Clougherty v. Clougherty ( 2016 )

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LETICIA CLOUGHERTY v. KEVIN CLOUGHERTY
(AC 36886)
(AC 36887)
Lavine, Beach and Mihalakos, Js.
Argued November 18, 2015—officially released February 9, 2016
(Appeal from Superior Court, judicial district of New
London, Regional Family Trial Docket at Middletown,
Gordon, J. [dissolution judgment]; Adelman, J. [motion
to modify custody, motion for counsel fees].)
William H. Cashman, for the appellant-appellee
(defendant).
Kenneth J. McDonnell, for the appellee-appellant
(plaintiff).
Paige S. Quilliam, guardian ad litem, for the
minor child.
Opinion
LAVINE, J. The defendant, Kevin Clougherty, appeals
from the judgment of the trial court denying his postdis-
solution motion to modify the court’s custody order
regarding the parties’ minor child. The defendant claims
that the trial court abused its discretion by denying his
motion to modify physical custody. The plaintiff, Leticia
Clougherty, cross appeals from the judgment of the trial
court denying her motion for additional attorney’s fees.
We affirm the judgment of the trial court.
The following undisputed facts found by the court,
and procedural history, are relevant to this appeal. The
parties were married in Texas in 2003. Originally, the
plaintiff was from Texas, and the defendant was from
Massachusetts. They moved to Connecticut in 2004
because the defendant had a job opportunity in this
state. The plaintiff worked for her family’s business,
Aztec Roofing and Sheet Metal Corporation (Aztec
Roofing), in Houston, Texas, and continued to do so
when the parties moved to Connecticut. She traveled
back and forth to Houston on a regular basis during
the marriage. Her travel became a major issue between
her and the defendant. The couple had a son in 2006. By
June, 2008, the marriage had broken down irretrievably,
and the plaintiff commenced an action for dissolution
of marriage. The plaintiff wanted to return to Houston
with the child because of her family and employment
ties to Texas, but the defendant wanted the child to
remain in Connecticut.
The court, Gordon, J., granted the judgment of disso-
lution on December 15, 2009. As this court recounted
in a previous appeal in this case: ‘‘The court also
awarded the parties joint legal custody and shared phys-
ical custody of their child. In doing so, the court
observed that living in Connecticut had made the plain-
tiff physically and emotionally ill because her life was
completely integrated in Texas, where she enjoyed ‘a
rich and wonderful life.’ The court found that the plain-
tiff lacked a job or any significant ties in Connecticut,
and had not thrived living away from her family of origin
and the family business, which provided her with the
identity that she needed. In discussing where the child
primarily would reside, the court determined that the
plaintiff was ‘doing a little bit better of a job as a parent’
than the defendant at that time but not in any great
qualitative sense. The court expressed concern over the
child’s ‘failure to thrive’ during the disintegration of the
parties’ relationship. The court also observed that the
child had a close relationship with the plaintiff’s large,
extended family in Texas, which resulted in his experi-
encing a richer and more vivacious life there than in
Connecticut. The court, therefore, concluded that it was
in the child’s best interest to allow the plaintiff to return
to Texas with the child. Accordingly, the court ordered
the parties to maintain two residences for the child,
one in Texas with the plaintiff and the other in Connecti-
cut with the defendant, and it set forth a visitation
schedule for the defendant.’’ Clougherty v. Clougherty,
131 Conn. App. 270, 271–72, 26 A.3d 704, cert. denied,
302 Conn. 948, 31 A.3d 383 (2011).
‘‘[T]he defendant filed (1) a motion seeking to have
a supplemental examination of the plaintiff and her
family in Texas, (2) a motion to clarify the judgment
with respect to various terms of the visitation schedule,
and (3) a motion to open the judgment.’’ Id., 272. Judge
Gordon denied all of the motions, and the defendant
appealed claiming that the trial court erred in allowing
the plaintiff to relocate to Texas with the child. Id. This
court affirmed the judgment.
