Cabrera v. Cabrera

580 A.2d 1227, 23 Conn. App. 330, 1990 Conn. App. LEXIS 338
CourtConnecticut Appellate Court
DecidedSeptember 18, 1990
Docket8517
StatusPublished
Cited by37 cases

This text of 580 A.2d 1227 (Cabrera v. Cabrera) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cabrera v. Cabrera, 580 A.2d 1227, 23 Conn. App. 330, 1990 Conn. App. LEXIS 338 (Colo. Ct. App. 1990).

Opinions

Dupont, C. J.

In this action, the defendant appeals from the judgment of the state trial referee, acting as the court, dissolving his marriage to the plaintiff and making certain child custody and financial awards, and from its amended judgment awarding attorney’s fees to the counsel for the parties’ children. The defendant claims that the court improperly (1) excluded all [332]*332testimony of a psychologist consulted by the parties, (2) overruled at trial an existing court order that the defendant was entitled to an independent psychiatric examination of the plaintiff, (3) awarded sole custody of the two minor children to the plaintiff, and (4) made certain financial awards.

The court found certain relevant facts. The parties began dating when the plaintiff was thirteen and the defendant, then seventeen, asked the plaintiff's parents, apparently without consulting her, for permission to date the plaintiff on an exclusive basis. This relationship lasted until the parties married. The plaintiff was then seventeen, and the defendant, twenty-two. During the first year of the marriage, a child was born but died shortly after birth. The couple subsequently had two other children.

The defendant, a college graduate, earns approximately $60,000 a year and is a senior accountant with the Louis Dreyfus Corporation. The plaintiff is employed as an aide to a handicapped child in a school during the school year and earns $223.80 per week during that period. The court found that the parties’ marital problems surfaced when the plaintiff met a young man who was hired to do structural work at the parties’ home. The plaintiff became enamored of him, although, at the time of trial, no physical contact between the plaintiff and the worker had occurred, and, in fact, their only contact had been by mail or phone.

After the plaintiff informed the defendant of her feelings about the defendant’s treatment of her and her feelings about the worker, the defendant suggested joint marital counseling, to which the plaintiff agreed. A psychologist, Wendy Joondeph, was the marriage counselor retained. After several weekly sessions, she recommended that the plaintiff be hospitalized, and the plaintiff followed her advice. At that time, the plain[333]*333tiff was behaving in an unusual manner. Reportedly, she was often in bed and did not prepare meals for the family. After two weeks, the plaintiff was released from the hospital and returned home. Subsequently, she voluntarily spent two months in the hospital and continued in outpatient therapy with Joondeph for three months, after which she chose to discontinue both her sessions with Joondeph and medication. The plaintiff subsequently filed this dissolution action.

The plaintiff has not been in therapy since that time, but was evaluated by David Zucker, a psychiatrist, over a three to five month period. Zucker testified that in his opinion the plaintiff is presently capable of caring for the children, although she will probably need some support because of her dependent personality. She works thirty hours per week during the school year and arrives home each day at about the same time as her children.

The family relations report recommended that custody be given to the defendant father with supervised visitation to the plaintiff. That report was based on reports from Rye Psychiatric Hospital and Joondeph. The family relations worker who wrote that report had failed to talk to Zucker and conceded at trial that she had failed to obtain from him what she considered adequate information about his psychiatric examination of the plaintiff, which was more recent than those by Joondeph and Rye Psychiatric Hospital. The results of Zucker’s examination were, therefore, not taken into consideration even in a second, purportedly updated, family relations report. The court determined that the recent evaluation by Zucker was the appropriate one to be considered, based upon both Zucker’s testimony and that of the plaintiff. The court found that the plaintiff appeared to be a capable person.

[334]*334The court also found that from the time the divorce was filed, the defendant had “practically absented himself from home,” coming home only to eat by himself and to sleep. The court further found that his actions had resulted in his leaving the plaintiff in total charge of the home and children for a period of at least five months. Furthermore, the court found that “on the occasions when the defendant has asserted ‘management’ of the house, he has not discussed anything with the plaintiff but instead has called the police — a somewhat unusual way of helping to settle a domestic dispute. His reason for doing that he said was to make a record. The fact that it also had some effect on his wife and his children seemed to be of no consequence to him.” The court concluded that the defendant had been insensitive to the plaintiff’s needs during the marriage and that his recent acts underlined that insensitivity, that the “children love both parents, have no fear of their mother, say that she did all of the cooking and caring for them except when she was in the hospital, and that they would be comfortable living with either parent so long as [the children] were [together] in the same house.” The court then determined that the best interests of the children would be served by granting sole custody to the plaintiff. It based its determination upon the evidence, including the reports of the advocate for the children and of the family relations officer, and the testimony of Zucker.

The defendant was ordered to pay the plaintiff periodic alimony of $135 per week until her death, remarriage or cohabitation, and lump sum alimony of $6000. The plaintiff was given exclusive use and possession of the marital residence until the youngest child is eighteen years of age. The plaintiff was ordered to make all mortgage, tax and insurance payments on the house. In addition, the court entered certain orders regarding the bill from Zucker, and the current vested accrued [335]*335pension and retirement benefits of the defendant with his employer, Louis Dreyfus Corporation. The details of these additional orders are not at issue.

The same court subsequently granted the plaintiffs motion for counsel fees for the children’s counsel to be paid 50 percent by the plaintiff and 50 percent by the defendant.

I

General Statutes § 52-146c, pursuant to which Joondeph’s testimony was excluded, provides that where any person consults a licensed psychologist for the purpose of securing psychological services, the psychologist shall not disclose, in civil and criminal cases or in preliminary proceedings, “any communication made to [her] by [any] person while [the psychologist] is engaged in the practice of clinical psychology” unless the privilege is waived. The section further provides that in only two situations are such communications not privileged: (1) where they occur during the course of a court ordered examination; and (2) where a party introduces her psychological condition as an element of her claim or defense “and the judge finds that it is more important to the interests of justice that the communications be disclosed than that the relationship between the person and the psychologist be protected.” (Emphasis added.)1

The defendant asserts several bases for his claim that all of Joondeph’s testimony should not have been excluded pursuant to that statute. First, he argues that [336]

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Bluebook (online)
580 A.2d 1227, 23 Conn. App. 330, 1990 Conn. App. LEXIS 338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cabrera-v-cabrera-connappct-1990.