82 CBJ 339. DEVELOPMENTS IN CONNECTICUT FAMILY LAW: 2006.

• Author: By DANIEL ROBERTS AND NORMAN ROBERTS II(fn*)

Connecticut Bar Journal

Volume 82.

82 CBJ 339.

DEVELOPMENTS IN CONNECTICUT FAMILY LAW: 2006

Connecticut Bar Journal Volume 82, No. 3, Pg. 339 September 2008

DEVELOPMENTS IN CONNECTICUT FAMILY LAW: 2006By DANIEL ROBERTS AND NORMAN ROBERTS II(fn*)The Appellate and Supreme Courts were very busy affirming and challenging established assumptions of Family Law in 2006. Their decisions impact the litigation strategies of the family law practitioner, as well as the lives of the litigants.

1. CUSTODY AND RELOCATION

   In Reza v. Leyasi,(fn1) the parties married in Pakistan in August, 1990. In December 1990, the wife came to the united States with her mother, sister and brother. The following year, the husband joined the wife and her family in New Haven. In April 2002, the wife went into hiding in Massachusetts with the parties' minor child, claiming that the husband physically and sexually abused her.

   In April 2002, the husband filed a complaint seeking dissolution of his marriage and sole custody of the child. In October 2003, the court dissolved the parties' marriage and awarded sole custody to the husband. In November 2003, the husband discovered that the wife and minor child were living in Massachusetts, and attempted to register the Connecticut dissolution judgment there. The wife subsequently filed motions to open the Connecticut dissolution, claiming the court had no personal jurisdiction, and that she did not have notice that an action was pending. The parties agreed that the motions to open could be treated as motions to modify custody and support.

   The court conducted hearings in November, 2004, and found that, although both parties were capable of providing an appropriate and caring home, forcing the wife to relocate to Connecticut with the minor child, or ordering that the minor child live with her father in Connecticut, "would be such a disruption in the child's life that it would not be in the child's best interests."(fn2) Based upon this reasoning, the court ordered joint legal custody, with physical custody to the wife. The husband subsequently filed a motion for articulation, asking whether the trial court considered the facts as set forth in ireland v. ireland(fn3) for relocation. The motion was denied by the court.

   In upholding the trial court's decision, the Appellate Court stated, "Despite the [husband's] efforts to describe this case as a post-dissolution relocation case, the facts demonstrate that no relocation was sought after a dissolution judgment had been rendered. As a result, ireland is not controlling, and the basic question is not whether a party should be allowed to relocate, but whether the joint custody order, with physical custody in the [wife,] should be disturbed."(fn4)

   The Appellate Court reasoned that because the paramount concern is the best interests of the child, the well being of the child-rather than the punishment or reward of a parent- ought to guide the court's decision in every custody case.

   In stahl v. Bayliss,(fn5) the Appellate Court reaffirmed the long-standing rule that a trial court must consider the present best interests of the child when entering custody orders.

   Stahl was a fully contested 2003 dissolution of marriage case. The parties, who had three children of their 19-year marriage, participated in an early intervention custody program in an attempt to mediate their custody dispute. Following participation in that program, pendente lite, the parties entered into a hand-written 14-paragraph stipulation regarding custody and visitation.

   The stipulation specified that the parties believed that its terms were in the best interests of the children, and included a statement of the parties' intention to bifurcate the financial issues of the dissolution from the parenting issues. The trial court approved the stipulation and found it to be fair and equitable under all the circumstances, stating that "[a]t the time a final decree enters in this matter... this court or any other Superior Court will incorporate by reference this particular stipulation as the custody and visitation orders of the court."(fn6)

   In April, 2004, prior to trial on the financial issues, the defendant father filed a motion to modify and vacate the stipulation. He contended that the stipulated parenting plan was not working effectively and was not serving the best interests of the children. The court refused to entertain the defendant's motion, concluding that any revision of the stipulated orders had to be done post-judgment.