A little more than five months later, on February 23,
2012, the defendant filed the motion for modification
of custody at issue in the present appeal, claiming that
there had been a material change in circumstances and
that it was in the best interests of the child to modify
the custody order. On July 12, 2012, the court, Shluger,
J., ruled on a number of motions filed by the plaintiff.
Judge Shluger awarded her $15,000 in attorney’s fees
to defend the defendant’s motion for modification of
custody. On December 12, 2013, the plaintiff moved for
additional attorney’s fees, stating that she had
exhausted the initial award of $15,000. She filed an
affidavit of attorney’s fees on April 14, 2014, seeking
an additional $22,003.87.
The court, Adelman, J., held a hearing on the defen-
dant’s motion for modification and the plaintiff’s motion
for additional attorney’s fees on April 9 through April
11, 2014. The court heard testimony from both parties,
a friend and former coworker of the defendant in Texas,
and the guardian ad litem, Attorney Susan Perrin
Geenty.1 The parties presented evidence, including cop-
ies of numerous e-mail and text messages between
them, and a written psychological evaluation prepared
by Keith Roeder, doctor of psychology, in June, 2013,
that updated Roeder’s initial psychological evaluation
completed in 2009. The court issued a memorandum
of decision on May 5, 2014, finding that there was no
material change in circumstances warranting a change
of physical custody, and therefore denied the defen-
dant’s motion to modify custody. The court also denied
the plaintiff’s December 12, 2013 motion for additional
attorney’s fees. The defendant’s appeal and the plain-
tiff’s cross appeal followed and were consolidated.
Additional facts will be set forth as necessary.
I
The defendant claims that the court abused its discre-
tion when denying his postdissolution motion to modify
custody in finding that no material change in circum-
stances had occurred since the dissolution of the mar-
riage, arguing that the child is not thriving with the
plaintiff, and suggesting that they are no longer enjoying
a ‘‘rich and wonderful life’’ in Texas. He sought to dem-
onstrate this in the trial court by providing a litany of
the plaintiff’s economic misfortunes and examples of
when she purportedly had been inattentive as a parent
to the child’s welfare and academic needs. He raises
the same arguments on appeal.
The following additional facts are relevant to this
claim. In regard to the plaintiff’s financial situation, at
the time of the dissolution, she worked for her family’s
business, Aztec Roofing, which then was in chapter
11 bankruptcy proceedings. After the dissolution, the
company converted from a chapter 11 to a chapter 7
bankruptcy. This resulted in Aztec Roofing’s dissolu-
tion. Judge Adelman determined that this was not a
material change in circumstances, noting that Judge
Gordon had recognized at the marriage dissolution trial
that the business already was in serious financial trou-
ble. Judge Adelman also found that since the dissolution
judgment, which contained the initial custody order,
the plaintiff had opened her own company, Elias Com-
mercial Roofing Systems.
The defendant presented evidence that since the judg-
ment of dissolution the plaintiff had changed residences
after losing a home in foreclosure and no longer was
living with her brother, who Judge Gordon found was
a positive influence in the child’s life. The defendant
argued that each of these facts demonstrated a material
change in circumstances from the initial custody order.
The court noted that ‘‘[t]aking such items as indepen-
dent factors gives the defendant a false sense of [Judge
Gordon’s] rationale in providing the minor child with
two primary residences . . . [as the initial custody
order] was not based on Aztec Roofing Company, the
house in Houston or [the brother]. Rather, it was based
on the court’s understanding that the plaintiff was terri-
bly unhappy living in Connecticut and that she had
virtually no life in Connecticut outside of her family
and her home. The plaintiff had never truly left Texas.
The [dissolution] court made this abundantly clear
when Judge Gordon wrote: ‘I do think that I have to
say that for Ms. Clougherty and [the child], it’s probably
in the best interests of the child to let her go back to
Texas . . . [b]ecause I have a child and a mother who
have not thrived living away from the thing that gives
her the identity that she needs and it’s a rich and won-
derful life in Texas.’’
