Officially released April 25, 2023
In Short: the “law of the case doctrine” has as many holes as Swiss cheese.
The parties’ parenting plan was approved and adopted by the Court in their January 2019 divorce. The parenting plan provided joint legal custody of the parties’ two children who would reside primarily with Father. Mother was required to comply with alcohol testing and conditions. The parenting plan provided that if either party sought to relocate his/her residence, they would provide certain notice, but left the issue of any relocation to a future determination.
In February 2020 Father filed a motion to modify the parenting plan alleging that Mother had not participated in required alcohol testing, failed to exercise her parenting time with little notice, disparaged him to the children, and that there had been other parenting issues related to Mother’s mental health and substance use. Father alleged that Mother had been arrested on numerous felony and misdemeanor charges and had fled the country. The trial court ordered that Mother not have any contact with the children outside of professional supervision.
In February 2021, Father filed a motion requesting relocation from Greenwich to Manhattan. He alleged that Mother had returned to Connecticut, posted bail, and established residency in Bedford, New York. Father notified Mother of the intended relocation and Mother objected. Father’s motion requested that the trial court determine that the move was not a relocation under § 46b-56d, or, in the alternative, grant the relocation. Mother filed a motion for contempt alleging Father had undertaken the move and school enrollment already in violation of the parenting plan. A GAL was appointed.
On August 5, Judge Shay held a hearing on Father’s motion. The GAL expressed (without being sworn in) that CGS § 46b-56d was not implicated because the parenting plan was not materially impacted and that the move was in the best interests of the children. Both counsel presented argument but there was no testimony (it seems there was insufficient time). The trial court entered a temporary order permitting schooling in Manhattan and ordered a family services evaluation, and opined that this case was a relocation under CGS § 46b-56d.
Despite receiving permission to move to New York City in the temporary order, Father appealed the decision. Mother filed a motion to reargue, which the trial court denied, while stating that it had admonished Father for his unilateral actions, found that it was in the children’s best interests on a temporary basis to enroll in school in New York, and that it had sufficient information to make the finding that the move was a relocation within the meaning of CGS § 46b-56d and it was appropriate to refer the matter to family relations before conducting a full hearing. The trial court noted that the move would not adversely impact Mother’s supervised access.
Father argued on appeal that the trial court’s determination that the move constituted a relocation was improper because the existing parenting plan was not affected, and that he will be prejudiced by the finding at a future hearing, due to the higher standard under § 46b-56d than under a basic modification. Mother argued that the appeal should be dismissed for lack of standing.
The Appellate Court first addressed the issue of aggrievement as a requirement of standing, noting that there are two types, classical and statutory. Classical aggrievement requires demonstration of a specific personal and legal interest in the subject matter and that such interest has been injuriously affected by the decision. Statutory aggrievement exists by legislative fiat where legislation grants standing. The Appellate Court concluded that Father was not aggrieved.
The Appellate Court reasoned that Father received the relief he sought and disagreed that Father would be precluded from arguing the standard for relocation at a later hearing. Father could ultimately prevail at the later hearing, and if he did not do so, could at that time still challenge such potential decision on the basis of his argument that it was not a relocation pursuant to § 46b-56d. The Appellate Court also determined that, in this case, a future trial court will not be bound by the determination of Judge Shay that this is a relocation case under § 46b-56d, based on the expeditious nature of the orders and lack of a full hearing. The Appellate Court noted that the law of the case doctrine “does not preclude a judge from deciding an issue in a way contrary to how it was decided by a predecessor judge in the same case [and another judge] may … decide the issue differently if he or she is convinced that the prior decision is wrong.”
Father’s appeal was dismissed, however, Father appears to have secured the relief he was looking for despite not prevailing in his appeal – namely, the Appellate Court’s indication that the law of the case will not bind the trial court at a future hearing as to whether or not the move constituted a relocation and the fact that Father may still appeal such finding in future if it is made.
