Swain v. Swain ( 2022 )

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EARL W. SWAIN v. TINA N. SWAIN
(AC 44591)
Elgo, Alexander and Harper Js.
Syllabus
The plaintiff, whose marriage to the defendant previously had been dis-
solved, appealed to this court from the judgment of the trial court
granting in part the defendant’s motion to modify the existing child
support, custody, visitation and parental access orders with regard to
the parties’ four minor children. Pursuant to those orders, the plaintiff
had sole legal custody and primary physical residence of the children,
with a specific visiting and access schedule for the defendant and pay-
ment of child support from the defendant to the plaintiff. The defendant’s
motion requested, inter alia, sole custody of the children and a suspen-
sion of the support order. After a hearing, the court granted the defen-
dant’s motion to modify as to access and visitation, issued a revised
parenting schedule and reduced her weekly support obligation. On the
plaintiff’s appeal to this court, held that the plaintiff could not prevail
on his claim that the trial court improperly modified the orders as
to visitation, the parental access plan and child support because the
defendant’s motion sought to modify only custody: the plain language
of the defendant’s motion placed before the court the issues of custody,
visitation and the parental access schedule, the defendant testified at
the hearing that she had difficulties complying with the orders as to
child support and the parental access schedule and proposed a new
visitation and access schedule, and the plaintiff declined to present
rebuttal witnesses to the defendant’s testimony; moreover, none of the
requests by the plaintiff’s counsel for clarifications of the court’s oral
ruling concerned the scope of the ruling compared to the motion to mod-
ify.
Argued February 1—officially released June 21, 2022
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Middlesex and tried to the court, Shluger, J.;
judgment dissolving the marriage and granting certain
other relief; thereafter, the court, Diana, J., granted in
part the defendant’s motion to modify child support,
custody and visitation, and the plaintiff appealed to this
court. Affirmed.
Gregory A. Allen, with whom were Lauren E. Higgs,
and, on the brief, Alissa M. Korwek, for the appellant
(plaintiff).
Opinion
ELGO, J. The plaintiff, Earl W. Swain, appeals from
the judgment of the trial court granting in part a post-
judgment motion to modify filed by the self-represented
defendant, Tina N. Swain.1 On appeal, the plaintiff
claims that the court improperly modified the existing
orders as to visitation, the parental access plan, and
child support because the defendant’s motion to modify
sought only to modify custody.2 We disagree and,
accordingly, affirm the judgment of the court.
The following facts and procedural history are rele-
vant to our resolution of this appeal.3 On December
15, 2015, the court, after a contested trial, rendered
judgment dissolving the parties’ marriage by way of
memorandum of decision. The court originally awarded
the parties’ joint legal custody of their four minor chil-
dren, who were born in 2007, 2010, 2012, and 2013, with
final decision-making authority and primary residence
awarded to the plaintiff. The court ordered that the
defendant, who was then residing in Maine, shall have
visitation with the children on certain prescribed dates
and shall pay the plaintiff $164 per week in child sup-
port. The court further ordered that the parties shall
have telephone access with the children when not physi-
cally with them.
Following the dissolution of their marriage, the par-
ties engaged in seven years of contentious postdissolu-
tion proceedings. On February 22, 2018, the court, after
another contested hearing, awarded the plaintiff sole
legal custody and primary residence of the parties’ four
children. As for visitation and access, the court ordered
that the defendant, who was still residing in Maine,
shall have visitation with the children at specific times
on certain holidays and periods during the summer.
The court ordered that the defendant shall be responsi-
ble for all transportation related to her access, and that
the exchanges shall occur at the plaintiff’s residence
in Connecticut. As for child support, the court ordered
that the defendant shall pay the plaintiff $70 per week,
suspended during the defendant’s access periods.
On November 25, 2019, the court issued a postjudg-
ment order, pursuant to the parties’ agreement, modi-
fying the visitation and access schedule. Particularly,
the court ordered that the defendant, who had moved
to Virginia, shall have visitation with the children in
Connecticut for the weekends of Columbus Day, Martin
Luther King, Jr., Day, Presidents Day, Easter, and
Thanksgiving; Christmas between December 26 and
January 1; and the weeklong April vacation. The new
parental access plan also afforded the defendant visita-
tion with the children in Virginia for summer vacation
during the month of July.