The defendant presented at the hearing before Judge
Adelman, and reiterates in his brief on appeal, numer-
ous allegations that the plaintiff was financially irre-
sponsible and inattentive to the child’s physical needs.
The court determined that ‘‘[d]espite his claims, there
is no proof that the plaintiff and the minor child are
homeless, going without food, or that the child’s physi-
cal needs are not adequately being met.’’ Although the
defendant attempted to argue that his home was larger
and in a nicer neighborhood, the court stated that this
was ‘‘somewhat offensive,’’ and noted that the ‘‘Con-
necticut courts do not award custody of minor children
to the wealthier parent . . . .’’ See, e.g., In re Juvenile
Appeal (Anonymous), 177 Conn. 648, 661–62, 420 A.2d
875 (1979) (‘‘[t]he parent’s loss of custody should not
. . . be premised solely on tangible material benefits to
the child at the expense of the intangible, non-material
advantages which a parent’s care can provide even
when the parent has only limited financial resources’’
[internal quotation marks omitted]).
The defendant also alleged that there was a material
change in circumstances due to the academic needs of
the child, who had begun to attend school. The court
concluded that this did not constitute a material change
in circumstances, as Judge Gordon’s custody order pro-
vided adjustments to the parental access schedule in
consideration that the child would grow up and
attend school.2
The defendant claimed that the child has not thrived
in Texas because the plaintiff has been inattentive to
his academic needs. The defendant alleged that the
child was often tardy to school, and the plaintiff
neglected to help the child with homework and other
academic matters. The guardian ad litem testified that
the defendant was more attentive to the academic needs
of the child and recommended that the plaintiff improve
in this area. However, she also testified that the child’s
current school was very good, and the child was doing
well. The court determined that the child’s report card
did not show that he was struggling in any graded sub-
jects. The report card also showed his attendance
record for the first three quarters of the 2013-14 school
year. Although the child did arrive late on four days in
each of the first two quarters of the 2013-14 school year
and had one unexcused absence, he did not arrive late
or miss school in the third quarter.
The court also addressed the difficulties of the parties
in managing their coparenting responsibilities, which
is relevant on appeal because the defendant claims that
a material change in circumstances occurred since the
dissolution because he is now a ‘‘better’’ parent than
the plaintiff.3 The court determined that the plaintiff
and the defendant did not communicate properly, nor
coparent in a reasonably effective manner. The court
recognized that the plaintiff bears some of the blame
in the problems with coparenting, stating that ‘‘she often
fails to communicate with the defendant and even has
provided him with incorrect or false information.’’ It
noted that the defendant ‘‘[was] certainly the more
attentive parent and more than compensates for any
inadequacies on the part of the plaintiff. It is quite clear
that the dual primary residences has only worked so
well because of the defendant’s complete commitment
to seeing his son despite the cost in travel related
expenses, maintaining a second residence in Houston,
and the physical toll of going back and forth between
Texas and Connecticut so often.’’ The court noted fur-
ther that much of the child’s academic success was
likely due to the defendant’s committed efforts and
involvement in the child’s life.
However, the court also noted the ‘‘truly horrible
behavior of the defendant in the years between the
dissolution decree and the [time of the hearing].’’ The
defendant admitted, and apologized at the hearing, that
he tried to intimidate the plaintiff to accede to his custo-
dial demands. He hired a former Federal Bureau of
Investigation (FBI) agent who on one occasion threat-
ened the plaintiff with criminal action just moments
after she brought the child to the defendant for visita-
tion. He hired the same FBI agent to contact the credi-
tors of the failed family business and encourage them
to reopen the bankruptcy proceedings in hopes of
exacerbating the plaintiff’s financial difficulties. The
defendant’s aggressive behavior toward the plaintiff
was a substantial factor for why the guardian ad litem
and Roeder both recommended that the court not alter
the existing custody arrangement. The court noted that,
although the defendant has obeyed the court’s order,
‘‘[t]his behavior was prompted by the defendant’s inabil-
ity to accept the judgment of the court even after his
unsuccessful appeal’’ and ‘‘show[s] his efforts to totally
undermine the plaintiff—the minor child’s mother.’’
