Tufano v. Tufano

556 A.2d 1036, 18 Conn. App. 119, 1989 Conn. App. LEXIS 110
CourtConnecticut Appellate Court
DecidedApril 11, 1989
Docket6771
StatusPublished
Cited by23 cases

This text of 556 A.2d 1036 (Tufano v. Tufano) 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
Tufano v. Tufano, 556 A.2d 1036, 18 Conn. App. 119, 1989 Conn. App. LEXIS 110 (Colo. Ct. App. 1989).

Opinion

Stoughton, J.

The plaintiff has appealed from a judgment finding her in contempt as a result of violations of orders concerning visitation. She claims that the court erred (1) in denying a motion for a continuance, (2) in finding that her failure to comply with the visitation schedule was wilful, and (3) in ordering her to pay costs and attorney’s fees, and a punitive fine.

The marriage between the plaintiff, now known as Deborah Ann Izzo, and the defendant was dissolved on February 20,1986. The custody of the one child of the marriage, then almost three years old, was awarded to the plaintiff. The paternal grandparents of the child were given permission to intervene in the action and were granted certain visitation rights, both pendente lite and as part of the judgment.

The child’s father, the defendant in the dissolution action, was an inmate in a Connecticut institution when the child was bom, and remained incarcerated throughout these proceedings. The visitation order permitted the grandparents to take the child to the institution to [121]*121see his father. It is apparent from our review of the entire file that the visitation orders have given rise to friction between the plaintiff and the grandparents. The file contains eight motions for contempt filed by the grandparents and one citation for contempt issued at their request. In the file, there are three motions for modification filed by the plaintiff and three filed by the grandparents.

As part of the judgment granting the dissolution on February 20,1986, the court granted visitation rights to the intervening paternal grandparents every second weekend each month. During these visits they were permitted to take the child to see his father. They also were allowed one full week during the summer and one day near Christmas.

The grandparents prepared a contempt citation, and a show cause order and summons was issued on November 16, 1987. The grandparents alleged that visitation during October and November had been denied to them. On November 27, 1987, the plaintiff filed a motion to modify the judgment and suspend visitation, alleging that the child did not want to visit the grandparents. On December 8, 1987, the plaintiff filed a motion for modification seeking to suspend visitation and alleging that the child did not want to visit either the grandparents or the defendant. On December 7, 1987, the grandparents filed a motion to modify the judgment by extending the visitation rights. On December 17, 1987, the grandparents filed a motion for contempt alleging that their December visitation had been denied them.

On December 17, 1987, the trial court held a hearing at which these matters were considered. The motions for modification were referred to the family relations division and the court ordered therapy for the child. The court further ordered that the December visi[122]*122tation be made up as offered on the weekend of December 19, that the November visitation be made up by three days between Christmas and New Year’s Day, that the October visitation be made up in January, 1988, and that there be visitation on December 22,1987, as agreed upon. There also was an order that the plaintiff obtain a note from a doctor if it became necessary to cancel visitation for medical reasons.

On December 18, 1987, the plaintiff took the child to a psychologist who had seen the boy previously. The psychologist spent a few minutes with the plaintiff and talked to the child for about twenty minutes. He concluded that the child did not want to visit his father or his grandparents, and he told the plaintiff that, at least on a temporary basis, he saw nothing to be gained from forcing the boy to do so.

On December 18, 1987, the plaintiff telephoned the grandparents and told them that she had taken the child to a psychologist and that the grandparents could not pick him up the next day. On December 22, 1987, the grandparents drove to the residence of the plaintiff to pick up the child and rang the doorbell, but they received no response.

On December 28,1987, the grandparents filed what they entitled their tenth motion for contempt, alleging the denial of visitation on December 19,1987, and December 22,1987. The plaintiff thereupon filed another motion to suspend visitation. The court scheduled these matters for a hearing on January 14,1988, and cleared the calendar for that date.

On January 14,1988, a lawyer from the office of the plaintiff’s counsel requested a continuance on the ground that she had not handled the file and that the plaintiff preferred to have J. Patrick Dwyer handle the case. The motion for continuance was denied, and the lawyer who was present proceeded with the case. [123]*123Dwyer arrived from another court late in the day and examined the psychologist who had been called as a witness for the plaintiff.

The court found that the plaintiff had withheld visitation wilfully and that the plaintiff was in contempt of court for intentionally violating orders for visitation in October, November, December 19, 20 and 22,1987, and the three days between Christmas and New Year’s Day. In order to purge herself from contempt, the plaintiff was ordered to make the following payments: attorney’s fees for the December 17, 1987 hearing of $500 plus costs of $58, to be paid on or before February 19, 1988; attorney’s fees for the January 14, 1988 hearing of $500 plus costs of $48.17, to be paid on or before March 18, 1988; payment of $100 for each of five missed visits, a total of $500, payment to be made to the intervening grandparents by April 18, 1988.

The plaintiff’s first claim of error arises out of her motion for continuance. A motion for continuance is addressed to the discretion of the trial court, and its ruling will not be overturned absent a showing of a clear abuse of that discretion. Vossbrinck v. Vossbrinck, 194 Conn. 229, 232, 478 A.2d 1011 (1984), cert. denied, 471 U.S. 1020, 105 S. Ct. 2048, 85 L. Ed. 2d 311 (1985); State v. Thomas, 15 Conn. App. 197, 201, 543 A.2d 1356 (1988). The burden of proof is upon the party claiming an abuse of discretion. State v. Thomas, supra, 202. We are especially hesitant to find an abuse of discretion when the motion is made on the day of trial. Thode v. Thode, 190 Conn. 694, 697, 462 A.2d 4 (1983). Every reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made. Ridgeway v. Ridgeway, 180 Conn. 533, 538, 429 A.2d 801 (1980). This matter had been assigned for January 14, 1988, and it was imperative for the court to resolve the dispute which had been smouldering for some time. Contrary to the plaintiff’s assertions, the proceedings were [124]*124not complex and were, in fact, straightforward. The plaintiff has not shown that she was prejudiced by being required to proceed before Dwyer had arrived and the trial court did not abuse its discretion in proceeding as it did.

. The plaintiff next claims that the trial court erred in finding that her violations of the visitation orders were wilful.

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Bluebook (online)
556 A.2d 1036, 18 Conn. App. 119, 1989 Conn. App. LEXIS 110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tufano-v-tufano-connappct-1989.