Tannenbaum v. Tannenbaum

208 Conn.App. 16

263 A.3d 998

Leonard TANNENBAUM

v.Stacey TANNENBAUM

AC 43482

Appellate Court of Connecticut.

Argued May 18, 2021

Officially released September 28, 2021

Janet A. Battey, with whom, on the brief, was Olivia M. Eucalitto, for the appellant (plaintiff).

Jon T. Kukucka, with whom, on the brief, was Johanna S. Katz, Hartford, for the appellee (defendant).

Elgo, Alexander and Devlin, Js.

ALEXANDER, J.

The plaintiff, Leonard Tannenbaum, appeals from the judgment of the trial court denying the motion for contempt filed by the defendant, Stacey Tannenbaum. On appeal, the plaintiff claims that the court improperly modified the existing travel related child custody order by requiring the plaintiff to accompany his minor child on any airline travel, except in the case of an emergency. Specifically, the plaintiff argues that (1) the court's order denying the defendant's motion for contempt constituted a modification because the existing travel related child custody order permitted the child's nanny or driver to accompany the child on air travel in lieu of the plaintiff not only in emergency circumstances, but also when the plaintiff had a health, work, or other family commitment, and (2) the alleged modification was improper because the court did not make findings that a substantial or material change had occurred, that the existing order was no longer in the child's best interests, or that the modification was in the child's best interests. We disagree that the court's order constituted a modification and, therefore, affirm the judgment of the trial court.

In its January 29, 2018 decision regarding a visitation order contained in the parties’ parenting plan, the trial court, Colin, J. , found the following relevant facts and procedural history. "The parties were divorced on April 26, 2017. At that time, the parties submitted an agreement on all matters including a parenting plan, except that they reserved certain issues for a future determination, including this: whether the parenting plan should require that a parent must accompany the minor child on any airline travel.

"This reserved issue was thereafter heard by [the] court and a decision was entered on June 21, 2017. The court ruled as follows: (1) Unless the parties otherwise agree in writing, a parent shall accompany the minor child on any airline travel; (2) Unless the parties otherwise agree in writing, any driver for the minor child must be at least twenty-one years of age; (3) Either parent may seek a modification of these orders after they first engage in good faith discussions regarding these issues with their coparenting coordinator."¹

The plaintiff filed a postjudgment amended motion for modification on December 11, 2017, requesting that the court modify the order "to permit the minor child to travel via airplane with the minor child's nanny, the driver, or any other adult with whom the child is comfortable as it is in the minor child's best interest." The parties, their counsel and the court-appointed guardian ad litem appeared in court on January 25, 2018, for an evidentiary hearing. After hearing testimony from numerous witnesses, the trial court granted the plaintiff's motion on January 29, 2018 (2018 order).

In the 2018 order, the court made the following findings of fact: "The [plaintiff], who resides primarily in Miami Beach, Florida (but who has many homes elsewhere, including in White Plains, New York), wants permission from the court to have his child's nanny and his driver/property manager fly with the child to and from the child's primary residence with his mother in Old Greenwich, Connecticut. The [plaintiff's] parenting time with his son is generally every other Friday at 5 p.m. until Sunday at 5 p.m. as well as holiday and vacation time. The court has reviewed the parties’ final parenting plan in general, and paragraph 2.2 (regular parenting schedule) in particular, and infers that the [plaintiff's] regular parenting time will usually take place in the vicinity of White Plains, New York. Thus, the number of times that the child is likely to travel to and from Florida will be limited. This is a reasonable inference since a three year old child should not be required to commute between Connecticut and Florida on alternating weekends and the court is confident that these two fine and caring parents feel the same way.

"The [defendant] objects to the [plaintiff's] request due to the child's age and her concerns about the difficulties that sometimes arise with air travel, such as diversions, delays, etc. She believes that a parent should be present if these travel difficulties occur. ... The [defendant's] concerns appear to be sincere and genuine. ...

