Petrov v. Gueorguieva , 167 Conn. App. 505 ( 2016 )

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LIUDMIL K. PETROV v. NATALIYA GUEORGUIEVA
(AC 37108)
Lavine, Alvord and Sullivan, Js.
Argued December 3, 2015—officially released August 9, 2016
(Appeal from Superior Court, judicial district of
Fairfield, Klatt, J. [judgment]; Hon. Constance L.
Epstein, judge trial referee [motions for contempt, to
modify custody].)
Norman A. Roberts II, with whom, on the brief, were
Anthony L. Cenatiempo and Tara C. Dugo, for the
appellant (defendant).
Nancy Aldrich, with whom was Roy H. Ervin, Jr.,
for the appellee (plaintiff).
Opinion
SULLIVAN, J. The defendant, Nataliya Gueorguieva,1
appeals from the July 29, 2014 judgment of the trial
court, granting the December 12, 2012 postjudgment
motion of the plaintiff, Liudmil K. Petrov, to modify the
primary physical custody of the parties’ minor child.
On appeal, the defendant claims that the court (1)
improperly modified primary physical custody of the
child when there was no material change in circum-
stances since the time of the last modification, (2)
improperly modified primary physical custody of the
child by failing to base its orders on present circum-
stances, and (3) abused its discretion by determining
that the change in primary physical custody was in the
best interests of the child. We disagree and, therefore,
affirm the judgment of the trial court.2
The following facts and procedural history are rele-
vant to this appeal. The defendant and the plaintiff are
the parents of the child. The defendant and the plaintiff,
who were never married, lived together in Fairfield
when the child was born, but separated one year after
her birth. For a period of time following their separa-
tion, both parties continued to reside in Fairfield.
On September 15, 2010, the plaintiff filed his initial
application, seeking joint legal custody and primary
physical custody of the child. The defendant submitted
an answer and cross complaint on October 7, 2010, in
which she sought, inter alia, joint legal custody, primary
physical custody, and a schedule of visitation for the
plaintiff. On January 20, 2011, the plaintiff submitted
an additional application, in which he again sought joint
legal custody and primary physical custody, as well as
child support.
As noted by the trial court, ‘‘[t]he two inch thick file
at the Superior Court reflects numerous back and forth
motions for findings of contempt and for other court
orders, with pendente lite agreements as to custody
and access.’’3 On May 8, 2012, the court, Klatt, J., held
a hearing on competing motions for modification of
custody filed by the plaintiff and the defendant,4 which
the parties agreed would operate as a final hearing on
the plaintiff’s custody application. In its July 10, 2012
memorandum of decision (2012 decision), the court
found that the defendant’s move to New York was for
a legitimate purpose, the location was reasonable in
light of that purpose, and it was in the best interests
of the child. Consequently, the court permitted the child
to relocate to the defendant’s home in New York. The
court also adopted the defendant’s proposed parental
responsibility plan, which was appended to its memo-
randum of decision. This plan provided, inter alia, that
the defendant would have primary physical custody of
the child and that the parents were to share legal cus-
tody, during which they were to consult one another and
jointly make decisions concerning the child’s health,
education, and religious upbringing.
On December 12, 2012, the plaintiff filed the motion
at issue in this appeal, requesting that the 2012 custodial
determination be modified, and a motion requesting
that Connecticut maintain jurisdiction over the child’s
custody. He also filed motions for contempt on Novem-
ber 16, 2012, and December 6, 2013. Prior to the April,
2014 hearing, both parties submitted proposed orders
concerning these motions.
The court, Hon. Constance L. Epstein, judge trial
referee, held a multiday hearing on the plaintiff’s
motions on April 22, 23, and 24, 2014.5 On July 29,
2014, the court issued a memorandum of decision (2014
decision). Adjudicating the plaintiff’s motions for con-
tempt, the court found the defendant in contempt for
her knowing and wilful violations of the court orders,
but refrained from ordering sanctions due to its resolu-
tion of the plaintiff’s motion to modify. With respect to
the plaintiff’s motion to modify, the court determined
that the undisputed fact that the child was about to
begin school full-time constituted a material change
in circumstances. On the basis of the testimonial and
documentary evidence presented over the three days,
the court held that it was in the best interests of the
child for the plaintiff to have primary physical custody.
This appeal followed. Additional facts will be discussed
as necessary to our decision.
Before we turn to the substance of the defendant’s
claims on appeal, we briefly discuss the applicable prin-
ciples of law governing postjudgment motions to modify
custody. ‘‘The standard of review in domestic relations
cases is well established. An appellate court will not
disturb a trial court’s orders in domestic relations cases
unless the court has abused its discretion or it is found
that it could not reasonably conclude as it did, based
on the facts presented. . . . In determining whether a
trial court has abused its broad discretion in domestic
relations matters, we allow every reasonable presump-
tion in favor of the correctness of its action . . . .
Thus, unless the trial court applied the wrong standard
of law, its decision is accorded great deference because
the trial court is in an advantageous position to assess
the personal factors so significant in domestic relations
cases . . . . A mere difference of opinion or judgment
cannot justify the intervention of this court. Nothing
short of a conviction that the action of the trial court
is one which discloses a clear abuse of discretion can
warrant our interference. . . .