The court further found that the ‘‘[guardian ad litem]
has very serious concerns about the future if the court
should order the minor child to live primarily in Con-
necticut. She said with little hesitancy or qualification
that if the child were to return to Connecticut, the
defendant would destroy the plaintiff and her role as the
child’s mother.’’ The court recognized that the plaintiff
must heed the guardian ad litem’s and Roeder’s recom-
mendations that she be more attentive, but also noted
that the plaintiff was dealing with ‘‘the demands on a
single mother who is also running a business . . . .’’
Overall, the court concluded that, although the plaintiff
exhibited obvious shortcomings,4 ‘‘it is hardly grounds
to make major changes to the custodial orders.’’ The
court recognized that ‘‘[b]oth parties have demon-
strated parental behavior that is not in the best interests
of the child,’’ but ultimately found that ‘‘[t]here have
been no significant changes in circumstances since the
filing of the dissolution judgment on December 15,
2009.’’ The defendant claims that this represents an
abuse of discretion.
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 rela-
tions matters, we allow every reasonable presumption
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 . . . .’’ (Internal quotation marks omitted.)
Coury v. Coury, 161 Conn. App. 271, 281, A.3d
(2015). ‘‘A mere difference of opinion or judgment can-
not 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.’’ (Internal quotation marks omitted.)
Lane v. Lane, 64 Conn. App. 255, 257, 779 A.2d 859(2001).
‘‘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, ‘modifica-
tion of a custody award must be based upon either a
material change [in] circumstances which alters the
court’s finding 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.’ . . .
Second, ‘the court shall consider the best interests of
the child and in doing so may consider’ several factors.
General Statutes § 46b-56 (c).5’’ (Citation omitted;
emphasis added; footnote added.) Harris v. Hamilton,
141 Conn. App. 208, 219, 61 A.3d 542 (2013). ‘‘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.’’ (Emphasis added;
internal quotation marks omitted.) Hibbard v. Hibbard,
139 Conn. App. 10, 21, 55 A.3d 301 (2012). ‘‘These
requirements are based on the interest in finality of
judgments . . . and the family’s need for stability.’’
(Citation omitted.) Denardo v. Bergamo, 272 Conn.
500, 513, 863 A.2d 686 (2005). ‘‘The burden of proving
a change to be in the best interest of the child rests
on the party seeking the change.’’ (Internal quotation
marks omitted.) Barros v. Barros, 309 Conn. 499, 506
n.6, 72 A.3d 367 (2013).
Not all changes occurring in the time between the
prior custody order and the motion for modification
are material. See Simons v. Simons, 172 Conn. 341,
344, 374 A.2d 1040 (1977). ‘‘Although there are no bright-
line rules for determining when a material change in
circumstances warranting the modification of custody
has occurred, there are several relevant considerations,
including whether . . . the change was not known or
reasonably anticipated when the order was entered, and
the change affects the child’s well-being in a meaningful
way.’’ 27C C.J.S. 255, Divorce § 1053 n.6 (2005).
In reviewing the record, we conclude that the court
did not abuse its discretion in determining that there
has not been a material change in circumstances since
the dissolution of the marriage. The dissolution court
found that the plaintiff did not have any connection to
Connecticut and that it was in the best interests of the
child for the plaintiff to return to Texas where they
both could thrive and enjoy a ‘‘rich and wonderful life’’
surrounded by the plaintiff’s extended family. To prevail
on his motion to modify custody, the defendant had to
do more than list every assertedly detrimental change
in the parties’ and child’s lives since the judgment of
dissolution. He had to demonstrate that a material
change in circumstances occurred that altered the
court’s initial finding that it was in the best interests
of the child to live in Texas. See Kelly v. Kelly, 54 Conn.
App. 51, 55, 732 A.2d 808 (1999). On appeal, he reiterates
a list of circumstances that he believes have changed,
which we will now review, but he fails to demonstrate
how the court abused its discretion in determining that
they did not alter the finding that it is in the child’s best
interests to live in Texas with the plaintiff.