On December 14, 2020, the defendant filed a motion
to modify the existing child support, custody, visitation,
and parental access orders.4 In that motion, the defen-
dant asserted that there was a substantial change in
circumstances because the plaintiff and his mother ‘‘are
incapacitated [with] COVID-19, put the children’s lives
in danger, [and] violated [Connecticut] rules.’’ As for
child support, the defendant sought that the court ‘‘sus-
pend [the] current support order.’’ As for custody, the
defendant requested that the court award ‘‘sole custody
to [the] defendant mother.’’ As for visitation and the
parental access schedule, the defendant requested that
the court order ‘‘no visitation for [the] plaintiff father
at this time due to contagious COVID-19 infection until
proof of negative test results’’ and that ‘‘after negative
test results [the] plaintiff to have same visitation sched-
ule that the defendant had.’’
On January 15, 2021, the court held a remote hearing
as to five pending motions, including the defendant’s
motion to modify.5 The plaintiff presented the testimony
of Old Saybrook Police Officer Charles Kostek, the
defendant, and Attorney Justine Rakich-Kelly, who was
the appointed guardian ad litem for the children, and
he also testified. The defendant then presented her case
by way of narrative testimony, with certain questions
from the court as to the issues raised by each of the
five motions at issue. The defendant relevantly testified
regarding her difficulty complying with the existing
orders as to child support and the parental access
schedule and her proposal for a new visitation and
access schedule. After the defendant rested her case,
the plaintiff declined the court’s invitation to present
any rebuttal witnesses.
At the conclusion of that hearing, the court issued
an oral ruling granting in part the defendant’s December
14, 2020 motion to modify the existing child support,
custody, and visitation orders. The court granted the
motion to modify as to access and visitation, holding
that it ‘‘find[s] the testimony of the defendant credible.
The parties have four children. The court is going to
grant the motion to modify with regard to [the defen-
dant’s] access. I believe it’s in the best interest of these
children, and I want to dial back the temperature on
all this.’’ The court issued a revised parental access
schedule providing that the defendant shall have visita-
tion with the children ‘‘for [the time between] the first
five days after the children end school and the five days
before they start school,’’ Christmas vacation, Thanks-
giving, and spring vacation. The court ordered that
transportation for visitation was to be completed on
the basis of an agreement of the parties, but, ‘‘[i]f there’s
no agreement on that, then one person drives down
and one person drives back.’’ The court also ordered
telephone access to be ‘‘Monday evening between 6:30
and 8:30, one call [on] Skype a week.’’ The court then
denied the defendant’s motion to modify as to custody,
holding that there was no material change in circum-
stances to justify her request for sole legal custody. The
court’s oral decision did not specifically address the
defendant’s motion to modify as to child support. After
the court issued its oral ruling, the plaintiff’s counsel
confirmed that the court did not ‘‘miss a motion,’’ and
asked for several clarifications, none of which con-
tested the scope of the court’s ruling compared to the
relief sought by the defendant’s motion to modify.
On the same day as the January 15, 2021 hearing,
the court issued a written order further granting the
defendant’s motion to modify as to visitation and child
support.6 The court ordered that ‘‘the defendant do all
the transportation for visitation and thereby reducing
her weekly child support obligation by $50 per week.
[The] [d]efendant’s child support payments to the plain-
tiff are suspended for any weeks that she has visitation
with the children for 5 days or more.’’7 The plaintiff
filed a motion to reargue the court’s decision, which
the court denied. This appeal followed.
On appeal, the plaintiff claims that the court improp-
erly modified the existing orders as to visitation, the
parental access plan, and child support because the
defendant’s motion to modify sought only to modify
custody.8 In support, the plaintiff argues that, ‘‘by the
court taking the action it did, the plaintiff was deprived
of an opportunity to argue and present evidence as to
the details of why the [then existing orders] should not
be changed . . . .’’9 We disagree.