‘‘General Statutes § 46b-56 provides trial courts with
the statutory authority to modify an order of custody or
visitation. When making that determination, however, a
court must satisfy two requirements. First, modification
of a custody award must be based upon either a material
change [in] circumstances which alters the court’s find-
ing of the best interests of the child . . . or a finding
that the custody order sought to be modified was not
based upon the best interests of the child.6 . . . Sec-
ond, the court shall consider the best interests of the
child and in doing so may consider several factors.7
. . . Before a court may modify a custody order, it
must find that there has been a material change in
circumstances since the prior order of the court, but
the ultimate test is the best interests of the child. . . .
These requirements are based on the interest in finality
of judgments . . . and the family’s need for stability.
. . . The burden of proving a change to be in the best
interest of the child rests on the party seeking the
change.’’ (Citations omitted; emphasis omitted; foot-
notes altered; internal quotation marks omitted.)
Clougherty v. Clougherty, 162 Conn. App. 857, 867–69,
133 A.3d 886, cert. denied, 320 Conn. 932, 134 A.3d
621 (2016).
I
The defendant asserts that the court improperly mod-
ified primary physical custody of the child when no
material change in circumstances had occurred since
the time of the last modification. The defendant argues
that, in making the determination that the child’s immi-
nent enrollment in school full-time constituted a mate-
rial change that justified a modification of the existing
custody order, the court erred because: (1) it impermis-
sibly based its decision on a change of circumstances
not alleged in the plaintiff’s motion to modify custody;
(2) it improperly relied on a prospective change of cir-
cumstances; and (3) the evidence shows that, under
the facts of this case, the child attending school full-
time was not a material change in circumstances.
With respect to her first argument, the defendant
argues that the plaintiff’s motion to modify listed only
three grounds, yet the court impermissibly premised
its determination on a fourth, unalleged ground. Conse-
quently, the defendant argues, the court’s judgment is
void. In response, the plaintiff contends both that the
court was not limited to the grounds asserted in the
motion to modify and, also, that the court, in fact, sub-
stantiated the grounds he had raised in his motion.8
Our rules of practice state what a party must include
in any motion to modify custody. Motions to modify
custody are governed by Practice Book § 25-26. Section
25-26 (e) provides: ‘‘Each motion for modification shall
state the specific factual and legal basis for the claimed
modification and shall include the outstanding order
and date thereof to which the motion for modification
is addressed.’’ We have never had the opportunity to
interpret this particular provision in the context of
motions to modify custody. Reviewing this requirement
in the context of motions to modify support orders, we
have held that a court’s reliance on a ground not raised
in a motion to modify is an abuse of discretion in the
absence of an amendment to the motion. Prial v. Prial,
67 Conn. App. 7, 12–13, 787 A.2d 50 (2001); see also
Monette v. Monette, 102 Conn. App. 1, 10 n.15, 924 A.2d
894 (2007).
We note that the requirements for what the court
may permissibly decide or order on pleadings involving
custody matters historically have been much less cir-
cumscribed than in other types of actions. For instance,
addressing competing petitions to modify a custody
arrangement, our Supreme Court stated in Morrill v.
Morrill, 83 Conn. 479, 489, 77 A. 1 (1910), that ‘‘[t]he
fact that the order made does not conform to the prayer
of either the petition or cross-petition furnishes no
objection to its validity. It was the court’s duty to take
such action as in its judgment the situation called for.
In the performance of this duty it was unhampered,
either in its inquiry or in its decision, by the allegations
or prayers of the parents. While they appeared before
the court in the outward guise of parties litigant, their
position was not that which is ordinarily occupied by
parties in actions to determine their rights, and the
respondent in urging this objection makes the mistake
of attempting to apply the rules of pleading to the pro-
ceeding.’’ See also Simons v. Simons, 172 Conn. 341,
348, 374 A.2d 1040 (1977) (‘‘[t]he court, in determining
custody, has a duty to use its judgment, regardless of
the allegations or prayers of the parents’’ [emphasis
added; internal quotation marks omitted]); Kidwell v.
Calderon, 98 Conn. App. 754, 757–59, 911 A.2d 342
(2006) (court did not abuse discretion or violate moth-
er’s due process rights in giving father sole custody,
despite his complaint requesting only joint legal custody
and any further orders deemed necessary, when, inter
alia, sole custody was recommended in both report of
family relations officer and testimony of family relations
officer and guardian ad litem at hearing); Fiddelman
v. Redmon, 37 Conn. App. 397, 403–404, 656 A.2d 234
(1995) (no limitation requiring courts to adopt only
those specific custodial orders sought by parties
because ‘‘the court has an independent duty to deter-
mine an arrangement that meets the best interests of
the child’’).
Even in the context of child custody proceedings,
however, the pleadings play an important role in provid-
ing notice as to the claims before the court. See Stroh-
meyer v. Strohmeyer, 183 Conn. 353, 354–56, 439 A.2d
367 (1981) (reversing decision granting parents joint
custody without further hearing where mother sought
sole custody, father did not contest request for sole
custody in pleadings or at trial, and court suggested
at trial that it would give sole custody to mother). In
exercising its statutory authority to inquire into the
best interests of the child, the court cannot sua sponte
decide a matter that has not been put in issue, either
by the parties or by the court itself. Rather, it ‘‘must
. . . exercise that authority in a manner consistent with
the due process requirements of fair notice and reason-
able opportunity to be heard. Without a hearing, a trial
court may not adjudicate a question of such vital impor-
tance to the parties, and one so inherently fact-bound
in its resolution. Before a parent is permanently
deprived of legal custody, or any change is made
therein, the usual and ordinary procedures of a proper
and orderly hearing must be observed.’’ Id., 356.