We first turn to the defendant’s assertion that a mate-
rial change in circumstances existed because of the
plaintiff’s financial issues. We conclude the court did
not abuse its discretion in determining that the failure
of the family business was not a material change in
circumstances. The defendant failed to demonstrate
how the failure of the family business altered the disso-
lution court’s finding that it was in the child’s best
interests to have his primary residence in Texas with the
plaintiff. Judge Adelman found that the child’s physical
needs were being met and the child was doing well in
school there.
The defendant contends that the court misunder-
stood why he entered evidence comparing his financial
situation to that of the plaintiff, arguing that it was not
to show that his greater financial position entitles him
to custody of the child, but rather to demonstrate that
the plaintiff has been financially irresponsible. He
asserts that the plaintiff’s financial issues have nega-
tively affected the child’s welfare. Regardless of the
cause of the plaintiff’s economic misfortunes, the court
determined that the child’s physical needs were being
met under the existing custody order.
We next turn to the defendant’s arguments that there
was a material change in circumstances due to the
child’s academic needs. In regard to the child’s entering
elementary school, the court did not abuse its discretion
in determining that this was not a material change in
circumstances. At the time of dissolution, Judge Gordon
contemplated that the child would grow up and attend
school in the state of his primary residence. Further-
more, Judge Adelman granted the defendant’s motion
to modify visitation, adjusting the time the defendant
has with the child to account for the child’s
attending school.
The defendant also argues that the court abused its
discretion by not finding a material change in circum-
stances because the child is struggling in school due
to the plaintiff’s inattentiveness, and therefore he is not
thriving in Texas. The argument fails because the record
supports the court’s determination that the child was
doing well in school. Even if one assumes much of the
child’s academic success was due to the defendant’s
efforts, the joint custody order contemplated that both
parents would be involved in the child’s life and contrib-
ute to his welfare. The fact that the child was doing
well in school in Texas suggests that the custody order
was working as intended in this respect. It was not an
abuse of discretion for Judge Adelman to determine
that there was no material change in circumstances
regarding the child’s academic performance.
As to the plaintiff’s parenting abilities, the court found
that, although the plaintiff had been inattentive in some
instances as a parent, ‘‘[m]any of [the defendant’s] alle-
gations speak to why he considers himself to be a better
candidate of [the child’s] physical custody, rather than
to the changes in circumstances.’’ The defendant has
pursued the same course on appeal, emphasizing that
Judge Gordon stated that, at the time of the dissolution,
‘‘[the plaintiff] is doing a little better of a job as a parent
than [the defendant] . . . .’’ The defendant insists that
there has been a material change in circumstances
because he is now the better parent, which he sums
up with an intemperate assertion in his brief that ‘‘[the
plaintiff] was a disaster relative to attending to the
minor child’s health, education, and welfare.’’ As noted,
his brief reiterates a litany of allegations about the plain-
tiff’s failings as a parent that he testified to at trial,
about which the court did not make a factual finding.
The defendant on appeal again makes clear why he
thinks he is the better parent, but does not demonstrate
how the court abused its discretion in determining that
there was no material change in circumstances. The
court certainly recognized that the plaintiff must
improve her parenting skills, but noted that the defen-
dant has his own shortcomings to address for the joint
custody arrangement to work. As previously stated, the
court found that under the existing custody order the
child’s physical needs were being met, and the child
was doing well in school. Thus, the court did not abuse
its discretion as it had a reasonable basis to conclude
that there has been no material change in circumstances
due to the plaintiff’s parenting ability. Cf. Sheiman v.