We begin with the standard of review and relevant
legal principles. Because the plaintiff’s claim requires
us to interpret both the court’s orders as well as the
defendant’s motion to modify, our review is plenary.
See Meyers v. Livingston, Adler, Pulda, Meiklejohn &
Kelly, P.C., 311 Conn. 282, 290, 87 A.3d 534 (2014) (ple-
nary review applies to interpretation of pleadings);
Sosin v. Sosin, 300 Conn. 205, 217, 14 A.3d 307 (2011)
(plenary review applies to interpretation of trial court’s
judgment).
In general, a court’s decision is restricted to those
issues raised by the parties in their pleadings and in
argument. ‘‘[P]leadings have their place in our system
of jurisprudence. 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. . . . 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. . . . It is equally clear,
however, that the court must decide those issues raised
in the pleadings. . . . This rationale extends equally to
motions.’’ (Citation omitted; internal quotation marks
omitted.) Wheeler v. Beachcroft, LLC, 210 Conn. App.
725, 753, 271 A.3d 141 (2022); see also Doe v. Cochran,
332 Conn. 325, 333, 210 A.3d 469 (2019) (stating that
pleadings should be read broadly and realistically, not
narrowly and technically); Morneau v. State, 150 Conn.
App. 237, 239 n.2, 90 A.3d 1003 (outlining established
Connecticut policy of leniency toward self-represented
parties), cert. denied, 312 Conn. 926, 95 A.3d 522 (2014).
These pleading requirements in postdissolution mat-
ters ‘‘historically have been much less circumscribed
than in other types of actions.’’ Petrov v. Gueorguieva,
167 Conn. App. 505, 514, 146 A.3d 26 (2016). ‘‘[A]lthough
a court cannot determine a fact or issue beyond the
reasonable cognizance of the parties . . . our rules of
pleading are generally less restrictive as to what the
court can decide in these matters’’ because most post-
dissolution proceedings ‘‘are ultimately governed by
the child’s best interests.’’ (Citation omitted.) Id., 519.
Therefore, ‘‘[i]n the context of a postjudgment appeal,
if a review of the record demonstrates that an unpleaded
[issue] 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. . . . In making this
determination, our courts look not only to what
occurred during the hearing itself . . . but also to
whether actions occurring prior to the hearing placed
the party on notice as to the unpleaded issues or facts.’’
(Citations omitted; internal quotation marks omitted.)
Id., 517.
In the present case, it is clear from the defendant’s
motion to modify that she cumulatively sought to mod-
ify the existing child support, custody, visitation, and
parental access orders. Consequently, the plain lan-
guage of the defendant’s motion to modify, which she
filed as a self-represented party, placed before the court
the issues of custody, visitation, and the parental access
schedule. Additionally, the transcript of the January 15,
2021 hearing undercuts the plaintiff’s argument that he
was surprised that these issues were decided by the
court and that he was unable to present contrary evi-
dence. The defendant testified regarding her difficulties
complying with the existing orders as to child support
and the parental access schedule and her proposal for
a new visitation and access schedule.10 After the defen-
dant’s testimony regarding custody, child support, and
the visitation schedule, the plaintiff’s counsel declined
to present any rebuttal witnesses and confirmed that
the court did not ‘‘miss a motion.’’ The plaintiff’s counsel
then asked for several clarifications of the court’s oral
ruling, none of which concerned the scope of the court’s
ruling compared to the defendant’s motion to modify.
On the basis of both the language of the defendant’s
motion as well as the parties’ representations at the
January 15, 2021 hearing, we summarily reject the plain-
tiff’s claim on appeal.11
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant, now known as Tina Perez-Ocasio, has not participated
in this appeal. Accordingly, we decide this appeal on the basis of the record,
the plaintiff’s appellate brief, and the plaintiff’s oral argument.
2
The plaintiff organizes his appeal into two different claims challenging
the court’s orders on (1) visitation and parental access, and (2) child support.
To avoid substantive overlap, we consider the plaintiff’s claims together.