Finally, on prior occasions, this court has relied upon
certain principles governing pleadings to address post-
judgment motions in contexts similar to this case. See
Gosselin v. Gosselin, 110 Conn. App. 142, 147–48, 955
A.2d 60 (2008) (motion to modify alimony); Breiter v.
Breiter, 80 Conn. App. 332, 335–36, 835 A.2d 111 (2003)
(motion for modification or clarification of separation
agreement); Lundborg v. Lundborg, 15 Conn. App. 156,
159–60, 543 A.2d 783 (motion to modify child support),
cert. denied, 209 Conn. 818, 551 A.2d 756 (1988). There-
fore, a brief review of these principles will be helpful.
‘‘[P]leadings have their place in our system of juris-
prudence. While they are not held to the strict and
artificial standard that once prevailed, we still cling to
the belief, even in these iconoclastic days, that no
orderly administration of justice is possible without
them. . . . The purpose of a complaint or counterclaim
is to limit the issues at trial, and such pleadings are
calculated to prevent surprise. . . . It is fundamental
in our law that the right of a [party] to recover is limited
to the allegations in his [pleading]. . . . Facts found
but not averred cannot be made the basis for a recovery.
. . . Thus, it is clear that [t]he court is not permitted
to decide issues outside of those raised in the pleadings.
. . . A judgment in the absence of written pleadings
defining the issues would not merely be erroneous, it
would be void.’’ (Citation omitted; internal quotation
marks omitted.) Breiter v. Breiter, supra, 80 Conn. App.
335–36; see also Westfall v. Westfall, 46 Conn. App.
182, 185, 698 A.2d 927 (1997) (‘‘[a] judgment cannot be
founded on a finding of facts not in issue, although they
may have been shown in evidence to which no proper
objection was taken’’ [internal quotation marks
omitted]).
‘‘The complaint is required only to fairly put the defen-
dant on notice of the claims against him. . . . [T]he
interpretation of pleadings is always a question of law
for the court. . . . The modern trend, which is fol-
lowed in Connecticut, is to construe pleadings broadly
and realistically, rather than narrowly and technically.
. . . Although essential allegations may not be supplied
by conjecture or remote implication . . . the com-
plaint must be read in its entirety in such a way as to
give effect to the pleading with reference to the general
theory upon which it proceeded, and do substantial
justice between the parties. . . . As long as the plead-
ings provide sufficient notice of the facts claimed and
the issues to be tried and do not surprise or prejudice
the opposing party, we will not conclude that the com-
plaint is insufficient to allow recovery.’’ (Internal quota-
tion marks omitted.) Data-Flow Technologies, LLC v.
Harte Nissan, Inc., 111 Conn. App. 118, 132, 958 A.2d
195 (2008).
‘‘[I]n the context of a postjudgment appeal, if a review
of the record demonstrates that an unpleaded cause of
action actually was litigated at trial without objection
such that the opposing party cannot claim surprise or
prejudice, the judgment will not be disturbed on the
basis of a pleading irregularity.’’ Landry v. Spitz, 102
Conn. App. 34, 43–44, 925 A.2d 334 (2007). In making
this determination, our courts look not only to what
occurred during the hearing itself; see Gosselin v.
Gosselin, supra, 110 Conn. App. 147 (both parties intro-
duced evidence concerning changes to income and
assets); Mullin v. Mullin, 28 Conn. App. 632, 635–36,
612 A.2d 796 (1992) (both sides argued unpleaded basis
for modifying child support without objection and nei-
ther addressed ground actually raised in motion); but
also to whether actions occurring prior to the hearing
placed the party on notice as to the unpleaded issues
or facts. See Stamford v. Ten Rugby Street, LLC, 164
Conn. App. 49, 78–79, A.3d (sufficient notice
for injunction when, inter alia, defendant received cease
and desist order and was separately instructed by zon-
ing enforcement officer that officer believed regulations
barred ‘‘all crushing, not simply rock crushing’’), cert.
denied, 321 Conn. 923, A.3d (2016); see also
Gosselin v. Gosselin, supra, 147 (issue related to value
of parties’ assets raised during depositions before hear-
ing on motion to modify).
Additional facts are necessary to our resolution of
the parties’ arguments. In his motion to modify, the
plaintiff asserted that there were three material changes
that justified modifying custody; these changes were
that ‘‘the defendant pulled the child out of preschool,
changed the child’s medical insurance and filed motions
in New York.’’ No other ground is listed, and the plaintiff
never sought to amend his motion.
In the 2014 decision, the court found that, during the
past year, the defendant had enrolled the child in a
morning enrichment program and an afternoon kinder-
garten. Although the court also made findings of fact
related to at least two of the grounds raised in the
plaintiff’s motion to modify,9 the court explicitly found
only one material change in circumstances: ‘‘There is
certainly a substantial change in circumstances in that
the child is now entering school full-time, and needs
permanency and [the] ability to engage in extracurricu-
lar activities.’’ Thus, the court’s finding that the
impending start of full-time school, which was not
pleaded in the plaintiff’s motion to modify custody,
constituted a material change in circumstances appears
to be technically improper because it was not alleged
specifically in the plaintiff’s motion.
Nonetheless, that determination alone does not end
our inquiry. See Landry v. Spitz, supra, 102 Conn. App.