Sheiman, 72 Conn. App. 193, 195–96, 199–200, 804 A.2d
983 (2002) (affirming trial court’s finding of material
change in circumstances and modification of custody
to award plaintiff sole custody where defendant
engaged in erratic and unreasonable behavior, was loud
and abusive to family services worker and counsel,
frightened child to point that child did not want to return
to defendant’s home, and court found no expressions of
affection between defendant and child). Furthermore,
the fact that both the guardian ad litem and the psychia-
trist recommended that the child remain in Texas with
the plaintiff supports the trial court’s conclusion that
there was no material change in circumstances that
altered the dissolution court’s initial finding that it was
in the child’s best interests to have primary residence
in Texas with the plaintiff.6 See Kelly v. Kelly, supra,
54 Conn. App. 55. We repeat: not every change in cir-
cumstances is material; and not every material change
in circumstances necessarily affects the best interests
of the child. To conclude otherwise would be to encour-
age microscopic analysis of every decision made by a
custodial parent in circumstances such as these.
II
We turn to the plaintiff’s cross appeal. The plaintiff
claims that the court abused its discretion in denying
her motion for additional attorney’s fees to defend the
defendant’s motion for modification of custody on the
ground that it would be inequitable in light of the defen-
dant’s child support and visitation expenses. She argues
that the court erred because there is no statutory basis
in General Statutes §§ 46b-62 and 46b-82 for the court
to consider child support and visitation expenses as a
reason to deny a request for attorney’s fees.
The following additional facts are relevant to this
claim. Judge Shluger awarded the plaintiff $15,000 in
attorney’s fees to defend the defendant’s motion for
modification of custody. She filed a subsequent motion
stating that she had exhausted the initial award and
requested additional fees to cover further legal
expenses. Her attorney submitted an affidavit after the
hearing on April 14, 2014, stating that he was owed an
additional $22,003.87. The plaintiff submitted a financial
affidavit to the trial court showing that she has limited
financial assets and that her weekly expenses are
greater than her weekly income.
The defendant submitted his financial affidavit, in
which he indicated that he spends more than $50,000
annually to fulfill his parenting obligations in Texas,
which includes renting a second residence in Houston
and significant travel costs. The court noted that
‘‘[w]hile it is clear that the defendant earns significantly
more than the plaintiff does, he is paying the full child
support amount and bearing all the cost of his travel and
living expenses to accommodate the current parental
access schedule. The court will continue the unequal
split of the [guardian ad litem] fees,7 but will not award
further legal fees.’’ (Footnote added.) In regard to child
support, the dissolution judgment contemplated that
the defendant would pay unallocated alimony and child
support until December 31, 2012. The apparent basis
of the plaintiff’s argument is discrepancies between the
parties’ financial affidavits regarding child support. The
court did not make a finding as to the exact amount
the defendant is paying in child support, stating only
that he was paying the ‘‘full child support amount.’’
The court ultimately denied the plaintiff’s motion for
additional attorney’s fees, finding that ‘‘[d]ue to the
extraordinary expenses of the defendant to meet his
parental duties in Texas, the awarding of fees to the
plaintiff for this action would not be equitable.’’ On May
21, 2014, the plaintiff filed a motion to reargue, which
the court denied. This cross appeal followed.
The plaintiff sought additional attorney’s fees pursu-
ant to § 46b-62 (a), which provides in relevant part: ‘‘In
any proceeding seeking relief under the provisions of
this chapter . . . the court may order either spouse
or, if such proceeding concerns the custody, care, edu-
cation, visitation or support of a minor child, either
parent to pay the reasonable attorney’s fees of the other
in accordance with their respective financial abilities
and the criteria set forth in section 46b-82. . . .’’8
(Emphasis added.) ‘‘An award of counsel fees under
[§ 46b-62] calls for the exercise of judicial discretion.
. . . In exercising its discretion, the court must con-
sider the statutory criteria set out in §§ 46b-62 and 46b-
82 and the parties’ respective financial abilities. . . .
The language of § 46b-62 permits, without requiring,
a trial court to award attorney’s fees after considering
the respective financial abilities of the parties and the
criteria set forth in section 46b-82. . . . Counsel fees
are not to be awarded merely because the obligor has
demonstrated an ability to pay.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Marcus v. Cassara, 142 Conn. App. 352, 358–59, 66 A.3d
894 (2013). Our Supreme Court has ‘‘interpreted these
statutory provisions . . . to mean that an award of
attorney’s fees in a marital dissolution case is warranted
only when at least one of two circumstances is present:
(1) one party does not have ample liquid assets to pay
for attorney’s fees; or (2) the failure to award attorney’s
fees will undermine the court’s other financial orders.’’