See Rozbicki v. Gisselbrecht, 152 Conn. App. 840, 845, 100 A.3d 909 (2014)
(reorganizing claims on appeal), cert. denied, 315 Conn. 922, 108 A.3d
1123 (2015).
3
At the outset, we note that the appendix to the plaintiff’s appellate brief
is incomplete, as it selectively excerpts portions of the record referenced
in his appellate brief, contains only photographs of certain filings, and does
not include a full copy of the defendant’s December 14, 2020 motion for
modification that is the subject of this appeal. See Practice Book (2021) § 67-
8 (b) (1) (directing that appellant’s appendix shall contain ‘‘in chronological
order, all relevant pleadings, including the operative complaint and any other
complaint at issue, motions, requests, findings, and opinions or decisions
of the trial court or other decision-making body’’). At oral argument before
this court, the plaintiff’s counsel indicated that the selective incorporation
of filings in his appendix was due to the manner in which he received the
filings from the defendant. The plaintiff’s incomplete appendix unnecessarily
complicates our review, and we do not condone the plaintiff’s noncompli-
ance. This deficiency, however, does not preclude our review of the plaintiff’s
claim on appeal because we are able to examine the physical trial court
file for the many filings not contained within his appendix. See Practice
Book § 60-2 (2) (this court may ‘‘consider any matter in the record of the
proceedings below necessary for the review of the issues presented by any
appeal, regardless of whether the matter has been included in any party
appendix’’); see also State v. Lawler, 30 Conn. App. 827, 828 n.2, 622 A.2d
1040 (1993) (excusing appellant’s failure to include pertinent material in his
appendix).
4
The plaintiff on appeal construes the defendant’s motion to modify as
seeking only to obtain sole legal custody of the children, and his appendix
contains a photograph of only the first page of this motion. That characteriza-
tion is unsupported by the content of the defendant’s motion to modify.
5
The other four motions heard by the court at the January 15, 2021 hearing
were the plaintiff’s August 12, 2020 motion for contempt, the plaintiff’s
August 14, 2020 motion for contempt, the plaintiff’s October 2, 2020 motion
for modification of visitation, and the plaintiff’s October 16, 2020 motion
for modification of visitation. Although the plaintiff’s appellate brief states
that the court denied all of his motions, a review of the transcript clearly
establishes that the court granted his October 2, 2020 motion to modify
visitation in order to ensure the parties’ compliance with COVID-19
safety protocols.
6
The plaintiff’s appellate brief asserts that this written order was not
issued until April 8, 2021. It is true that the court later issued a JDNO notice
of this January 15, 2021 written order on April 8, 2021. Although the plaintiff
may not have been aware of this January 15, 2021 written order until he
received the April 8, 2021 JDNO notice, it is apparent from the JDNO notice
itself as well as the trial court file that this written order was issued by the
court on the same date as its oral ruling at the January 15, 2021 hearing.
7
There is some uncertainty within the plaintiff’s appellate brief as to the
amount of the defendant’s child support obligation. At the January 15, 2021
hearing, the plaintiff’s counsel questioned the defendant regarding her child
support obligations imposed by Magistrate Gilman in the amount of $209
per week, to commence on November 19, 2020. Conversely, in his appellate
brief, the plaintiff does not identify which order was operative, and instead
represents that the court ‘‘reduced the defendant’s child support obligation
from $164 to $50 per week . . . .’’ This statement implies that the original
child support order of $164 from the court’s December 15, 2015 judgment
of dissolution—not the subsequent November 19, 2020 order by Magistrate
Gilman or the February 22, 2018 modification—was operative at the time
of the January 15, 2021 hearing. Regardless, the plaintiff misreads the court’s
January 15, 2021 written order because that order reduces the defendant’s
child support obligation ‘‘by $50 per week,’’ not orders the defendant to
pay $50 per week.
8
The plaintiff on appeal does not challenge the substantive merits of the
court’s decision on any other ground, including that the court’s decision
was not supported by evidence, the court failed to consider the pertinent
statutory factors, the court’s decision contained clearly erroneous factual
findings, the court’s decision was beyond the specific grounds for modifica-
tion alleged in the parties’ motions, or it otherwise was improper. Instead,
the plaintiff’s narrow appeal is limited to the scope of the court’s January
15, 2021 orders as compared to the existing orders that the defendant’ motion
to modify sought to change.