43–44. The purpose underlying the requirements of
Practice Book § 25-26 (g), similar to pleadings in other
types of civil actions, is to provide notice of the alleged
bases for the modification. See Gosselin v. Gosselin,
supra, 110 Conn. App. 147. We also recognize that,
unlike other types of civil actions, child custody actions
are ultimately governed by the child’s best interests.
See General Statutes § 46b-56 (b) and (c); Barros v.
Barros, 309 Conn. 499, 517, 72 A.3d 367 (2013) (‘‘[t]he
touchstone for the court’s custody determination is the
best interests of the child’’ [internal quotation marks
omitted]).10 Consequently, although a court cannot
determine a fact or issue beyond the reasonable cogni-
zance of the parties; see Strohmeyer v. Strohmeyer,
supra, 183 Conn. 355–56; our rules of pleading are gener-
ally less restrictive as to what the court can decide in
these matters. See Morrill v. Morrill, supra, 83 Conn.
459; Kidwell v. Calderon, supra, 98 Conn. App. 758–59.
It is with these principles in mind that we consider
whether the defendant was unduly prejudiced or sur-
prised by the court’s consideration of this ground not
raised in the plaintiff’s filed motion. An important con-
sideration in this respect is whether she was aware
that the changes brought on by the child’s impending
commencement of full-time schooling were at issue
even without having been pleaded. See Gosselin v.
Gosselin, supra, 110 Conn. App. 147. The proposition
that full-time school would require readjustment of the
existing orders was presaged prior to the hearing on
the plaintiff’s motion to modify. In the 2012 decision,
Judge Klatt found: ‘‘[T]he court will find that the defen-
dant’s relocation was for a legitimate purpose, the loca-
tion is reasonable in light of that purpose, and that it is
in the best interests of the [child]. While the defendant’s
relocation is not distant, it is nevertheless necessary to
make some changes regarding the parenting schedule
for the benefit of the [child]. In the future, more may
be necessary, given that the child will soon reach school
age.’’11 (Emphasis added.) Similarly, though recom-
mending in her report that the custody orders remained
unchanged, the family relations officer noted: ‘‘The need
for the change [to the visitation orders] in the parenting
plan arises from the fact that [the child] has started
kindergarten. The current routine has this young girl
traveling too frequently and too far now that she is in
school. This will be even more challenging once her
school day is full-time.’’ (Emphasis added.) Thus, the
fact that the impending start of full-time school by the
child—no longer a distant concern at the time of the
hearing on the plaintiff’s motion to modify—might be
raised in some capacity was firmly within the contem-
plation of the parties prior to the April, 2014 hearing.12
Further, the matter was discussed explicitly during
the hearing on the plaintiff’s motion to modify custody
in terms that made it clear that the plaintiff was
asserting that the start of full-time school itself was
not only a factor to be considered in the child’s best
interests, but also represented a material change in
circumstances. In particular, the plaintiff’s attorney
posed multiple questions to the family relations officer
concerning the circumstances governing the prior order
and whether the commencement of full-time school
would require a change to the parties’ parenting plan.
The guardian ad litem similarly testified about her
understanding as to what the court intended in the
2012 decision when it addressed the impact of full-time
school on the parenting plan.13 She also testified as to
the changes caused by the commencement of full-time
schooling, and the impact of school on the child’s life
and well-being.14 Finally, the attorneys for both parties
emphasized in closing argument the disruption that the
child’s full-time attendance at school would have on
the existing parenting plan.15
Under these circumstances, it is clear that the defen-
dant had notice that this issue was presented as the
material change in circumstances, and, that she had
a full and fair opportunity to address this issue. The
questions by the plaintiff’s attorney, as well as the
responses to those questions by the family relations
officer during cross-examination and by the guardian
ad litem on direct examination, clearly indicate that the
impending commencement of full-time school was to
be considered, not merely as a factor in appraising the
child’s present best interests, but as a significant change
in itself. The defendant also had a full and fair opportu-
nity to address this issue during the hearing. Addition-
ally, the defendant’s attorney argued during closing
argument that the child’s attending school full-time was
the ‘‘big change’’ in this case. Consequently, we con-
clude that the failure of the plaintiff to raise this ground
in filing his motion to modify did not unduly prejudice
or surprise the defendant.16
Because the defendant had notice that the child’s
change to full-time schooling might constitute a mate-
rial change in circumstances that would require revis-
iting the existing custody and visitation orders, this
claim was framed as such during the hearing on the
plaintiff’s motion to modify, and the defendant had a
full and fair opportunity to address this issue during
the hearing, we agree with the plaintiff that the defen-
dant has failed to preserve for appeal her other argu-
ments related to the court’s determination that a
material change was the fact that the child was about
to begin school full-time.17 Therefore, the defendant has
waived her two remaining claims; see Practice Book
§ 60-5; and we will not reach them.18
II
The defendant’s remaining claims allege various
errors by the court in its appraisal of the child’s best
interests. She argues that the court erred in modifying
the primary physical custody of the child without basing
its orders on her present best interests. In particular,
the defendant points to two distinct aspects of the 2014
decision, which she argues demonstrate that the court
was not considering the present best interests of the
child: the court’s stated concerns about potential or
possible future circumstances and risks;19 and the
court’s ‘‘hyper-focused’’ reliance on information that
occurred prior to the 2012 decision. Thus, the defendant
argues, the court impermissibly premised its decision
on both speculation and stale evidence, and not on the
child’s present best interests.