(Citation omitted; internal quotation marks omitted.)
Berzins v. Berzins, 306 Conn. 651, 657, 51 A.3d 941(2012).
‘‘In making an award of attorney’s fees under [§ 46b-
62], [t]he court is not obligated to make express findings
on each of these statutory criteria.’’ (Internal quotation
marks omitted.) Jewett v. Jewett, 265 Conn. 669, 693,
830 A.2d 193 (2003). It is also well established that the
court has inherent equitable powers in resolving actions
stemming from a marital dispute, and the court ‘‘may
consider factors other than those enumerated in the
statutes if such factors are appropriate for a just and
equitable resolution of the marital dispute . . . .’’
Benavides v. Benavides, 11 Conn. App. 150, 156, 526
A.2d 536 (1987) (discussing court’s inherent equitable
powers regarding awarding of attorney’s fees under
§ 46b-62).
‘‘Under the abuse of discretion standard of review,
[w]e will make every reasonable presumption in favor
of upholding the trial court’s ruling, and only upset it
for a manifest abuse of discretion. . . . [Thus, our]
review of such rulings is limited to the questions of
whether the trial court correctly applied the law and
reasonably could have reached the conclusion that it
did.’’ (Internal quotation marks omitted.) Marcus v.
Cassara, supra, 142 Conn. App. 359.
On the basis of our review of the record, we conclude
that the trial court did not abuse its discretion in denying
the plaintiff’s motion for additional attorney’s fees. The
plaintiff argues that §§ 46b-62 and 46b-82 do not specifi-
cally provide that the court may consider child support
and visitation expenses as a reason to deny a request
for attorney’s fees. The plaintiff does not address why
the court could not consider such expenses in consider-
ing the ‘‘financial abilities’’ of the parties as required
by § 46b-62. Regardless, the court has inherent equitable
powers in resolving actions stemming from marital dis-
putes that allow it to consider factors beyond those
enumerated in the statutes. Benavides v. Benavides,
supra, 11 Conn. App. 156. Here, the court considered the
parties’ overall financial situations, and the substantial
cost that the defendant has had to incur and will con-
tinue to incur in fulfilling his parental duties under the
custody order. It determined that because of such costs,
it would be inequitable to award the plaintiff additional
attorney’s fees. The record provides support for this
determination, thus, the court did not abuse its dis-
cretion.
The plaintiff further contends that the court abused
its discretion because it found that the defendant is
paying more in child support than he actually is paying.
The court did not make a finding as to the exact amount
the defendant is paying, stating only that he is paying
the ‘‘full child support amount.’’ The plaintiff has failed
to demonstrate how this alleged discrepancy caused
the court to abuse its discretion in failing to award
additional attorney’s fees. The court denied the plain-
tiff’s motion because it found that ‘‘[d]ue to the extraor-
dinary expenses of the defendant to meet his parental
duties . . . the awarding of fees to the plaintiff for this
action would not be equitable.’’ The court could still
reasonably conclude that it was inequitable to award
the plaintiff additional attorney’s fees on the basis of
the defendant’s significant visitation costs and the fact
that he pays child support in some amount.
As a corollary, the plaintiff also claims that she has
no liquid assets and the failure to award her additional
fees will undermine the court’s existing financial orders
regarding child support. She argues that she will now
have to use her child support payments to pay her
counsel fees. The court did not make any such finding.
Furthermore, the court was not obligated to award the
plaintiff additional attorney’s fees merely because she
exhausted Judge Shluger’s initial award of $15,000 to
defend the defendant’s motion to modify custody. Mar-
cus v. Cassara, supra, 142 Conn. App. 358–59 (stating
that language of § 46b-62 permits, but does not require,
awarding of attorney’s fees).
