial court could not reasonably have concluded
as it did.’’ (Internal quotation marks omitted.)
Rubenstein v. Rubenstein,
107 Conn. App. 488, 500,
945 A.2d 1043, cert. denied,
289 Conn. 948,
960 A.2d
1037 (2008).
In the present case, the defendant claims that the
court abused its discretion because it did not consider
the respective financial circumstances of the parties
when it ordered him to begin making the weekly payments. For the reasons that follow, we conclude that
the record does not support the defendant’s contention.
To begin, the court held a hearing to address the
issue of GAL fees. Prior to the hearing, the court ordered
that the defendant submit a current, completed financial affidavit and a recent pay stub showing his year
to date earnings. During the hearing, the court heard
testimony concerning the defendant’s financial circumstances from the GAL. The court also heard testimony
that the defendant was able to pay various other bills,
although he was not paying the GAL fees. The GAL
requested that the total arrearage of fees be paid within
fourteen days of the hearing. The court instead ordered
the defendant to make payments in the amount of only
$100 per week. The record indicates that the court did,
in fact, consider the financial circumstances of the parties. We therefore conclude that the court did not abuse
its discretion when it ordered the defendant to begin
making weekly payments on the total arrearage of
GAL fees.
The portion of the amended appeal from the August
10, 2020 order of the trial court establishing the defendant’s right to scheduled parental visitation time is dismissed as moot; the appeal from the order of the trial
court ordering the defendant to make weekly payments
on the total arrearage of guardian ad litem fees is
affirmed.
In this opinion the other judges concurred.
1
The plaintiff has not participated in this appeal and, thus, we consider
the appeal solely on the basis of the arguments set forth in the defendant’s
appellate briefs, his oral argument, and our review of the record.
2
Practice Book § 61-9 provides in relevant part: ‘‘If the appellant files a
subsequent appeal from a trial court decision in a case where there is
a pending appeal, the subsequent appeal may be treated as an amended
appeal . . . .’’
3
This court heard oral argument in the present case on November 18,
2021. Following oral argument and on our further review of the trial court’s
file, we became concerned that this portion of the appeal was moot. On
November 22, 2021, we issued an order for the defendant to file a supplemental brief addressing whether the portion of this appeal challenging the August
10, 2020 order of the court, Caron J., entered in response to the plaintiff’s
application for an emergency ex parte order of custody of the parties’ minor
child, should be dismissed as moot in light of the October 13, 2020 order
of the court, Abery-Wetstone, J., which subsequently altered the defendant’s
right to visitation with the child and from which the defendant has not
appealed. On December 21, 2021, the defendant filed a supplemental brief
in response to the order. In his brief, the defendant does not argue that the
portion of the appeal challenging the August 10, 2020 order is not moot.
Instead, the defendant argues that the challenged action falls under a recognized exception to the mootness doctrine because it is capable of repetition,
yet evading review.
‘‘The mootness doctrine does not preclude a court from addressing an
issue that is capable of repetition, yet evading review. . . . [F]or an otherwise moot question to qualify for review under the capable of repetition,
yet evading review exception, it must meet three requirements. First, the
challenged action, or the effect of the challenged action, by its very nature
must be of a limited duration so that there is a strong likelihood that the
substantial majority of cases raising a question about its validity will become
moot before appellate litigation can be concluded. Second, there must be
a reasonable likelihood that the question presented in the pending case will
arise again in the future, and that it will affect either the same complaining
party or a reasonably identifiable group for whom that party can be said
to act as surrogate. Third, the question must have some public importance.
Unless all three requirements are met, the appeal must be dismissed as
moot.’’ (Internal quotation marks omitted.) Burbank v. Board of Education,
299 Conn. 833, 839–40,
11 A.3d 658 (2011). The defendant has not persuaded
us that any of the three requirements have been met in the present case.
