J. Y. v. M. R.

215 Conn.App. 648

283 A.3d 520

J. Y.

v.M. R.^*

AC 44312

Appellate Court of Connecticut.

Argued March 7, 2022

Officially released October 11, 2022

Samuel V. Schoonmaker IV, for the appellant (defendant).

James J. Healy, Hartford, for the appellee (plaintiff).

Elgo, Moll and Suarez, Js.

MOLL, J.

In this custody dispute, the defendant, M. R., appeals from the decisions of the trial court adjudicating several postjudgment motions for modification of custody and visitation orders. On appeal, the defendant claims that the court improperly (1) issued interim orders pending its issuance of final orders vis-à-vis two motions for modification filed in 2018 and 2019, respectively, (2) issued final orders disposing of the two aforesaid motions for modification, (3) denied two motions for modification that she filed in 2021, following the issuance of the final orders, and (4) denied a motion for modification that she filed in 2020, in between the issuance of the interim orders and the final orders.¹ We dismiss, as moot, the portions of the appeal challenging the propriety of the interim orders and the denial of the defendant's motion for modification filed in 2020, and we affirm the remainder of the trial court's decisions.

The following facts and procedural history are relevant to our resolution of this appeal. The plaintiff, J. Y., and the defendant, who never married, have a minor child who was born in April, 2016. In January, 2017, the plaintiff filed a custody application, requesting joint legal custody of the child and that the child's primary residence be with him. On September 29, 2017, the parties executed a custody and parenting agreement. The agreement provided, inter alia, that the parties would share joint legal custody of the child, with the child's primary residence being with the defendant, and set forth a parenting schedule. Pursuant to the parenting schedule, the child would have seven overnight visits with the plaintiff over the course of a recurrent four week schedule. The agreement further provided that, "[u]nless or until the [defendant] relocates to another school district, the [t]own of Cheshire shall be considered the child's primary town of residence for school purposes." The same day, the trial court, Klatt, J. , approved the agreement and incorporated its terms into the court's judgment rendered that day.

On October 17, 2018, the plaintiff filed a postjudgment motion to modify the September 29, 2017 judgment, requesting, inter alia, an increase in the number of the child's overnight visits with him from seven to fourteen and that his residence be designated as the child's primary residence for school purposes. On January 16, 2019, the parties executed a stipulation agreeing, inter alia, to a revised parenting schedule, which increased the number of the child's overnight visits with the plaintiff from seven to eight. On January 23, 2019, the court, Tindill, J. , approved the stipulation. On September 18, 2019, the parties executed an agreement further modifying the parenting schedule, increasing the number of the child's overnight visits with the plaintiff from eight to ten. The court, Klau, J. , approved the agreement on the same day. On November 25, 2019, the defendant filed a postjudgment motion for modification, seeking, inter alia, to impose certain limitations and restrictions with respect to the plaintiff's parenting time.

In December, 2019, the court held three evidentiary hearings on the parties’ respective October 17, 2018 and November 25, 2019 motions for modification (initial modification motions). On January 7, 2020, the defendant filed a motion to continue the evidentiary hearings for personal medical reasons. On January 9, 2020, the court ordered that a telephonic conference would be held on January 13, 2020, to address the motion for continuance. The court further ordered the parties’ trial counsel to "be prepared to discuss whether a continuance should be contingent upon the court entering a temporary order adopting [a] proposed parenting schedule [submitted by the plaintiff]." The plaintiff's proposed parenting schedule increased the number of the child's overnight visits with him from ten to fourteen.

On January 13, 2020, during the telephonic conference, the court granted the defendant's motion for continuance and reserved its decision as to whether it would issue an interim order. The same day, the defendant filed a memorandum in opposition to the court issuing an interim order. On January 29, 2020, the plaintiff filed a motion for order requesting that the court adopt his proposed parenting schedule on a temporary basis. On February 6, 2020, the court held one additional evidentiary hearing on the initial modification motions,² and the parties’ trial counsel presented closing arguments on February 13, 2020. Both parties submitted proposed orders. The plaintiff requested, inter alia, sole legal and physical custody, with the child attending school in the town in which he resided, which, at all relevant times, was Southington. The defendant sought, inter alia, joint legal custody, with the child's primary residence being with her and the child attending kindergarten in Cheshire, where the defendant lived.

