Swain v. Swain

213 Conn.App. 411

277 A.3d 895

Earl W. SWAIN

v.Tina N. SWAIN

AC 44591

Appellate Court of Connecticut.

Argued February 1, 2022

Officially released June 21, 2022

Gregory A. Allen, with whom were Lauren E. Higgs, and, on the brief, Alissa M. Korwek, for the appellant (plaintiff).

Elgo, Alexander and Harper Js.

ELGO, J.

The plaintiff, Earl W. Swain, appeals from the judgment of the trial court granting in part a postjudgment motion to modify filed by the self-represented defendant, Tina N. Swain.¹ On appeal, the plaintiff claims that the court improperly modified the existing orders as to visitation, the parental access plan, and child support because the defendant's motion to modify sought only to modify custody.² We disagree and, accordingly, affirm the judgment of the court.

The following facts and procedural history are relevant to our resolution of this appeal.³ On December 15, 2015, the court, after a contested trial, rendered judgment dissolving the parties’ marriage by way of memorandum of decision. The court originally awarded the parties’ joint legal custody of their four minor children, who were born in 2007, 2010, 2012, and 2013, with final decision-making authority and primary residence awarded to the plaintiff. The court ordered that the defendant, who was then residing in Maine, shall have visitation with the children on certain prescribed dates and shall pay the plaintiff $164 per week in child support. The court further ordered that the parties shall have telephone access with the children when not physically with them.

Following the dissolution of their marriage, the parties engaged in seven years of contentious postdissolution proceedings.

On February 22, 2018, the court, after another contested hearing, awarded the plaintiff sole

legal custody and primary residence of the parties’ four children. As for visitation and access, the court ordered that the defendant, who was still residing in Maine, shall have visitation with the children at specific times on certain holidays and periods during the summer. The court ordered that the defendant shall be responsible for all transportation related to her access, and that the exchanges shall occur at the plaintiff's residence in Connecticut. As for child support, the court ordered that the defendant shall pay the plaintiff $70 per week, suspended during the defendant's access periods.

On November 25, 2019, the court issued a postjudgment order, pursuant to the parties’ agreement, modifying the visitation and access schedule. Particularly, the court ordered that the defendant, who had moved to Virginia, shall have visitation with the children in Connecticut for the weekends of Columbus Day, Martin Luther King, Jr., Day, Presidents Day, Easter, and Thanksgiving; Christmas between December 26 and January 1; and the weeklong April vacation. The new parental access plan also afforded the defendant visitation with the children in Virginia for summer vacation during the month of July.

On December 14, 2020, the defendant filed a motion to modify the existing child support, custody, visitation, and parental access orders.⁴ In that motion, the defendant asserted that there was a substantial change in circumstances because the plaintiff and his mother "are incapacitated [with] COVID-19, put the children's lives in danger, [and] violated [Connecticut] rules." As for child support, the defendant sought that the court "suspend [the] current support order." As for custody, the defendant requested that the court award "sole custody

to [the] defendant mother." As for visitation and the parental access schedule, the defendant requested that the court order "no visitation for [the] plaintiff father at this time due to contagious COVID-19 infection until proof of negative test results" and that "after negative test results [the] plaintiff to have same visitation schedule that the defendant had."

On January 15, 2021, the court held a remote hearing as to five pending motions, including the defendant's motion to modify.⁵ The plaintiff presented the testimony of Old Saybrook Police Officer Charles Kostek, the defendant, and Attorney Justine Rakich-Kelly, who was the appointed guardian ad litem for the children, and he also testified. The defendant then presented her case by way of narrative testimony, with certain questions from the court as to the issues raised by each of the five motions at issue. The defendant relevantly testified regarding her difficulty complying with the existing orders as to child support and the parental access schedule and her proposal for a new visitation and access schedule. After the defendant rested her case, the plaintiff declined the court's invitation to present any rebuttal witnesses.

At the conclusion of that hearing, the court issued an oral ruling granting in part the defendant's December 14, 2020 motion to modify the existing child support, custody, and visitation orders. The court granted the motion to modify as to access and visitation, holding that it "find[s] the testimony of the defendant credible.

