Coleman v. Bembridge, 207 Conn. App. 28 (2021) (prospective modification of custody; abuse of discretion & best interests)
Officially released August 31, 2021.
In Short: (1) This decision has opened a broad loophole for the trial court to enter prospective modification of parenting plans in the future, so long as there is not a change in the designation of “physical custody.” (2) Legal custody and physical custody are distinct, and the requirements and presumptions that apply to legal custody do not apply to physical custody. (3) The trial court has tremendous discretion to order unconventional parenting plans that are substantially disparate from what has been requested in claims for relief. (4) The catch-all claim for relief “anything else deemed fair by the court” or similar language may come back to haunt a litigant in a due process argument.
The parties met online in April of 2015, Wife lived in Meriden and Husband lived in Saskatchewan, Canada. They were married in Portland, Connecticut in October of 2016. They continued to live apart until Wife relocated to Saskatchewan in July of 2017, at which time they immediately conceived a child. During the pregnancy, Wife informed Husband that she wished to end the marriage and moved back to Connecticut where she has since resided in her father’s home. Wife filed for divorce in February of 2018 and the child was born in April of 2018. Wife amended her complaint to seek sole legal custody and primary residence of the child, although included in her claim for relief “anything else the court deems fair.”
The divorce was tried before Judge Kevin Murphy over three days in January 2019. Wife’s proposed orders requested sole custody and “other and further relief both in law and in equity to which the court deems appropriate.” Husband’s proposed orders requested joint legal custody and primary residence of the child.
The trial court awarded joint custody with final decision-making to Wife and primary residence with Wife until the child’s second birthday. Upon the child’s second birthday, and continuing until the start of school following the child’s fifth birthday, the child’s physical residence was to alternate between the parties, switching every two months or as agreed upon by the parties. Upon the child’s enrollment in school after his fifth or sixth birthday, primary residence would revert to Wife with Husband having one week of access each month during which he must ensure that the child attends school. Various other orders entered with regard to holiday, summer and virtual access. The trial court did not state whether “joint custody” applied solely to joint legal custody or was intended to also mean joint physical custody. Additional orders were entered that were not relevant to the appeal. Wife appealed the orders of physical custody but did not challenge the order of legal custody.
On appeal, Wife claimed that the trial court (1) improperly modified the child’s physical custody prospectively, (2) exceeded its statutory authority and violated Wife’s due process rights when it ordered joint physical custody which neither party had requested, (3) abused its discretion in entering physical custody orders that were (a) predicated on inconsistent factual findings, (b) incompatible with the court’s legal custody orders and (c) not in the child’s best interests.
Wife’s first claim is that the physical custody orders “provide for automatic wholesale changes based solely upon the child’s age” without real time determinations of the child’s best interests. Husband argued that the order does not create prospective modifications of custody, but a permissible “tiered custodial plan” based on the present best interests of the child.
The Appellate Court applied plenary review to the application of law to the facts. The Appellate Court cited Guss v. Guss, 1 Conn. App. 356 (1984) and Emerick v. Emerick, 5 Conn. App. 649 (1985) in stating the principles that a trial court “may not prospectively modify a custody order because, when contemplating whether to modify custody, a court must consider the real time best interest of the child” and a “transfer of custody cannot be automatically accomplished upon the happening of a future event…” The Appellate Court then distinguished this case from both precedents, rejecting “the foundational premise that the court’s physical custody orders result in future modifications of the child’s physical custody. Instead, under the court’s orders, no parent has sole physical custody of the child; rather, the child benefits from parenting by each of his parents, under the circumstances of this case, by alternating between his parents’ residences.”
The Appellate Court interpreted the trial court’s order to be both joint legal custody and joint physical custody. The Appellate Court cited the Connecticut Practice Series for the premise that “it is common for a joint-custody order to provide that the child will reside ‘primarily’ with one of the parents. It is also common to devise a schedule alternating the days, weeks, months or other blocks of time which the child will spend with each parent.” The Appellate Court justified the trial court’s decision as not being a prospective modification by taking a tortured interpretation the trial court’s orders as constituting “joint physical custody.” Thus, the fact that the child would be changing residences like the flashing of a strobe light before ultimately reverting to living primarily with Wife three or four years later did not constitute a change in custody, because physical custody was always “joint” despite the very real changes in where the child would live at future pre-designated times.
Wife’s second claim was that the trial court awarded joint physical custody (A) without statutory authority and (B) without providing Wife fair notice and opportunity to be heard, depriving her of due process.
As to part A, Wife claimed that pursuant to 46b-56a that the trial court could only award joint physical custody if it was agreed to or if it was requested by at least one party. Husband argued that this conflates the requirements of legal and physical custody. The Appellate Court exercised plenary review to the issue of statutory construction. The Appellate Court again cited Emerick, this time for the principle that legal and physical custody are severable. The Appellate Court held that no authority imposes restriction on the court’s authority to award joint physical custody, and that the plain language of § 46b-56a provides for joint legal custody without joint physical custody.
As to part B, Wife claimed that because neither party sought joint physical custody, she did not have fair notice that the court would contemplate such an award or a reasonable opportunity to be heard as to such award. The Appellate Court applied plenary review to the question of law presented. The Appellate Court noted that Wife also requested “anything else the court deems fair” in her proposed orders. Given the testimony and subject of the trial and broad relief requested, the Appellate Court was unpersuaded that Wife suffered any lack of due process.
Wife’s third claim was that the trial court abused its discretion in entering physical custody orders that were (a) predicated on inconsistent factual findings, (b) incompatible with the court’s legal custody orders and (c) not in the child’s best interests. The Appellate Court first noted the deference afforded the trial court in determining the best interests of the child pursuant to 46b-56. The Appellate Court noted the trial court’s finding that, absent specific court orders, “it is unlikely that [Wife] will foster the relationship between the child and [Husband]…” The Appellate Court found no inconsistency in the trial court’s factual findings and found no incompatibility between joint legal custody with final decision making to Wife and the orders that the child’s residence alternate.
As to Wife’s claim that the trial court’s orders were not in the child’s best interests, in that the child would be deprived of physical interaction with each parent for months at a time from a very young age, the Appellate Court reiterated the deference afforded to the trial court under the abuse of discretion standard. Ironically, in light of the fact that the Appellate Court found there to be no prohibited prospective changes inherent in the trial court’s decision, the Appellate Court concluded its finding that there was no abuse of discretion by noting that either party could move to modify the court’s custody orders in the future based on a substantial change in circumstances.
To this writer, a decision that places a two-year-old child in an alternating two-month stays with each parent is clearly incompatible with the child’s best interests based on principles of developmental psychology and should constitute abuse of discretion. Further, Wife was denied the opportunity to present evidence of the inappropriateness of such decision, not by an order of joint physical custody, but because the trial court’s orders were so bizarre and beyond the scope of what either party requested or should have expected that Wife could not possibly have anticipated them. Lastly, a two-month-alternating-schedule morphing into primary-residence-with-Wife-and-one-week-per-month-with-Husband at either the child’s fifth or sixth birthday is clearly a prospective modification, and interpreting both schedules as constituting “joint physical custody” completely misses the fundamental underlying issue. Putting aside the fact that the trial court never actual stated that it was awarding “joint physical custody” in the first place and awarded primary residence at various times, this is the very definition of a prospective modification. Three Appellate Judges, however, felt otherwise. Until and unless the Supreme Court weighs in, Coleman is now the law of the land. A trial court may be permitted to prospectively modify a parenting plan and change primary residence so long as it remains “joint physical custody.”
