Coleman v. Bembridge

207 Conn.App. 28

263 A.3d 403

Carolyn COLEMAN

v.Martin BEMBRIDGE

AC 42669

Appellate Court of Connecticut.

Argued May 20, 2021

Officially released August 31, 2021

Sarah E. Murray, Westport, for the appellant (plaintiff).

Campbell D. Barrett, with whom was Johanna S. Katz, Hartford, for the appellee (defendant).

Alvord, Moll and Cradle, Js.

MOLL, J.

In this dissolution matter, the plaintiff, Carolyn Coleman, appeals from the judgment of dissolution rendered by the trial court insofar as the court entered orders regarding the physical custody of the parties’ minor child. On appeal, the plaintiff claims that (1) the court improperly modified the child's physical custody prospectively, (2) to the extent that it awarded the parties joint physical custody, the court (a) acted beyond its statutory authority and (b) violated the plaintiff's due process rights when neither she nor the defendant, Martin Bembridge, requested joint physical custody, and (3) the court abused its discretion in entering physical custody orders that were (a) predicated on inconsistent factual findings, (b) incompatible with the court's legal custody orders, and (c) not in the child's best interests. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts, as found by the trial court, and procedural history are relevant to our resolution of this appeal. "The parties met through the social media website Twitter in April, 2015. After speaking on the phone, the couple eventually physically met in May, 2015. The plaintiff was living in Meriden ... and the defendant lived in Saskatchewan, Canada. Shortly thereafter, in July, 2015, the defendant proposed marriage and the plaintiff accepted.

"The parties were married in Portland ... on October 8, 2016. Following the date of their marriage, the two lived apart with the plaintiff continuing to live in Connecticut and the defendant continuing to live in Saskatchewan. They physically met on a few occasions before the plaintiff relocated on July 28, 2017, to Saskatchewan to live with the defendant. The parties’ child was conceived approximately the first or second day after [the plaintiff] arrived in Canada. By the end of August, 2017, the plaintiff discovered that she was pregnant. In the middle of September, [2017], the plaintiff informed the defendant that she did not find him attractive, did not love him, and wanted to end the marriage. By October 18, 2017, the plaintiff moved back to Connecticut and has resided in Meriden ... in her father's house since that time. The parties’ son ... was born [in April, 2018]."

In February, 2018, the plaintiff commenced the present dissolution action. On May 8, 2018, following the birth of the parties’ son, the plaintiff filed an amended complaint in which she requested sole legal custody and that the child's primary residence remain with her. Additionally, in the amended complaint, the plaintiff requested as relief "anything else the court deems fair."

The matter was tried to the trial court, K. Murphy , J. , over the course of three days in January, 2019. Prior to trial, each party submitted proposed orders. In her proposed orders, the plaintiff requested in relevant part (1) sole custody and (2) "[a]ll such other and further relief both in law and in equity to which the court deems appropriate." In his proposed orders, the defendant requested in relevant part joint legal custody and that the child's primary residence be with him, with the plaintiff enjoying "reasonable and liberal parenting time ...."

On February 15, 2019, the court issued a memorandum of decision dissolving the parties’ marriage. As to custody, the court stated that "[w]eighing all of the evidence and balancing the interests of the parties has been difficult in this situation. The court's primary objective is the best interest of the parties’ son ...." The court continued in relevant part: "The court is awarding joint custody to both parties. Primary residence of the child initially shall be with the [plaintiff]. Throughout the child's life the parties are directed to discuss and work together in order to obtain agreement in regard to all major decisions, which includes decisions relating to health care and education. If after discussion and providing full information regarding the decision at issue the parties have not reached agreement, [the plaintiff] will have final decision-making authority. All other decisions of a ‘nonmajor’ nature shall be made by the parent with whom the child is residing at the time. If that decision involves an emergency health decision involving the child, the deciding parent should inform the other parent immediately but in the very most within twenty-four hours of being aware of the emergency."

With respect to the child's physical residence, the court ordered as follows. Prior to the child's second birthday, his primary physical residence will be with the plaintiff, subject to the defendant having one week of unsupervised visitation each month in Connecticut. On the child's second birthday, the child's physical residence will begin to alternate between the parties. This arrangement will continue either until the start of the academic school year following the child's fifth birthday or, if he is not ready to enroll in a full-time academic program at that time, until the start of the academic school year following the child's sixth birthday. The parties are to agree in writing on a schedule that "will approximately allow the equal custody of the child by both parties for the three to four plus years" leading up to the child's enrollment in school, but, if the parties cannot reach an agreement, then the parties are to abide by a default schedule created by the court pursuant to which, beginning on May 1, 2020, the child's physical residence alternates between the parties approximately every two months. On the child's enrollment in school following either his fifth or sixth birthday, his primary physical residence will revert back to the plaintiff, with the defendant having one week of unsupervised visitation each month; during such visitation the defendant will be responsible for ensuring that the child attends school. Additionally, "[f]ollowing the commencement of full-time school when the child has a week or more off during the school year, [the defendant] will be entitled to one week of uninterrupted parenting time during the school year and one week of uninterrupted parenting time during the Christmas break with the child at whatever location is convenient for [the defendant] and the child. During the summer break, the [defendant] is entitled to approximately two-thirds of that time when the child will physically reside with the [defendant]. [The plaintiff] will be entitled to approximately one-third of that summer break time." The court further ordered that each party will be allowed two thirty minute virtual visits per week when physically away from the child.¹ This appeal followed.² Additional facts and procedural history will be set forth as necessary.

Before turning to the plaintiff's claims, "we set forth our standard of review. [T]he standard of review in family matters is well settled. 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 presumption in favor of the correctness of its action. ... Appellate review of a trial court's findings of fact is governed by the clearly erroneous standard of review. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... Our deferential standard of review, however, does not extend to the court's interpretation of and application of the law to the facts. It is axiomatic that a matter of law is entitled to plenary review on appeal." (Citation omitted; footnote omitted; internal quotation marks omitted.) Princess Q. H. v. Robert H. , 150 Conn. App. 105, 111–12, 89 A.3d 896 (2014).

I

The plaintiff first claims that the trial court's physical custody orders³ are improper because they modify the physical custody of the child prospectively. Specifically, the plaintiff contends that the physical custody orders "provide for automatic wholesale changes based solely upon the child's age" without real time determinations of the child's best interests. The defendant argues that the physical custody orders do not result in prospective modifications of custody but, rather, create a permissible "tiered custodial plan" based on the present best interests of the child. We agree with the defendant.

As we previously set forth in this opinion, "[o]ur deferential standard of review [in domestic relations cases] ... does not extend to the court's interpretation of and application of the law to the facts. It is axiomatic that a matter of law is entitled to plenary review on appeal. ... Moreover, [t]he construction of [an order or] judgment is a question of law for the court ... [and] our review ... is plenary. As a general rule, [orders and] judgments are to be construed in the same fashion as other written instruments. ... The determinative factor is the intention of the court as gathered from all parts of the [order or] judgment." (Citation omitted; internal quotation marks omitted.) Marshall v. Marshall , 200 Conn. App. 688, 717, 241 A.3d 189 (2020).

Our precedent instructs that a trial court may not prospectively modify a custody order because, when contemplating whether to modify custody, a court must consider the real time best interests of the child. In Guss v. Guss , 1 Conn. App. 356, 472...