In modifying a custody order, the court is required
to determine the best interests of the child. See General
Statutes § 46b-56 (b).20 ‘‘Among the various factors the
court may consider when determining the best interest
of the child are the parties’ parenting skills . . . the
child’s emotional ties to each parent . . . the psycho-
logical instability of the parent and whether the child
is in a stable and loving environment.21 . . . In reaching
a decision as to what is in the best interests of a child,
the court is vested with broad discretion and its ruling
will be reversed only upon a showing that some legal
principle or right has been violated or that the discretion
has been abused.’’ (Footnote added; internal quotation
marks omitted.) Malave v. Ortiz, 114 Conn. App. 414,
424–25, 970 A.2d 743 (2009).
‘‘In making a determination of custody . . . the trial
court is bound to consider the child’s present best inter-
ests and not what would have been in her best interests
at some previous time.’’ (Emphasis omitted; internal
quotation marks omitted.) Blake v. Blake, 207 Conn.
217, 224, 541 A.2d 1201 (1988). ‘‘In the exercise of its
awesome responsibility to find the most salutary custo-
dial arrangement . . . the court must however take
account of the parents’ past behavior, since it must
evaluate their present and future parenting ability and
the consistency of their parenting for the purpose of
determining which parent will better foster the chil-
dren’s growth, development and well-being.’’ Yontef v.
Yontef, 185 Conn. 275, 283, 440 A.2d 899 (1981); accord
O’Neill v. O’Neill, 13 Conn. App. 300, 304, 536 A.2d 978
(‘‘a party’s prior conduct . . . may have a direct bear-
ing on his or her present fitness to be a custodial par-
ent’’), cert. denied, 207 Conn. 806, 540 A.2d 374 (1988).
In the context of a modification hearing, whether,
and to what degree, a court may consider behavior
that precedes the order being modified depends on the
purpose for which it is being considered. ‘‘[B]efore an
order as to custody . . . of children may be modified
there must have been a material change of circum-
stances after the order was issued. . . . According to
this rule, circumstances existing prior to or at the time
of the initial custody order are not grounds for a change
of custody unless since that order there has been a
material change in circumstances which puts into ques-
tion the propriety of continuing the existing custody
order.22 . . . If such a material change is found, the
court may then consider past conduct as it bears on
the present character of a parent and the suitability of
that parent as custodian of the child.’’ (Citations omit-
ted; footnote added; internal quotation marks omitted.)
Simons v. Simons, supra, 172 Conn. 342–43.
After a careful review of the 2014 decision and the
record, we disagree with the defendant that the state-
ments made by the court in the 2014 decision demon-
strate that it was engaged in anything other than an
examination of the present best interests of the child
when it considered this past conduct. Although the
court discussed many actions that preceded the 2012
decision, it appears to have relied on these actions to
place in context the defendant’s more recent actions
as continuing a pattern of behavior that has interfered
over several years with the parental relationship
between the plaintiff and the child.23 As such, we cannot
conclude that the court erred in according some weight
to this parental behavior now that the child was about
to begin school full-time, as there was evidence con-
cerning the effect that her entering school full-time
would have on the child’s schedule, schoolwork, and
extracurricular activities and her resulting availability
to the noncustodial parent.
The defendant also contends that the statements by
the court that it had concerns regarding certain possibil-
ities that might arise suggest that the court engaged in
mere speculation concerning the child’s best interests.
We disagree.
In addition to the court’s explicit findings that the
parties have considerable trouble communicating, there
also were indications in the file and evidence before
the court that the parties historically had been better
able to resolve issues than they were at the time of the
hearing24 and that recent efforts to rectify their issues
communicating had been unsuccessful.25 The court also
heard testimony from the guardian ad litem that, if the
parties did not work on their communication issues
with a coparenting counselor, it would be ‘‘problematic’’
for the child. On the basis of evidence presented, the
court found that the child had been unable to participate
in certain activities due to the parties’ inability to reach
an agreement. Under these circumstances, the court’s
fear that any continued deterioration in the parties’
ability to communicate would negatively impact the
child was not unreasonable or merely speculative.
Rather, the court considered the past and present
behavior of the parties, and their present and future
ability to parent the child, as it was explicitly permitted
to do pursuant to our law; see General Statutes § 46b-
56 (c); Blake v. Blake, supra, 207 Conn. 224–25; and
made a determination that, in light of the fact that the
child was to begin school full-time, her then best inter-
ests required giving the plaintiff primary physical
custody.
We note further that the court’s primary focus
throughout its memorandum of decision was clearly on
which parent was better suited to address the child’s
needs as she was about to begin school full-time. An
examination of a child’s best interests permits a court
to consider not only which parent is better able to
meet the child’s present needs, but also permits some
consideration of how those present needs affect the
child’s long-term best interests. See Blake v. Blake,
supra, 207 Conn. 224–25 (court must ‘‘evaluate [par-
ents’] present and future parenting ability and the con-
sistency of their parenting for the purpose of
determining which parent will better foster the chil-
dren’s growth, development and well-being’’ [internal
quotation marks omitted]); cf. Newman v. Newman,
235 Conn. 82, 96, 663 A.2d 980 (1995) (guardian ad
litem may recommend against child’s articulated wishes
because ‘‘the contrary course of action would be in
the child’s long term best interests, psychologically or
financially’’ [emphasis added]).
