Tannenbaum v. Tannenbaum, 208 Conn. App. 16 (2021) (clarification versus modification of prior order)
Officially released September 28, 2021.
In Short: The 1%, with their nannies, drivers, private jets and “many homes” have ample funds with which to argue the very finest points of clarification versus modification to the Appellate Court. This decision (2-1 with a dissenting opinion) ruled in favor of upholding the trial court’s order as a clarification on a close call with very low stakes for everyone involved.
The parties were divorced in 2017. In a post-judgment modification in 2018, the trial court entered orders that the three-year-old child’s parent was “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 [Husband]…. Thus, if work, family or health related circumstances arise such that [Husband] is unable to accompany the child at all times via air travel, then the nanny and driver … are reasonable substitutes to step in, on an emergency and limited basis only …” Additional language in the decision referred to “health/work/other family emergency or commitment.”
Wife filed a motion for contempt alleging that Husband had violated the 2018 order on five occasions in one year. The trial court denied Wife’s motion for contempt, finding that Husband had violated the order, but not willfully so. The trial court ordered Husband “to abide strictly with the court’s orders henceforth requiring him to be the person who travels by air with the child except in the case of emergency, not his convenience.”
Husband appealed, arguing that the court’s order improperly modified the existing travel related orders by requiring him to accompany the minor child on any airline travel, except in case of emergency. Husband argued that (1) the trial court’s order constituted a modification because the prior order permitted the child’s nanny or driver to accompany the child on air travel when he had health, work or other family commitments, and (2) that no finding of a substantial change in circumstances was made, no finding that the existing order was no longer in the child’s best interests was made, nor was any finding made that the modification was in the child’s best interest.
With plenary review as to the construction of judgments, the Appellate Court determined that the trial court clarified, rather than modified the trial court’s prior order. Husband’s interpretation that the exception was intended for any “work, family or health related circumstances…” without reference to an emergency conflicted with the plain language of the prior order. The trial court’s order was intended to clarify the limited nature of the exceptions in the prior order, rather than modify it. There was no alteration of the meaning or substantive terms of the order.
The Judgment was affirmed.
Judge Devlin issued a dissenting opinion. Judge Devlin read the prior order as permitting the nanny or driver to accompany the child in circumstances beyond emergencies, particularly noting the “family emergency or commitment” language. Judge Devlin stated that emergencies are unforeseen and require immediate action whereas commitments are promises of future conduct. Judge Devlin argued that the new order removed the “commitment” aspect of the prior order, and, therefore, modified it, and did so without finding a substantial change in circumstances or making findings as to the best interests of the child.
