Petrov v. Gueorguieva

167 Conn.App. 505

146 A.3d 26

Liudmil K. PETROV

v.Nataliya GUEORGUIEVA.

No. 37108.

Appellate Court of Connecticut.

Argued Dec. 3, 2015.

Decided Aug. 9, 2016.

Norman A. Roberts II, with whom, on the brief, were Anthony L. Cenatiempo and Tara C. Dugo, for the appellant (defendant).

Nancy Aldrich, with whom was Roy H. Ervin, Jr., for the appellee (plaintiff).

LAVINE, ALVORD and SULLIVAN, Js.

SULLIVAN, J.

The defendant, Nataliya Gueorguieva,¹ appeals from the July 29, 2014 judgment of the trial court, granting the December 12, 2012 postjudgment motion of the plaintiff, Liudmil K. Petrov, to modify the primary physical custody of the parties' minor child. On appeal, the defendant claims that the court (1) improperly modified primary physical custody of the child when there was no material change in circumstances since the time of the last modification, (2) improperly modified primary physical custody of the child by failing to base its orders on present circumstances, and (3) abused its discretion by determining that the change in primary physical custody was in the best interests of the child. We disagree and, therefore, affirm the judgment of the trial court.²

The following facts and procedural history are relevant to this appeal. The defendant and the plaintiff are the parents of the child. The defendant and the plaintiff, who were never married, lived together in Fairfield when the child was born, but separated one year after her birth. For a period of time following their separation, both parties continued to reside in Fairfield.

On September 15, 2010, the plaintiff filed his initial application, seeking joint legal custody and primary physical custody of the child. The defendant submitted an answer and cross complaint on October 7, 2010, in which she sought, inter alia, joint legal custody, primary physical custody, and a schedule of visitation for the plaintiff. On January 20, 2011, the plaintiff submitted an additional application, in which he again sought joint legal custody and primary physical custody, as well as child support.

As noted by the trial court, “[t]he two inch thick file at the Superior Court reflects numerous back and forth motions for findings of contempt and for other court orders, with pendente lite agreements as to custody and access.”³ On May 8, 2012, the court, Klatt, J., held a hearing on competing motions for modification of custody filed by the plaintiff and the defendant, ⁴ which the parties agreed would operate as a final hearing on the plaintiff's custody application. In its July 10, 2012 memorandum of decision (2012 decision), the court found that the defendant's move to New York was for a legitimate purpose, the location was reasonable in light of that purpose, and it was in the best interests of the child. Consequently, the court permitted the child to relocate to the defendant's home in New York. The court also adopted the defendant's proposed parental responsibility plan, which was appended to its memorandum of decision. This plan provided, inter alia, that the defendant would have primary physical custody of the child and that the parents were to share legal custody, during which they were to consult one another and jointly make decisions concerning the child's health, education, and religious upbringing.

On December 12, 2012, the plaintiff filed the motion at issue in this appeal, requesting that the 2012 custodial determination be modified, and a motion requesting that Connecticut maintain jurisdiction over the child's custody. He also filed motions for contempt on November 16, 2012, and December 6, 2013. Prior to the April, 2014 hearing, both parties submitted proposed orders concerning these motions.

The court, Hon. Constance L. Epstein, judge trial referee, held a multiday hearing on the plaintiff's motions on April 22, 23, and 24, 2014.⁵ On July 29, 2014, the court issued a memorandum of decision (2014 decision). Adjudicating the plaintiff's motions for contempt, the court found the defendant in contempt for her knowing and wilful violations of the court orders, but refrained from ordering sanctions due to its resolution of the plaintiff's motion to modify. With respect to the plaintiff's motion to modify, the court determined that the undisputed fact that the child was about to begin school full-time constituted a material change in circumstances. On the basis of the testimonial and documentary evidence presented over the three days, the court held that it was in the best interests of the child for the plaintiff to have primary physical custody. This appeal followed. Additional facts will be discussed as necessary to our decision.

Before we turn to the substance of the defendant's claims on appeal, we briefly discuss the applicable principles of law governing postjudgment motions to modify custody. “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 relations 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.... A mere difference of opinion or judgment cannot 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....

“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, modification 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.⁶ ... Second, the court shall consider the best interests of the child and in doing so may consider several factors.⁷ ... 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.... These requirements are based on the interest in finality of judgments ... and the family's need for stability.... The burden of proving a change to be in the best interest of the child rests on the party seeking the change.” (Citations omitted; emphasis omitted; footnotes altered; internal quotation marks omitted.) Clougherty v. Clougherty, 162 Conn.App. 857, 867–69, 133 A.3d 886, cert. denied, 320 Conn. 932, 134 A.3d 621 (2016).

I

The defendant asserts that the court improperly modified primary physical custody of the child when no material change in circumstances had occurred since the time of the last modification. The defendant argues that, in making the determination that the child's imminent enrollment in school full-time constituted a material change that justified a modification of the existing custody order, the court erred because: (1) it impermissibly based its decision on a change of circumstances not alleged in the plaintiff's motion to modify custody; (2) it improperly relied on a prospective change of circumstances; and (3) the evidence shows that, under the facts of this case, the child attending school full-time was not a material change in circumstances.

With respect to her first argument, the defendant argues that the plaintiff's motion to modify listed only three grounds, yet the court impermissibly premised its determination on a fourth, unalleged ground. Consequently, the defendant argues, the court's judgment is void. In response, the plaintiff contends both that the court was not limited to the grounds asserted in the motion to modify and, also, that the court, in fact, substantiated the grounds he had raised in his motion.⁸

Our rules of practice state what a party must include in any motion to modify custody. Motions to modify custody are governed by Practice Book § 25–26. Section 25–26(e) provides: “Each motion for modification shall state the specific factual and legal basis for the claimed modification and shall include the outstanding order and date thereof to which the motion for modification is addressed.” We have never had the opportunity to interpret this particular provision in the context of motions to modify custody. Reviewing this requirement in the context of motions to modify support orders, we have held that a court's reliance on a ground not raised in a motion to modify is an abuse of discretion in the absence of an amendment to the motion. Prial v. Prial, 67 Conn.App. 7, 12–13, 787 A.2d 50 (2001) ; see also Monette v. Monette, 102 Conn.App. 1, 10 n. 15, 924 A.2d 894 (2007).

We note that the requirements for what the court may permissibly decide or order on pleadings involving custody matters historically have been much less circumscribed than in other types of actions. For instance, addressing competing petitions to modify a custody arrangement, our Supreme Court stated in Morrill v. Morrill, 83 Conn. 479, 489, 77 A. 1 (1910), that “[t]he fact that the order made does not conform to the prayer of either the petition or cross-petition furnishes no objection to its validity. It was the court's duty to take such action as in its judgment the situation called for. In the performance of this duty it was unhampered, either in its inquiry or in its decision, by the allegations or prayers of the parents. While they appeared before the court in the outward guise of parties litigant, their position was not that...