Nietupski v. Del Castillo

196 Conn.App. 31

228 A.3d 1053

Karol NIETUPSKI

v.Nerida DEL CASTILLO

AC 42003

Appellate Court of Connecticut.

Argued November 13, 2019

Officially released February 25, 2020

Karol Nietupski, self-represented, the appellant (plaintiff).

Christina Gill, with whom were Giovanna Shay, and, on the brief, Ramona Mercado-Espinoza and Enelsa Diaz, for the appellee (defendant).

Alvord, Elgo and Devlin, Js.

ELGO, J.

The self-represented plaintiff, Karol Nietupski,¹ appeals from the judgment of the trial court dissolving his marriage to the defendant, Nerida Del Castillo. On appeal, the plaintiff claims that the court (1) violated the free exercise clause of the first amendment by rendering a judgment of marital dissolution, and (2) improperly entered orders regarding the travel and education of a minor child.² We affirm the judgment of the trial court.

The relevant facts are largely undisputed. The plaintiff is a native of Poland and Polish is his first language. The defendant is a native of Peru and Spanish is her first language. In 2011, the parties were married in East Hartford. Their sole child, Matthew, was born in 2013. During the marriage, the parties resided in Glastonbury, where Matthew attended prekindergarten.

In early 2018, the plaintiff commenced an action for legal separation. In response, the defendant filed an answer and a cross complaint, in which she sought a dissolution of the marriage.

Months later, the defendant filed motions for orders from the court pertaining to Matthew's education and international travel, to which the plaintiff objected and filed responses that proposed alternate orders. The court, Prestley, J. , held a hearing on the motions, at which both parties testified. The court also heard testimony from Juan Melian, principal at Charter Oak International Academy in West Hartford (Charter Oak), and Michael Litke, principal at Naubuc Elementary School in Glastonbury. In addition, the guardian ad litem for the minor child testified that (1) she had "no objection" to international travel, and (2) she believed that "either school [in West Hartford or Glastonbury] can address [Matthew's] needs adequately."

On August 9, 2018, the court issued two pendente lite orders relevant to this appeal. With respect to international travel, the court ordered that "each party shall be permitted to travel with [Matthew] to their homes of origin, in Peru and Poland, or on vacation to another country, for up to two weeks vacation time during the year." The court further ordered that Matthew shall attend Charter Oak in West Hartford.³

From that judgment, the plaintiff timely appealed to this court.

The parties thereafter entered into a parenting plan agreement, which the court adopted as an order of the court. On November 28, 2018, the plaintiff filed what he termed a "request to change child school district." In that pleading, the plaintiff sought an order requiring Matthew to attend public school in Glastonbury, which he alleged was "much higher ranked and safer" than Charter Oak in West Hartford. The defendant filed an objection to that request.

In December, 2018, the court, Nastri, J. , held a two day trial on the plaintiff's action for legal separation and the defendant's cross complaint seeking a dissolution of marriage. During his direct examination of the defendant, the self-represented plaintiff asked if she was "fine with legally separating" instead of having the marriage dissolved. The defendant answered in the negative, stating: "No, I need a divorce because [the plaintiff] has abused me emotionally and physically, not just me, but also my son. I cannot be with somebody who's harmed me." The court, as sole arbiter of credibility, was free to accept that testimony. See Kiniry v. Kiniry , 299 Conn. 308, 336–37, 9 A.3d 708 (2010).

On January 16, 2019, the court rendered judgment dissolving the parties' marriage pursuant to General Statutes § 46b-40(c)(1), finding that it had broken down irretrievably.⁴ The court thus declared "the parties single and unmarried." As part of its judgment of dissolution, the court made numerous factual findings and fashioned various orders. The court found, with respect to educational orders, that the testimony adduced at the dissolution trial "was consistent with Judge Prestley's findings and this court sees no reason to deviate from her conclusions." For that reason, the court denied the plaintiff's November 28, 2018 motion to change Matthew's school district, and instead ordered that "[t]he defendant shall determine which school Matthew attends." The court further ordered that "[e]ach party shall have two weeks exclusive vacation time with Matthew" per year, which "may include travel outside the United States."

On January 23, 2019, the plaintiff filed an amended appeal with this court, which indicated that he was appealing from the January 16, 2019 judgment of dissolution.⁵ He filed a motion for reargument and reconsideration in the trial court that same day, which the court subsequently denied.⁶

I

We first consider the plaintiff's claim that the court violated the free exercise clause of the first amendment to the United States constitution by rendering a judgment of marital dissolution pursuant to § 46b-40(c)(1).⁷ That contention is without merit.

In his principal appellate brief, the plaintiff alleges that "[c]ivil laws granting divorce ... are morally wrong because the state therein usurps an authority to which it has no right whatsoever. It is obvious that the state unlawfully invades an area of religious liberty in which it has no competence when it claims the power to dissolve a marriage lawfully contracted by two baptized persons such contract is a sacrament. Marriage belongs to God." By dissolving the parties' marriage, the plaintiff argues, the court violated his right to free exercise of religion.

The plaintiff has provided no legal authority that substantiates his bald assertion.⁸ In his principal appellate brief, the plaintiff alleges that he sought a judgment of legal separation because "divorce is [a] great offense" to his religious beliefs. No such allegation was contained in his operative complaint or advanced at trial. Moreover, the record plainly indicates that, following the commencement of the plaintiff's action, the defendant filed a cross complaint, in which she sought a judgment of dissolution pursuant to § 46b-40(c)(1).

This court previously has rejected a first amendment challenge in such circumstances. As we explained: "The United States Supreme Court has consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).... [Section] 46b-40(c)(1) is a valid and neutral law of general applicability. The statute does not in any manner infringe on the defendant's right to exercise his religious beliefs merely because it permits the plaintiff to obtain a divorce from him against his wishes." (Citation omitted; internal quotation marks omitted.)

Grimm v. Grimm , 82 Conn. App. 41, 45, 844 A.2d 855 (2004), rev'd in part on other grounds, 276 Conn. 377, 886 A.2d 391 (2005), cert. denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815 (2006) ; see also Joy v. Joy, 178 Conn. 254, 256, 423 A.2d 895 (1979) (upholding constitutionality of § 46b-40(c)(1) generally). This court thus concluded that the rendering of a judgment of dissolution pursuant to § 46b-40(c)(1) "does not violate [a party's] right to exercise his religious beliefs." Grimm v. Grimm , supra, at 46, 844 A.2d 855. In light of that precedent, the plaintiff's claim fails.

II

The plaintiff also challenges certain orders entered by the court pursuant to General Statutes § 46b-56 as part of its judgment of dissolution. Specifically, he claims that the court abused its discretion in permitting Matthew (1) to remain enrolled at Charter Oak and (2) to travel internationally. We disagree.

We begin by noting that "[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.... It is within the province of the trial court to find facts and draw proper inferences from the evidence 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.... [T]o conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did.... 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." (Internal quotation marks omitted.) Powell-Ferri v. Ferri , 326 Conn. 457, 464, 165 A.3d 1124 (2017).

A

As the court below observed, whether Matthew would attend school in West Hartford or Glastonbury was a major dispute between the parties. In its memorandum of decision, the court found that, although Matthew was "the least prepared student in his kindergarten class" when he enrolled at Charter Oak, he "has made great strides in his educational development with the individual attention he is receiving and now is almost functioning at grade level." The court expressly credited the testimony of the guardian ad litem, who "recommended that Matthew continue [to attend Charter Oak], primarily because it would not be in Matthew's best interests to uproot him from his current...