Finally, the defendant contends that the court
improperly disregarded the testimony and recommen-
dations of both the family relations officer and the
guardian ad litem. Clearly, the trial court is not required
to accord testimonial evidence any particular weight,
and it may ignore or adopt, in whole or in part, such
testimony as it weighs the credibility of the witnesses.26
See Yontef v. Yontef, supra, 185 Conn. 281; Brown v.
Brown, 132 Conn. App. 30, 40, 31 A.3d 55 (2011); Azia
v. DiLascia, 64 Conn. App. 540, 548 n.9, 780 A.2d 992,
cert. denied, 258 Conn. 914, 782 A.2d 1241 (2001).
In summation, our review of a court’s judgment on
a motion to modify custody generally is limited to
whether it abused its discretion, both with respect to
its determination of whether a material change in cir-
cumstances has occurred; see Clougherty v. Clough-
erty, supra, 162 Conn. App. 868; and with respect to
whether modifying custody is in the child’s best inter-
ests. See Hibbard v. Hibbard, 139 Conn. App. 10, 21,
55 A.3d 301 (2012). ‘‘As has often been explained, the
foundation for this standard is that the trial court is in
a clearly advantageous position to assess the personal
factors significant to a domestic relations case . . . .’’
(Internal quotation marks omitted.) Id. We also accord
deference to the court’s assessment of witness credibil-
ity and the weight to be accorded to their testimony.
Id., 25. On the record before us, we are unable to con-
clude that the defendant has demonstrated that the
court abused its discretion in the 2014 decision.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Prior to the hearing before the trial court on the motion to modify custody
at issue in this appeal, the defendant’s attorney informed the court that the
defendant had changed her last name to Dimitrova.
2
We note that in appeals involving a minor child, a guardian ad litem is
required to submit certain documentation pursuant to our rules of practice.
See Practice Book § 67-13 (guardian ad litem required to file either own
brief, statement adopting brief of appellant or appellee, or statement
explaining why issues on appeal do not implicate child’s interests). Although
listed as a recipient of all three briefs filed in this appeal pursuant to Practice
Book § 67-2, the guardian ad litem did not file an appearance, submit the
documentation required by Practice Book § 67-13, or attend oral argument
before this court. Both parties were aware of this fact before beginning
their argument to this court, and neither side objected to proceeding without
the guardian ad litem’s input. The guardian ad litem testified at the hearing
on the motion to modify custody that physical custody should remain with
the defendant; these transcripts are part of the record, and no information
has been brought to this court’s attention suggesting that the guardian’s
position has changed since that hearing. Thus, under these unusual circum-
stances, we will address the merits of this appeal without the documentation
required by Practice Book § 67-13.
3
In reviewing the procedural history of this case, the court noted, inter
alia, that, during the pendency of his April, 2011 motion to modify custody,
the plaintiff filed a motion seeking an order preventing the defendant from
moving the child to New York. On July 14, 2011, the court, Schofield, J.,
entered an order that the parties were required to maintain their Connecticut
residences until further order of the court. Despite this order, the defendant
moved to New York with the child. Subsequently, Judge Schofield found
the defendant in contempt of court, and physical custody of the child was
awarded to the plaintiff in a separate order of the court, Frankel, J.
4
The plaintiff’s additional August 25, 2011 motion for an order concerning
vacation issues and his April 12, 2012 motion for contempt were heard also
by the court.
5
We note that the defendant filed a motion to modify visitation on April
1, 2013. Although not listed as one of the motions that the court addressed in
its memorandum of decision, the issues concerning the defendant’s proposed
changes to visitation appear to have been addressed in the April, 2014
hearing.
6
Neither party has claimed that the 2012 decision was not in the best
interests of the child.
7
General Statutes § 46b-56 (c) provides in relevant part a nonexhaustive
list of factors that a court may consider when modifying a custody order.
The enumerated factors include: ‘‘(1) The temperament and developmental
needs of the child; (2) the capacity and the disposition of the parents to
understand and meet the needs of the child; (3) any relevant and material
information obtained from the child, including the informed preferences of
the child; (4) the wishes of the child’s parents as to custody; (5) the past
and current interaction and relationship of the child with each parent, the
child’s siblings and any other person who may significantly affect the best
interests of the child; (6) the willingness and ability of each parent to
facilitate and encourage such continuing parent-child relationship between
the child and the other parent as is appropriate, including compliance with
any court orders; (7) any manipulation by or coercive behavior of the parents
in an effort to involve the child in the parents’ dispute; (8) the ability of
each parent to be actively involved in the life of the child; (9) the child’s
adjustment to his or her home, school and community environments; (10)
the length of time that the child has lived in a stable and satisfactory
environment and the desirability of maintaining continuity in such environ-
ment, provided the court may consider favorably a parent who voluntarily
leaves the child’s family home pendente lite in order to alleviate stress in the
household; (11) the stability of the child’s existing or proposed residences, or
both; (12) the mental and physical health of all individuals involved, except
that a disability of a proposed custodial parent or other party, in and of
itself, shall not be determinative of custody unless the proposed custodial
arrangement is not in the best interests of the child; (13) the child’s cultural
background; (14) the effect on the child of the actions of an abuser, if any
domestic violence has occurred between the parents or between a parent
and another individual or the child; (15) whether the child or a sibling of
the child has been abused or neglected, as defined respectively in section
46b-120; and (16) whether the party satisfactorily completed participation
in a parenting education program established pursuant to section 46b-
69b. . . .’’