The parties have four children. The court is going to grant the motion to modify with regard to [the defendant's] access. I believe it's in the best interest of these children, and I want to dial back the temperature on all this." The court issued a revised parental access schedule providing that the defendant shall have visitation with the children "for [the time between] the first five days after the children end school and the five days before they start school," Christmas vacation, Thanksgiving, and spring vacation. The court ordered that transportation for visitation was to be completed on the basis of an agreement of the parties, but, "[i]f there's no agreement on that, then one person drives down and one person drives back." The court also ordered telephone access to be "Monday evening between 6:30 and 8:30, one call [on] Skype a week." The court then denied the defendant's motion to modify as to custody, holding that there was no material change in circumstances to justify her request for sole legal custody. The court's oral decision did not specifically address the defendant's motion to modify as to child support. After the court issued its oral ruling, the plaintiff's counsel confirmed that the court did not "miss a motion," and asked for several clarifications, none of which contested the scope of the court's ruling compared to the relief sought by the defendant's motion to modify.

On the same day as the January 15, 2021 hearing, the court issued a written order further granting the defendant's motion to modify as to visitation and child support.⁶ The court ordered that "the defendant do all the transportation for visitation and thereby reducing

her weekly child support obligation by $50 per week. [The] [d]efendant's child support payments to the plaintiff are suspended for any weeks that she has visitation with the children for 5 days or more."⁷ The plaintiff filed a motion to reargue the court's decision, which the court denied. This appeal followed.

On appeal, the plaintiff claims that the court improperly modified the existing orders as to visitation, the parental access plan, and child support because the defendant's motion to modify sought only to modify custody.⁸ In support, the plaintiff argues that, "by the court taking the action it did, the plaintiff was deprived of an opportunity to argue and present evidence as to the details of why the [then existing orders] should not be changed...."⁹ We disagree.

We begin with the standard of review and relevant legal principles. Because the plaintiff's claim requires us to interpret both the court's orders as well as the defendant's motion to modify, our review is plenary. See Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C. , 311 Conn. 282, 290, 87 A.3d 534 (2014) (plenary review applies to interpretation of pleadings); Sosin v. Sosin, 300 Conn. 205, 217, 14 A.3d 307 (2011) (plenary review applies to interpretation of trial court's judgment).

In general, a court's decision is restricted to those issues raised by the parties in their pleadings and in argument. "[P]leadings have their place in our system

of jurisprudence. While they are not held to the strict and artificial standard that once prevailed, we still cling to the belief, even in these iconoclastic days, that no orderly administration of justice is possible without them.... It is fundamental in our law that the right of a [party] to recover is limited to the allegations in his [pleading].... Facts found but not averred cannot be made the basis for a recovery.... Thus, it is clear that [t]he court is not permitted to decide issues outside of those raised in the pleadings.... It is equally clear, however, that the court must decide those issues raised in the pleadings.... This rationale extends equally to motions." (Citation omitted; internal quotation marks omitted.) Wheeler v. Beachcroft, LLC , 210 Conn. App. 725, 753, 271 A.3d 141 (2022) ; see also Doe v. Cochran , 332 Conn. 325, 333, 210 A.3d 469 (2019) (stating that pleadings should be read broadly and realistically, not narrowly and technically); Morneau v. State , 150 Conn. App. 237, 239 n.2, 90 A.3d 1003 (outlining established Connecticut policy of leniency toward self-represented parties), cert. denied, 312 Conn. 926, 95 A.3d 522 (2014).

These pleading requirements in postdissolution matters "historically have been much less circumscribed than in other types of actions." Petrov v. Gueorguieva , 167 Conn. App. 505, 514, 146 A.3d 26 (2016). "[A]lthough a court cannot determine a fact or issue beyond the reasonable cognizance of the parties ... our rules of pleading are generally less restrictive as to what the court can decide in these matters" because most postdissolution proceedings "are ultimately governed by the child's best interests." (Citation omitted.) Id., at 519, 146 A.3d 26. Therefore, "[i]n the context of a postjudgment appeal, if a review...