Dolan v. Dolan, 211 Conn. App. 390 (2022) (modification of custody and parenting; counsel fees § 46b-62)
Officially released March 29, 2022
In Short: the trial court did not abuse its discretion in granting Wife’s motion for modification to not relocate closer to Husband, as had been originally contemplated in the judgment. The trial court did not abuse its discretion in granting Wife counsel fees pursuant to § 46b-62 to defend the appeal on the basis that failure to do so would undermine other orders.
The parties were married in 2008, had one child, and were divorced by separation agreement in 2018. At the time of the dissolution, Wife lived in West Hartford and Husband lived in Andover, Massachusetts. The separation agreement included a provision stating that, in 2019, Wife would relocate to a location closer to Husband and that Husband would thereafter make efforts to relocate to an area within thirty minutes of Wife.
Between the dissolution and the prospective relocation, the parties had agreed that Husband would have two or three weekends per month during the school year and a shared parenting plan during the summer. They agreed that, upon the relocation of both parties, they would have a fully shared parenting plan on a 5-2-2-5 schedule.
In 2019, Wife filed a motion for modification, claiming that there had been a substantial change in circumstances such that relocation of the child from the current residence, school and community was no longer in the child’s best interests, and that her employment had changed such that she could no longer move and still maintain her job. Wife also filed a contempt motion and Husband filed motions for order, modification, and contempt.
A hearing was held in July of 2019. The trial court issued a memorandum of decision finding that Wife was “more willing to compromise, especially when it relates to their son’s well-being” and that she was more credible. The trial court found that much of Husband’s testimony was self-serving and an attempt to obfuscate his manipulation of Wife regarding finances and scheduling. Husband was found in contempt for demeaning and degrading Wife by referring to her as, e.g., “scumbag trash.” The trial court also found Husband in contempt for various financial failures.
The trial court further found that Wife’s employment circumstances had changed, precluding the relocation while maintaining her employment with her new promotion, and credited her testimony that it was a significant opportunity for her. The trial court found that Wife maintaining her financial independence was in the best interest of the child, where Husband’s prior financial violations had put Wife in a vulnerable financial position. The trial court also found that it was in the child’s best interests to remain in the present circumstances. The trial court vacated the relocation provision and modified the parenting schedule to every other weekend along with the prior division of summer, vacations, and holidays.
Husband appealed. Wife filed a motion for counsel fees to defend the appeal, which was granted in the amount of $7,700, and Husband amended his appeal to challenge that award as well.
Husband’s first claim on appeal was that the trial court abused its discretion in granting the motion to modify in that the modification misread the agreement. The Appellate Court cited the substantial discretion afforded the trial court and cited the substantial and justified factual findings of the trial court to reject this argument.
Husband’s second claim on appeal was that the trial court erred in awarding counsel fees to defend the appeal. Wife’s motion had indicated that failure to award fees would undermine the prior orders. Wife testified that she used investment and retirement assets to pay appellate counsel fees and she was living paycheck to paycheck. The trial court had found that failure to award the fees would undermine the court’s prior financial orders. The Appellate Court cited Leonova v. Leonov, 201 Conn. App. 285 (2020) among other cases for the requirements for counsel fess under § 46b-62 and found no abuse of discretion.
The judgment was affirmed.