   At the commencement of trial, the attorney for the minor children was excused by agreement of the parties. No evidence related to custody was presented at trial. The trial court's memorandum of decision incorporated the parties' 2003 custody and visitation stipulation into its final decree. while it noted its 2003 finding that the custody and visitation stipulation was fair and equitable, the trial court did not find that the custody stipulation was in the then present best interests of the children.

   Stating that a trial court has a "fundamental obligation to make a present best interests determination at the time of the dissolution, prior to entering its final decree,"(fn7) the Appellate Court reversed, remanding for a full trial on the merits. Citing Guss v. Guss,(fn8) the Appellate Court affirmed that best interests of a child cannot be determined prospectively.

   The Appellate Court's decision in stahl may have caused some confusion about the status of the various mediation programs designed to assist litigants in resolving contested custody matters, especially given the often quoted statement from hall v. Hall(fn9) that "[i]n a dissolution action the custody of minor children is not finally determined until the entry of the decree dissolving the marriage."(fn10) That statement in hall represents a misinterpretation of the authority upon which it is based, and is contrary to our custody statute.

   The hall court cites 2 Nelson, Divorce and Annulment (1961 Rev.) § 15.28,(fn11) p. 282 as authority for the proposition that final custody orders can enter only at the time of the decree. That statement is borrowed from an unsupported introductory sentence in a section of nelson regarding pen- dente lite custody, and is contrary to the express language of Section 46b-56,(fn12) which authorizes the court to make any proper order regarding custody of minor children "any time after the return day."(fn13)

   It appears that the court has the authority to enter "final" custody orders, even if financial issues remain unresolved and the case remains pending. Had the stahl trial court entered the parties' September 9, 2003 stipulation as a "final" custody order on September 9, 2003, there would not have been a Guss issue. The defendant father would have been able to pursue a modification of custody if he could have proven either that a substantial change in circumstances had taken place since the entry of the custody stipulation, or that the stipulation was no longer in the best interests of the children.

   In Daddio v. o 'Bara,(fn14) the Appellate Court held that the trial court did not err in denying the former husband's post-judgment motion for additional visitation, and ordering sole custody to the former wife.

   The parties divorced in 1997. They had one child of the marriage. In 2000, the parties consensually modified their divorce agreement, granting the father, inter alia, increased visitation. In 2002, the parties again modified the agreement, further increasing the father's parenting time. Both of these post-judgment modifications were approved and entered as orders of the court. In 2003, the husband again sought a modification of custody, this time requesting joint physical custody and an increase of four additional overnight visits per month. The husband also sought to eliminate his child support obligation.

   In August, 2005, the trial court rendered a memorandum of decision indicating that the minor child suffered extensively from the detrimental effects of consistent litigation initiated by the father in his efforts to spend more time with him. The court found that the frequent and repeated litigation harmed the child, depriving him of the ability to grow and develop and that the father failed to recognize the harm caused by his "strategy of attrition by repeatedly asking for small increases in his parenting time."(fn15) The court concluded that to break this cycle, it was in the child's best interest to deny the father's request for additional time.(fn16)

2. ALIMONY/CHILD SUPPORT

   The Sabrowskis(fn17) were divorced in 1999. Their separation agreement required the husband to pay the wife alimony of $550 per week, maintain her medical and dental coverage, and pay 50% of her unreimbursed medical and dental expenses as long as he had the obligation to pay alimony. In 2004, the husband filed a motion to modify alimony, alleging a substantial change in circumstances due to a business downturn and loss of rental income.

   At the hearing on that motion, the husband testified that, at the time of the dissolution, he had been paying himself a salary of $600 per week as sole officer of the funeral business he owned and had been receiving an additional $24,000 per year of rental income that the funeral business paid to him as owner of the building in which it operated. He further testified that as of the time of the modification hearing, he no longer received the rental income. The trial court, crediting the...