9
The plaintiff in passim makes a technical argument that the court improp-
erly modified the existing orders as to visitation and the parental access
plan because ‘‘both parties could not meet their burden in establishing that
a modification was in the best interest of the children because, according to
the factual finding of the trial court, no substantial change in circumstances
existed at the time of trial.’’ This argument conflates the differing standards
required to modify visitation, child support, and custody. See, e.g., Balaska
v. Balaska, 130 Conn. App. 510, 515, 25 A.3d 680 (2011) (‘‘[i]n ruling on a
motion to modify visitation, the court is not required to find as a threshold
matter that a change in circumstances has occurred’’). Accordingly, the
court’s determination that there was no substantial change in circumstances
sufficient to modify custody does not necessarily mean that the modification
of visitation and access is not supported by the best interests of the children.
At oral argument before this court, the plaintiff’s counsel repeatedly repre-
sented that the cases cited in his brief stand for the proposition that a court
must make the determination that a substantial change in circumstances
has occurred to modify an existing visitation order. A review of these cases
does not support the representations made by the plaintiff’s counsel. See
Dufresne v. Dufresne, 191 Conn. App. 532, 538–39, 215 A.3d 1259 (2019)
(outlining standard used by underlying trial court decision, which provided
that modification of custody requires determination that substantial change
in circumstances existed); Petrov v. Gueorguieva, 167 Conn. App. 505, 522
n.16, 146 A.3d 26 (2016) (holding that ‘‘there is an important distinction to
be drawn between motions to modify custody, which generally require a
material change in circumstances . . . and motions to modify visitation
alone, which do not require a material change’’ (citation omitted; emphasis
added)); Kelly v. Kelly, 54 Conn. App. 50, 55–57, 732 A.2d 808 (1999) (holding
that ‘‘material change in circumstances’’ is required to modify custody and
that modification of visitation is guided by best interest of child standard);
Emerick v. Emerick, 28 Conn. App. 794, 802, 613 A.2d 1351 (holding that
‘‘substantial change in circumstances’’ is required to modify child support
order, which ‘‘ ‘is wholly independent of the right of visitation’ ’’ (internal
quotation marks omitted)), cert. denied, 224 Conn. 915, 617 A.2d 171 (1992).
10
At oral argument before this court, the plaintiff’s counsel stated that
he was deprived of an opportunity to present evidence as to all of these
topics because neither party nor the court questioned Attorney Rakich-Kelly
as to the parties’ visitation and access rights. The transcript of the January
15, 2021 hearing, however, reveals that Attorney Rakich-Kelly specifically
was questioned by both parties and the court as to the adequacy of the
defendant’s visitation and access.
11
On the basis of the manner in which the plaintiff’s counsel presents
this appeal to this court—particularly the misleading statements in his appel-
late brief and at oral argument before this court; see footnotes 4, 5, 6, 7, 8,
and 10 of this opinion; selective excerption of filings within his appendix
including the motion that is the subject of this appeal; see footnote 3 of
this opinion; and the conflating legal arguments; see footnotes 8 and 9 of
this opinion—we are compelled to reiterate the admonition that ‘‘[a]ttorneys
have an obligation to act fairly and with candor in all of their dealings before
the court, which includes factual statements made in open court or in
pleadings and other written submissions.’’ (Emphasis in original.) Cum-
mings Enterprise, Inc. v. Moutinho, 211 Conn. App. 130, 134, 271 A.3d 1040(2022); see also Hartmann v. Prudential Ins. Co. of America, 9 F.3d 1207,
1214 (7th Cir. 1993) (‘‘we cannot have a rule that . . . an appellant can
serve us up a muddle in the hope that we or our law clerks will find
somewhere in it a reversible error’’). Although it is unfortunate that the
defendant, as a self-represented litigant, did not file a brief or appearance
in this appeal, that does not obviate, but rather underscores, the duty of
candor that the plaintiff’s counsel owes to the court.