On February 26, 2020, citing Yontef v. Yontef , 185 Conn. 275, 440 A.2d 899 (1981), the court issued interim orders (interim orders) pending the issuance of final orders on the initial modification motions.³ The interim orders provided that (1) the parties continued to share joint legal custody of the child, (2) effective immediately, the parties were to share physical custody of the child in accordance with the plaintiff's proposed parenting schedule, (3) the parties were required to comply with Practice Book § 25-26 (g) in filing any future motions for modification, and (4) all prior custody and visitation orders "not inconsistent" with the temporary orders remained in full force and effect.⁴

On May 8, 2020, the defendant filed an application for an emergency ex parte order of custody, seeking temporary custody of the child with no visitation allowed for the plaintiff. The defendant averred that, during the plaintiff's parenting time, the child was being left with third parties and the plaintiff was not following the then current guidelines set forth by the Centers for Disease Control and Prevention with regard to the nascent COVID-19 pandemic. Concurrently with the application for ex parte relief, the defendant filed a postjudgment motion for modification, requesting that the court temporarily deny the plaintiff visitation (May 8, 2020 modification motion).⁵ The same day, the court, Price-Boreland, J. , declined to award ex parte relief but ordered that a hearing would be held on June 5, 2020, as to the application and the May 8, 2020 modification motion. Thereafter, the June 5, 2020 hearing was postponed and never rescheduled. On September 1, 2020, without conducting a hearing, the court, Klau, J. , denied the May 8, 2020 modification motion.

On September 1, 2020, the court issued a memorandum of decision that resolved the initial modification motions.⁶ The court stated that, in addition to issuing related orders, it was incorporating the interim orders into its final orders disposing of the initial modification motions (final orders). The court ordered in relevant part that (1) the parties shared joint legal and physical custody of the child, with the plaintiff's residence serving as the child's primary residence for school purposes, (2) the plaintiff's proposed parenting schedule was adopted and approved, (3) any party seeking to modify the new custody and visitation orders within five years was required to file a request for leave pursuant to Practice Book § 25-26 (g), and (4) the new custody and visitation orders superseded "all prior inconsistent orders," whereas "[p]rior orders not inconsistent" with the new orders remained in full force and effect. On September 18, 2020, the defendant filed a motion to reargue, which the court denied on the same day.⁷ On October 6, 2020, the defendant filed this appeal.⁸

On March 30, 2021, after being granted leave by the court, Goodrow, J. , in accordance with Practice Book § 25-26 (g) and the final orders, the defendant filed two postjudgment motions for modification, seeking to modify the final orders as to (1) the parties’ parenting schedule and (2) the child's primary residence for school purposes (March 30, 2021 modification motions).⁹ On April 22, 2021, the plaintiff filed objections. On August 11, 2021, following an evidentiary hearing, the court, Price-Boreland, J. , denied the March 30, 2021 modification motions. On August 30, 2021, the defendant filed a motion for reconsideration and reargument, which the court denied on September 1, 2021. The defendant subsequently amended her appeal to encompass the court's denials of the March 30, 2021 modification motions.¹⁰ Additional facts and procedural history will be set forth as necessary.

Before addressing the defendant's claims, we set forth the following relevant legal principles. " General Statutes § 46b-56 provides trial courts with the statutory authority to modify an order of custody or visitation. General Statutes (Rev. to 2019) § 46b-56 (c) directs the court, when making or modifying any order regarding the custody, care, education, visitation and support of children, to consider the best interests of the child, and in doing so [the court] may consider, but shall not be limited to, one or more of [sixteen enumerated] factors¹¹ .... The court is not required to assign any weight to any of the factors that it considers ...." (Footnote in original; internal quotation marks omitted.) Dolan v. Dolan , 211 Conn. App. 390, 398–99, 272 A.3d 768, cert. denied, 343 Conn. 924, 275 A.3d 626 (2022).

Before modifying a custody order, "a court must satisfy two requirements. First, modification of a custody award must be based upon either a material change [in] circumstances which...