J.Y. v. M.R., 215 Conn. App. 648 (2022) (interim orders after close of evidence; order for school district a year before school began; mootness)
Officially released October 11, 2022
In Short: Many, many issues were raised on appeal. This decision should be reviewed by those seeking to justify an interim order after the close of evidence while awaiting a final decision and by those seeking to secure an order in advance of a future event (such as enrollment in school).
The parties were never married and had a minor child in common born in 2016. In 2017, Father filed a custody action which went to judgment by custody and parenting agreement in 2017. The agreement provided that the parties would share joint legal custody with primary residence to Mother, and Father having seven overnights on a rotating four-week schedule. So long as Mother remained in the school district, the town of Cheshire would remain the primary residence for school purposes.
On 10/17/18 Father filed a post-judgment motion to modify the judgment seeking an increase in his access and designate his residence as primary for school purposes. In 2019 The parties executed two stipulations increasing Father’s overnights to eight and then ten nights over each four-week rotation, which were approved by the trial court. On 11/25/19 Mother filed a post-judgment motion for modification seeking to impose limitations and restrictions on Father’s parenting time.
During December 2019 the trial court held three evidentiary hearings on the parties’ 10/17/18 and 11/25/19 initial motions for modification.
On 1/7/20 Mother filed a motion for continuance for personal medical reasons. The trial court held a telephonic conference on 1/13/20 to address the continuance to discuss whether the continuance should be contingent on the trial court entering a temporary order adopting Father’s proposed parenting plan, which would increase Father’s overnights to 14 days every four weeks. The trial court granted Mother’s motion for continuance without entering interim orders.
The trial court then held a fourth day of evidentiary hearing and then heard closing arguments on 2/13/20 on the initial motions for modification. Father proposed sole legal and physical custody, with the child attending school in his town of Southington, and sought immediate interim orders pending a final memorandum of decision. Mother sought joint legal custody and primary residence with her in Cheshire.
The trial court issued interim orders (citing Yontef v. Yontef, 185 Conn. 275 (1981)) on 2/26/20 pending its issuance of final orders. The interim orders provided joint legal custody, shared physical custody with Father’s proposed parenting schedule, and required leave to file any future motions pursuant to PB § 25-26(g).
On 5/8/20 Mother filed an application for emergency ex parte order of custody seeking temporary custody and no access to Father, based on leaving the child with third parties and failing to abide by CDC recommendations regarding Covid-19, and a motion to modify seeking the same relief. The trial court denied ex parte relief but scheduled a hearing on 6/5/20, which hearing was then postponed and never rescheduled, and the trial court subsequently denied the modification motion without a hearing.
On 9/1/20 TC issued a memorandum of decision resolving the initial modification motions, which incorporated the interim orders into its final orders. Mother appealed.
Thereafter, Mother filed two post-judgment motions for modification, after being granted leave to file by the trial court, seeking to modify the final orders as to the parties’ parenting schedule and primary residence for school purposes. The trial court held an evidentiary hearing and denied Mother’s two additional motions. Mother amended her appeal to encompass this denial.
The Appellate Court first set forth the statutory authority under C.G.S. § 46b-56 regarding modification of an order of custody or visitation. Before modifying a custody order the trial court must find a material change in circumstances or that the order sought to be modified was not based on the best interest of the child and must consider the best interest of the child in so doing. The Appellate Court noted that, “[i]n considering whether to modify visitation orders, as opposed to custody orders, a court ‘is not required to find as a threshold matter that a change in circumstances has occurred. … Instead, [i]n modifying an order concerning visitation, the trial court shall be guided by the best interests of the child ….’” (Quoting Balaska v. Balaska, 130 Conn. App. 510 (2011)).
Mother’s first claim on appeal was that the trial court improperly issued the interim order. The Appellate Court determined that this claim was moot because the interim orders were superseded by the final orders. No practical relief could be granted and mootness implicates subject matter jurisdiction, over which the Appellate Court’s review was plenary. The Appellate Court determined that the “capable of repetition, yet evading review” doctrine did not apply as it was purely speculative as to whether this issue would reoccur, and Mother had not demonstrated a “reasonable likelihood” that it would.
This finding by the Appellate Court seems to me more than a bit odd, in light of the frequency with which I have seen interim orders issued by trial courts (both before and after the conclusion of evidence). I am surprised that the Appellate Court did not simply find that the trial court has authority, once evidence has closed, to issue interim orders subject to a more complete decision, consistent with the Yontef case and the best interests of children. That issue is punted to another day, however.
Mother’s next set of claims on appeal was that the trial court committed error by (1) issuing “tainted” final orders incorporating flawed interim orders, (2) failing to consider whether circumstances had changed since the issuing of interim orders to consider the present best interests of the child, (3) abusing its discretion by transferring primary residence for school purposes to Father, and (4) abusing its discretion by ordering the parties to request leave to file pursuant to PB § 25-26(c) for five years.
As to (1) the Appellate Court applied plenary review to the question of application of law to the facts. The Appellate Court found that the trial court cited the factors of C.G.S. § 46b-56(c) and considered the child’s best interests in its final analysis. The fact that the final orders contained the interim orders did not inherently provide that the trial court committed error in the content those final orders.
As to (2) the crux of Mother’s argument was that the interim orders created prior court orders for purposes of future modification, and thus, without new evidence, there was no basis for new orders. The Appellate Court again applied plenary review to the question of law as to the correct legal standard. The Appellate Court found that the existence of interim orders which were temporary in nature while awaiting final orders did not create a new starting point for modification purposes.
As to (3) the Appellate Court applied the abuse of discretion standard to Mother’s claim that the child’s best interests were not served, and the choice of school involved speculation by the trial court as to the suitability of the district. The trial court relied upon the testimony of the GAL that the establishment of the school district would fortify the child’s position, that Mother did not value Father’s role and importance in the child’s life, and that that data available regarding both town’s kindergarten’s rendered them comparable. The Appellate Court found no speculation in issuing a school designation one year before kindergarten would begin and found no abuse of discretion.
This decision provides a road map by which trial courts may enter orders a little more proactively without running afoul of the need to determine the present interests of the child.
As to (4) the Appellate Court found no abuse of discretion in applying PB § 25-26(g) to both parties for five years. In less than one year following the judgment the parties filed a “slew of motions” concerning the child and the GAL testified that the child was “not unscathed by the distress” that the parties had gone through.
Mother’s next set of claims on appeal was that the trial court (1) improperly denied her 3/30/21 modification motions by applying the wrong legal standard, or (2) by incorrectly failing to find a substantial change in circumstances.
As to (1) Mother argued that the trial court should have considered a material change from March of 2020, rather than September of 2020 when the final orders were issued. The Appellate Court applied plenary review and held that Mother was attempting to use her new motions for modification as a collateral attack on the prior final orders. The Appellate Court found the trial court had applied the correct legal standard.
As to (2) the Appellate Court refused to second guess the trial court’s assessment of the parties’ credibility and found that sufficient evidence was presented to permit the trial court to find as it did. The Appellate Court found no abuse of discretion.
Mother’s Final claim on appeal was that the trial court improperly denied her 5/8/20 modification motion because it failed to hold an evidentiary hearing before denying the motion. The Appellate Court determined that this claim was moot. While the original appeal was pending, Mother filed additional modification motions, which motions included her ex parte claims, over which an evidentiary hearing was held. Any remand to conduct a new evidentiary hearing would therefore be superfluous. Thus, Mother already received the relief she seeks.
Mother’s appeal was denied in part and dismissed in part. The Judgment was affirmed.
