Martocchio v. Savoir ( 2015 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
HENRY J. MARTOCCHIO v. STEPHANIE
SAVOIR ET AL.
(AC 36368)
Gruendel, Keller and Borden, Js.
Argued February 4—officially released March 31, 2015
(Appeal from Superior Court, judicial district of
Tolland, Shluger, J.)
Henry J. Martocchio, self-represented, the appel-
lant (plaintiff).
JoAnn Paul, for the appellees (defendant Roland
Savoir et al.).
Opinion
PER CURIAM. This case involves a question of visita-
tion rights for the defendant grandparents, Ronald
Savoir and Tina Savoir, to see their minor grandchild.1
The plaintiff father, Henry J. Martocchio, appeals from
the decision of the trial court clarifying its judgment
awarding him sole custody of the child. The plaintiff
raises seventeen distinct issues that largely challenge
the clarification as substantially altering the underlying
judgment and the Connecticut statutory structure that
authorizes the grandparents to visit their grandchild.
He also alleges fraud on the part of the grandparents,
as well as violations of his due process rights, the Ameri-
cans with Disabilities Act, 42 U.S.C. § 12101 et seq., and
the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq.
He finally raises a challenge to the subject matter juris-
diction of the trial court, alleging that the court failed to
establish that the grandparents had standing to pursue a
third-party visitation claim against the wishes of a fit
parent pursuant to Roth v. Weston, 259 Conn. 202, 789
A.2d 431 (2002). Because this court recently addressed
the issue of subject matter jurisdiction in a previous
decision, Martocchio v. Savoir, 153 Conn. App. 492, 101
A.3d 953 (2014) (standing appeal), and because there
is no active controversy before this court, we dismiss
this appeal as moot.2
The complex history of the parties’ dispute involves
a protracted disagreement about the medical treatment
for the child. The plaintiff and Stephanie Savoir are the
parents of the child, who was born in 2004. The plaintiff
and Savoir never married, and until 2006, the plaintiff
was unaware that he was the father of the child. In
April, 2006, the grandparents filed an application with
the Probate Court to seek immediate temporary custody
of the child on the ground that Savoir was not properly
caring for the child. The Probate Court awarded tempo-
rary custody to the grandparents, and later appointed
the grandparents as the child’s temporary legal guard-
ians. Savoir subsequently informed the plaintiff that he
was the child’s father, and the plaintiff began a paternity
action in the Probate Court.
In November, 2006, the action was transferred to the
Superior Court, Shluger, J., who awarded the plaintiff
sole custody of the child on January 31, 2008. Shortly
thereafter, a dispute arose between the plaintiff and
the grandparents regarding the medical treatment of
the child. In response, the plaintiff filed a motion to
terminate the grandparents’ visitation rights, and the
grandparents filed a motion to modify the court order,
seeking custody of the child. Following several rounds
of motions, on July 28, 2008, the trial court rendered
judgment awarding sole custody to the plaintiff and
granting the grandparents visitation rights. In doing so,
the court determined that, as a factual matter, the grand-
parents had developed a relationship with the child akin
to that of a natural parent. In October, 2011, Savoir’s
parental rights were terminated with her consent.3
The grandparents then filed a motion for contempt
on January 11, 2013, claiming that the plaintiff was
denying them their visitation rights in violation of Judge
Shluger’s order. The plaintiff filed a number of motions
in response, including a motion to dismiss the grandpar-
ents’ motion for contempt. Among the plaintiff’s many
arguments in his motion to dismiss, he asserted that
the grandparents lacked standing to move for contempt
because they lost their right to visitation when Savoir’s
parental rights were terminated.
On May 17, 2013, the court, Abery-Wetstone, J., ren-
dered a decision on the plaintiff’s motion to dismiss,
as well as eight other motions filed by the plaintiff. In
that decision, the court concluded that the grandpar-
ents’ visitation rights were contingent upon their satis-
faction of the standards articulated in Roth v. Weston,
supra, 250 Conn. 234–35. The court concluded that,
pursuant to Judge Shluger’s July 28, 2008 judgment, the
grandparents had already satisfied the Roth standards,
and that the plaintiff’s failure to appeal the judgment
resulted in his waiving a challenge to the grandparents’
standing. Following the court’s decision, the plaintiff
timely filed the standing appeal.
While the standing appeal was pending, the grandpar-
ents’ motion for contempt was heard by Judge Abery-
Wetstone on October 24, 2013. Judge Abery-Wetstone
recommended that the grandparents seek a clarification
from Judge Shluger as to whether his July 28, 2008
judgment concluded that the grandparents had standing
to pursue visitation. The grandparents subsequently
moved for clarification from Judge Shluger of his July
28, 2008 judgment. On November 4, 2013, Judge Shluger
issued a clarification, in which he found that the grand-
parents have a parent-like relationship with the child
and that to deny them access would cause real and
significant harm to the child. On November 20, 2013,
the plaintiff moved to reargue the clarification, which
was granted by Judge Shluger on November 26, 2013.
No reargument has yet been scheduled. This appeal
followed. See footnote 2 of this opinion.