8
The plaintiff also asserts that, because the defendant neither objected to
testimony concerning the changes involving full-time school, nor otherwise
argued to the trial court that this change could not constitute a material
change of circumstances, she has waived any ability to claim it as error on
appeal. The defendant responds that her attorney had noted that there were
only three grounds alleged in the plaintiff’s motion to modify and that she
was under no obligation to presume that the trial court would commit legal
error when entering its orders.
We will consider the defendant’s first claim of error that there was no
allegation that there was a material change of circumstances on the basis
of the imminent full-time attendance of the child in school. We do so because
the defendant’s attorney asserted multiple times during the course of the
April, 2014 hearing that only three grounds were alleged as material changes
in circumstances in the plaintiff’s motion to modify custody. If we disagree
with this first claim, however, we will consider whether the defendant’s
remaining arguments about the court’s consideration of, or reliance on, the
child’s impending commencement of full-time schooling were not preserved
for appellate review.
9
Specifically, the court found that the defendant had filed motions seeking
child support and to modify visitation in New York, even after a Connecticut
court had unambiguously ordered that jurisdiction remain in Connecticut;
see footnote 3 of this opinion; and that she had ‘‘unilaterally changed pre-
school and child care arrangements without consultation with [the plaintiff].’’
10
Indeed, in the context of a procedural due process claim, our Supreme
Court has noted that ‘‘the [parent’s] custody interest is legitimate only to
the extent that those procedures facilitate an accurate custody determina-
tion, that is, a custody determination consistent with the child’s best inter-
est.’’ Barros v. Barros, supra, 309 Conn. 509. The parent’s interest, though
legitimate, is diminished further relative to the child’s best interests in cases
such as this one, where both parents are seeking custody. See id., 509–10.
11
We disagree with the defendant that Judge Klatt’s statements in the
2012 decision concerning prospective changes to the parenting plan indicate
that the court necessarily contemplated only changes to the visitation sched-
ule. In particular, we note that, although the court stated in the text of its
memorandum of decision that it would allow the relocation, the court’s
actual custody order does not appear directly there; rather, it incorporated
the defendant’s parenting plan in its entirety, which defined both the custody
and visitation rights of each parent. Further, the explicit recognition in the
2012 decision that the child’s beginning full-time school might result in
changes to the parenting plan makes this case distinguishable from our
recent decision in Clougherty v. Clougherty, supra, 162 Conn. App. 857. In
that case, we held that the trial court had not abused its discretion in finding
that no material change in circumstances had occurred due to the child’s
entering elementary school because the judge that entered the original
custody order ‘‘contemplated that the child would grow up and attend school
in the state of his primary residence.’’ Id., 871.
12
We also recognize that during the period between the 2012 decision
and the April, 2014 hearing, the defendant herself had relied on a prospective
change in the child’s schooling as justifying a modification of the existing
custody and visitation orders. In her April 1, 2013 motion to modify, she
noted that ‘‘the [child] will soon be attending school on a regular basis and
the [defendant] does not believe that the current parenting time schedule
. . . will continue to be appropriate at that time,’’ and requested that the
court modify the visitation schedule based on this impending change.
Although we note that it seems likely that the defendant intended the refer-
ence to be the child’s regular attendance in half-day kindergarten, which
had not yet begun when her motion was filed, her reliance on it demonstrates,
at the very least, that she was aware prior to the April, 2014 hearing that
changes in the child’s schooling would be disruptive to the current parent-
ing plan.
13
In response to the plaintiff’s questions during direct examination, the
guardian ad litem testified that her understanding of Judge Klatt’s statements
in the 2012 decision was that a change would be required because the 2012
decision was structured as ‘‘a true shared custody arrangement,’’ and this
arrangement would not work once the child started school full-time. The
guardian ad litem later testified as to her belief that ‘‘the fact that [the child
is] going to [full-time] school is the more critical change than the [fact that]
. . . the parties have lived apart since . . . Judge Klatt’s order.’’
14
The guardian ad litem testified during direct examination that she did
not view first grade as comparable to either preschool or kindergarten
because first grade would be ‘‘more demanding’’ on the child. Although she
agreed with the characterization by the plaintiff’s attorney that attending full-
time school would be comparable to the current arrangement of a morning
enrichment program and an afternoon kindergarten in terms of the time
that the child spent away from home, the guardian ad litem also recognized
that there were several important differences. Specifically, she noted that
the enrichment program is ‘‘probably more fun’’ than full-time school would
be, and agreed with the plaintiff’s attorney that full-time school would include
a number of accompanying changes, such as activities, sports, homework,
and after-school functions.
15
In her closing argument, the plaintiff’s attorney stated that, ‘‘if [the
plaintiff] were to have the child more of the time for school purposes in
Fairfield, it would be a better situation, [in] that the parties would communi-
cate better, which is the ultimate goal, as well, in the terms of the best
interests of the child.’’ Similarly, in urging that physical custody remain with
the defendant and that the court adopt whatever orders that it deemed
appropriate, the defendant’s attorney in his closing argument directed the
court’s attention to the statements by the family relations officer and guard-
ian ad litem. In particular, the defendant’s attorney noted that ‘‘the fact that
the child is in school’’ is ‘‘our big change here.’’