"The [plaintiff's] position appears to be reasonable. He has an ear problem that is worsened during some air travel. This ear problem, as well as his work and other family commitments, may sometimes impact his ability to fly from Florida to Connecticut and back in a short time period. He has missed some parenting time as a result. His nanny and driver are both well known to the child. The child seems to enjoy spending time with them. The nanny, in particular, presented a very thorough and impressive description of how she plans for airline travel with the child. She has flown with the child (in the presence of the plaintiff and others) on private planes but never on commercial flights. It is clear that she knows how to properly care for the parties’ child and is able to handle the usual and customary travel related difficulties that sometimes arise. She appeared to be an extremely competent, experienced and caring childcare professional.

"The [guardian ad litem] supports the plaintiff's requests. The [guardian ad litem] had the opportunity to observe the child in the presence of the nanny and driver and described that interaction in very positive terms. ...

"The court finds that it is in the best interests of this child for his parent to accompany him on air travel, whenever possible, unless emergency circumstances arise that would cause the child to miss entirely his alternate weekend parenting time with the plaintiff. Since the parties generally reside so far from each other, it is important to this very young child for the [plaintiff's] parenting time to be regular and consistent. Thus, if work, family or health related circumstances arise such that the [plaintiff] is unable to accompany the child at all times via air travel, then the nanny and driver who testified in court are reasonable substitutes to step in, on an emergency and limited basis only , to accompany the child to/from Florida. The court expects that these circumstances would be infrequent .

"It cannot be reasonably disputed that flexibility and trust is an important part of cooperative coparenting, and that principle is particularly important in this case when the parents live far apart from each other. The [plaintiff's] choice of the individuals who can handle the air travel appears to be quite reasonable and the [defendant] should trust his ability to make that decision during his parenting time in the limited circumstances contemplated by this decision (health, work or other family related emergency or commitment)." (Emphasis added.)

The court then issued the following orders: "(1) The current orders shall remain in effect until the child is age three. (2) Upon the child attaining age three, in the event that the [plaintiff] is unable to travel by air with the child for his weekend or holiday parenting time due to a health/work/other family emergency or commitment, then he shall immediately so notify the [defendant] in writing and by phone of the circumstances and who will be traveling with the child except that the choices shall be limited to the nanny and driver who testified in court. As previously noted, this should not be a regular and consistent occurrence since the plaintiff generally spends his weekend parenting time in the northeast and travel to/from Florida with the child does not appear to be a regular occurrence. It seems unlikely that these types of emergencies or commitments will frequently arise. To be clear, the first choice to travel by air with the child is a parent —the [defendant's] position in this regard is well founded. In the event that the [plaintiff] is not able to be with the child during the air travel, then he shall instruct the nanny and/or driver (one of whom must accompany the child during air travel in the [plaintiff's] absence) to keep the [defendant] reasonably informed of the child's whereabouts at all times, including keeping her informed of any delays, diversions and upon arrival. It should be noted that the [defendant] is certainly free to accompany the child during air travel if she so desires." (Emphasis added.)

On June 8, 2018, the defendant filed a postjudgment motion for contempt claiming that the plaintiff had violated the 2018 order. On June 12, 2019, the defendant amended her motion for contempt, and claimed, inter alia, that the plaintiff had violated the 2018 order on five separate occasions over the course of one year, three of which occurred over a period of three months. Specifically, the defendant claimed that the plaintiff failed to accompany the child on airline travel on May 28, 2018 (Memorial Day weekend), on June 17, 2018 (Father's Day weekend), on August 4, 2018, and on January 27 and March 31, 2019. The court, Truglia, J. , held an evidentiary hearing on the defendant's amended motion for contempt on June 28 and July 5, 2019.

After the hearing, on July 5, 2019, the court entered an order denying the defendant's motion for contempt (2019 order), which is the subject of this appeal. The order provides: "After an evidentiary hearing, the court does not find that the defendant has carried her burden of proof by clear and convincing evidence that the plaintiff has wilfully violated a clear order of the court.

"The defendant has carried her burden of proof by clear...