While the present appeal was pending, this court ren-
dered its decision in the standing appeal. In the standing
appeal, this court reversed Judge Abery-Wetstone’s May
17, 2013 ruling, concluding that Judge Shluger’s prior
judgment should not have been used to determine
whether the grandparents had satisfied the standing
requirements under Roth. Martocchio v. Savoir, supra,
153 Conn. App. 507. As a consequence, the case was
remanded to the trial court to conduct a new hearing
on the grandparent’s standing to seek third-party visita-
tion. Id.
The plaintiff argues in his brief to this court that his
rights have been violated, including his fundamental
right to parent his child, his right to due process guaran-
teed by the Fourteenth Amendment, and certain rights
afforded by the Americans with Disabilities Act and
other federal statutes. We cannot address any of these
arguments, however, because we lack subject matter
jurisdiction over this appeal. The present appeal is moot
as a result of this court’s decision in the standing appeal.
‘‘Mootness is a question of justiciability that must be
determined as a threshold matter because it implicates
[this] court’s subject matter jurisdiction. . . . Because
courts are established to resolve actual controversies,
before a claimed controversy is entitled to a resolution
on the merits it must be justiciable . . . . Justiciability
requires (1) that there be an actual controversy between
or among the parties to the dispute . . . (2) that the
interests of the parties be adverse . . . (3) that the
matter in controversy [is] capable of being adjudicated
by judicial power . . . and (4) that the determination
of the controversy will result in practical relief to the
complainant. . . . A case is considered moot if [the
court] cannot grant the appellant any practical relief
through its disposition of the merits . . . . Because
mootness implicates this court’s subject matter jurisdic-
tion, it raises a question of law over which we exercise
plenary review.’’ (Internal quotation marks omitted.)
Wyatt Energy, Inc. v. Motiva Enterprises, LLC, 308
Conn. 719, 736, 66 A.3d 848 (2013).
‘‘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 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. . . . 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.’’ (Emphasis
added; internal quotation marks omitted.) Burbank v.
Board of Education, 299 Conn. 833, 839, 11 A.3d 658
(2011).
In the present appeal, the grandparents clarified at
oral argument before this court that they elected to
abandon their motion for contempt and, in fact, had
properly filed a withdrawal of that motion in the Supe-
rior Court. They conceded that if they were to pursue
their visitation rights in the future, they would be
required to submit a new petition, at which time they
would be evaluated for standing under Roth pursuant
to this court’s decision in the standing appeal. As there
is no active controversy before us, we cannot provide
any form of practical, meaningful relief to the plaintiff,
who has retained sole custody of his child throughout
these proceedings. See Edgewood Village, Inc. v. Hous-
ing Authority of New Haven, 54 Conn. App. 164, 167,
734 A.2d 589 (1999).
The plaintiff argues that his allegations of violations
of the Americans with Disabilities Act and other federal
statutes provide sufficient subject matter jurisdiction to
make the case justiciable before this court. We disagree.
The documents filed in this case alleging violations of
that act and other federal statutes, as well as the plain-
tiff’s due process rights, specifically name individuals
and entities who are not parties to this proceeding.
Accordingly, the allegations do not constitute an actual
controversy between the plaintiff and the grandparents,
and are thus nonjusticiable in this forum. Wyatt Energy,
Inc. v. Motiva Enterprises, LLC, supra, 308 Conn. 736.
Moreover, even if there were still an active contro-
versy before us, it is not clear what form of relief this
court could provide the plaintiff. This court previously
remanded this case to the trial court to conduct a new
hearing as to whether the grandparents satisfy the
standing requirement for visitation pursuant to Roth v.
Weston, supra, 259 Conn. 202. Insofar as the plaintiff
challenged the standing of the grandparents in the pre-
sent appeal, this court has already addressed that issue.
Any action taken in the present appeal would as a conse-
quence be cumulative.4
The appeal is dismissed.
1
At the time of the initial paternity action in this case, the plaintiff named
three defendants. The defendants Ronald Savoir and Tina Savoir are the
child’s maternal grandparents. We refer to them as the grandparents in this
opinion. The defendant Stephanie Savoir is the mother of the child and is
not a party to this appeal.
2
Because we dismiss the present appeal on the ground of mootness,
we need not consider whether the appeal was taken from an appealable
final judgment.
3
At or about the same time Savoir’s parental rights were terminated, the
plaintiff filed two documents with the trial court in this proceeding entitled
‘‘Complaint Objection Protest.’’ The documents presented unclear allega-
tions of violations of federal law and the Americans with Disabilities Act
by a variety of members of the judiciary, state officials, and attorneys. As
far as can be discerned by an examination of the record, the plaintiff did
not clarify the meaning of the documents, and thus the trial court took no
action on them.
4
We also conclude as a necessity that this case does not fall within
our ‘‘capable of repetition, yet evading review’’ exception to the mootness
doctrine. See In re Pricilla A., 122 Conn. App. 832, 836, 2 A.3d 24 (2010).
The issue is neither of such limited duration nor of such public importance
to require review despite its mootness. Id.