16
We agree with the defendant that there is an important distinction to
be drawn between motions to modify custody, which generally require a
material change in circumstances; see Clougherty v. Clougherty, supra, 162
Conn. App. 868; and motions to modify visitation alone, which do not require
a material change. Balaska v. Balaska, 130 Conn. App. 510, 515–16, 25 A.3d
680 (2011); Szczerkowski v. Karmelowicz, 60 Conn. App. 429, 433, 759 A.2d
1050 (2000). Under the circumstances of this case, however, we do not
believe any reliance by the defendant on this distinction to have been prejudi-
cial to her or to have surprised her.
17
For reasons already discussed, we disagree with the defendant’s asser-
tion that these matters arose subsequent to trial. We also note that, although
the defendant’s attorney stated at trial that only three grounds were raised
in the plaintiff’s motion; see footnote 8 of this opinion; at no point did he
assert that the impending commencement of full-time schooling could not
constitute a material change of circumstances, either absolutely because it
had yet to occur, or under the circumstances of this case because there
was not a fundamental difference between full-time school and the child’s
present enrollment in the morning enrichment program and afternoon kin-
dergarten. ‘‘[A]n appellate court is under no obligation to consider a claim
that is not distinctly raised at the trial level. . . . The requirement that [a]
claim be raised distinctly means that it must be so stated as to bring to the
attention of the court the precise matter on which its decision is being
asked.’’ (Citations omitted; emphasis in original; internal quotation marks
omitted.) White v. Mazda Motor of America, Inc., 313 Conn. 610, 619–20,
99 A.3d 1079 (2014).
18
Even if we were to consider these arguments to the extent that they
could influence the result of this appeal, we do not conclude that a different
outcome would be required for two reasons. First, this court has held that
evidence of a prospective event occurring within a few months of a hearing
on a motion to modify custody can constitute a material change in circum-
stances. See Gillespie v. Jenkins, 127 Conn. App. 228, 234, 14 A.3d 1019
(2011) (trial court could reasonably find mother’s impending retirement
‘‘change in circumstances that allowed her more time to deal with the child’s
needs’’). Second, the court had evidence before it that full-time school was
not comparable in many important ways to the child’s current schedule,
even though full-time schooling might be comparable to the current schedule
in terms of the length of time that the child was physically present. See
footnote 14 of this opinion.
A court’s determination of whether a material change in circumstances
has occurred is a fact-specific and individualized evaluation; see Clougherty
v. Clougherty, supra, 162 Conn. App. 870 (noting that ‘‘no bright-line rules
exist’’ for making this determination, but ‘‘several relevant considerations’’
exist); see also Hibbard v. Hibbard, 139 Conn. App. 10, 22–23, 55 A.3d 301
(2012) (upholding implicit finding of material change in circumstances where
trial court found that disputes over visitation became more frequent and
contentious, and thereby rendered original order unworkable); and is
reviewed for an abuse of discretion. See Clougherty v. Clougherty, supra, 873;
27C C.J.S. 255, Divorce § 1053 (2005) (‘‘[t]he determination of the existence of
changed circumstances is a matter of discretion’’). We discern no abuse of
discretion in these findings by the court on the record before us.
19
In particular, the defendant directs this court’s attention to the state-
ments by the trial court that it was troubled by ‘‘the distinct possibility that
these problems will grow in frequency, intensity, and severity, and will
negatively affect the child.’’
20
General Statutes § 46b-56 (b) provides in relevant part: ‘‘In making or
modifying any order . . . the rights and responsibilities of both parents
shall be considered and the court shall enter orders accordingly that serve
the best interests of the child and provide the child with the active and
consistent involvement of both parents commensurate with their abilities
and interests. . . .’’
21
As noted previously, § 46b-56 (c) provides a nonexclusive list of factors
that a court may consider in determining the child’s best interests. See
footnote 7 of this opinion.
22
The court obviously must consider the facts on which the prior order
or modification was premised in determining whether the circumstances
have, in fact, materially changed subsequent to the order being modified.
See Malave v. Ortiz, supra, 114 Conn. App. 424.
23
Thus, we also disagree with the defendant’s argument that the court’s
consideration of certain aspects related to the defendant’s 2011 move to
New York constitutes an impermissible attempt to relitigate the relocation
or a determination by this court that the 2012 decision was not, in fact, in
the child’s best interests. Rather, the court relied primarily on that evidence
for the purposes of considering the child’s best interests in light of the
impending commencement of full-time school rather than as a punitive
collateral attack on the defendant’s move to New York.
24
In the 2012 decision, Judge Klatt stated: ‘‘The parties have in the past
reached agreements over a parenting plan for custody and visitation, and
any subsequent modifications.’’ Further, the plaintiff testified at the hearing
on this motion to modify that the communication between the parties had
been better when he had physical custody and that they were able to commu-
nicate civilly and through e-mail, text, and phone calls.
25
Pursuant to the 2012 decision, the parties were required to use myfami-
lywizard.com; both parties admitted to the court, however, that by April,
2014, they were no longer using the website. A subsequent court order
required the parties to attend coparenting counseling; after attending a few
sessions, however, the parties had not made any further appointments and
were not attending counseling at the time of the hearing on the motion to
modify at issue in this appeal.
26
It is important to note that the family relations officer admitted during
cross-examination that there had been significant changes since she had
finished her report, and she stated that the report should be updated because
of those changes. Thus, it is difficult to understand how the court’s alleged
failure to give this report and recommendation any significant weight is
indicative of error.