The plaintiff’s final argument is that there was no
change in the parties’ financial circumstances since the
time of the dissolution that would warrant a change in
child support or the allocation of visitation expenses
between the parties. She cites case law in her brief
holding that the party seeking modification of financial
orders bears the burden of proving a material change in
circumstances. This argument misses the point because
the court did not modify the allocation of child support
and the visitation costs, but merely considered such
costs as a factor in ruling on the plaintiff’s motion for
additional attorney’s fees.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The guardian ad litem adopted the plaintiff’s appellate brief as the state-
ment of the issues and requested that we affirm the judgment of the trial
court denying the motion for modification of custody.
2
The defendant also filed a motion to modify the visitation schedule.
Although the court denied the motion to modify custody, it granted the
defendant’s motion to modify the visitation schedule. ‘‘In 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. . . . Instead, [i]n modifying
an order concerning visitation, the trial court shall be guided by the best
interests of the child . . . .’’ (Citations omitted; footnote omitted; internal
quotation marks omitted.) Balaska v. Balaska, 130 Conn. App. 510, 515–16,
25 A.3d 680 (2011).
3
The defendant reiterates in his brief to this court evidence that he pre-
sented at trial to demonstrate he is the better parent. He presents examples
of the plaintiff’s alleged inattentiveness to the child’s needs, as well as
examples of where she allegedly was not forthright with the defendant
regarding the child. All of this evidence was before the trial court, which
made no factual findings on many of the defendant’s allegations.
We note that ‘‘the trial court is in a clearly advantageous position to
assess the personal factors significant to a domestic relations case. . . . It
is axiomatic that we defer to the trial court’s assessment of the credibility
of witnesses and the weight to afford their testimony.’’ (Citation omitted;
internal quotation marks omitted.) Malave v. Ortiz, 114 Conn. App. 414,
425, 970 A.2d 743 (2009). An appeal is not a retrial and it is well established
that this court does not make findings of fact. On appeal, the defendant
does not claim that the court’s findings are clearly erroneous.
4
The court stated that ‘‘[t]he most glaring example and the one that must
have caused the minor child great embarrassment was when the plaintiff
sent him to school for the class picture in a white shirt while every other
child in the class was dressed in a red shirt.’’
5
General Statutes § 46b-56 (c) provides: ‘‘In making or modifying any
order as provided in subsections (a) and (b) of this section, the court shall
consider the best interests of the child, and in doing so may consider,
but shall not be limited to, one or more of the following factors: (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 environment, 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 satis-
factorily completed participation in a parenting education program estab-
lished pursuant to section 46b-69b. The court is not required to assign any
weight to any of the factors that it considers, but shall articulate the basis
for its decision.’’
6
The court stated in a footnote in its memorandum of decision: ‘‘It should
be noted that even if the threshold issue of significant change had been met
by the defendant, it would not have resulted in a change of custodial orders.
Both the written recommendation of Roeder and the testimony of the [guard-
ian ad litem] recommended that primary residence not be changed. Both
found that the overall picture of this child indicated that the current arrange-
ment was best at this time. The court certainly agrees, but since the threshold
issue was not met, the court declines to enter into further analysis of the
custodial factors as detailed in the statutes and case law.’’ The record
supports Judge Adelman’s finding in this regard.
7
Judge Shluger had ordered that the plaintiff pay 25 percent of the guardian
ad litem fees and that the defendant pay 75 percent of the guardian ad
litem fees.
8
General Statutes § 42b-82 is titled ‘‘Alimony,’’ and provides in relevant
part: ‘‘In determining whether alimony shall be awarded, and the duration
and amount of the award, the court shall consider the evidence presented
by each party and shall consider the length of the marriage, the causes for
the annulment, dissolution of the marriage or legal separation, the age,
health, station, occupation, amount and sources of income, earning capacity,
vocational skills, education, employability, estate and needs of each of the
parties and the award, if any, which the court may make pursuant to section
46b-81, and, in the case of a parent to whom the custody of minor children
has been awarded, the desirability and feasibility of such parent’s secur-
ing employment.’’