Ford v. Ford

• Citation: 789 A.2d 1104,68 Conn. App. 173
• Decision Date: 12 February 2002
• Docket Number: (AC 20496)
• Court: Appellate Court of Connecticut
• Parties: JANE ARONSON FORD v. AARON FORD

68 Conn. App. 173

789 A.2d 1104

JANE ARONSON FORD v. AARON FORD

(AC 20496)

Appellate Court of Connecticut.

Argued October 16, 2001.

Officially released February 12, 2002.

Schaller, Mihalakos and Dranginis, Js. Samuel V. Schoonmaker IV, with whom was Samuel V. Schoonmaker III, for the appellant (defendant).

Gary I. Cohen, with whom was Marci Finkelstein, for the appellee (plaintiff).

Opinion

DRANGINIS, J.

In this dissolution of marriage action, the defendant, Aaron Ford, appeals from the judgment of the trial court awarding primary physical custody of the parties' minor child to the plaintiff, Jane Aronson Ford, and permitting the plaintiff to relocate with the minor child to Massachusetts. On appeal, the defendant claims that the court (1) improperly allowed the plaintiff to relocate with their minor child to Massachusetts because it failed to apply the standards governing relocation issues as set forth by our Supreme Court in Ireland v. Ireland, 246 Conn. 413, 717 A.2d 676 (1998) (en banc), (2) abused its discretion in denying his motion to open the testimony and (3) abused its discretion in issuing the custody, relocation and visitation orders. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of this appeal. The parties were married in Massachusetts on July 24, 1993. The parties had one child, Joshua, who was born on May 2, 1997. In April, 1998, the parties moved from New York City to Greenwich, where the defendant currently resides. The parties separated on December 24, 1998.

The trial court rendered a judgment dissolving the marriage of the parties on January 3, 2000. At the trial for the dissolution of marriage, the plaintiff expressed her desire to relocate with the child to the Boston area. In dissolving the marriage, the trial court awarded joint legal custody of the parties' minor child. The court, however, granted primary physical custody of the child to the plaintiff and permitted the plaintiff to relocate with the child to Massachusetts. This appeal followed.

I

The defendant presents several challenges to the court's decision to permit the plaintiff to relocate to Massachusetts with the parties' child, all of which concern the decision of our Supreme Court in Ireland v. Ireland, supra, 246 Conn. 413.¹ Essentially, the defendant contends that by declining to apply the criteria set forth in Ireland, the court used an improper legal standard in permitting the plaintiff to relocate, and, therefore, this court should overturn the trial court's decision. To resolve this claim, the threshold question is whether Ireland applies to relocation issues that arise when the initial custody determination is made at a dissolution proceeding.

The following additional facts are relevant to our disposition of this claim. The primary dispute at the proceedings concerned the plaintiffs intention to relocate with the child if granted primary physical custody. After both sides presented evidence, the court granted joint legal custody of the minor child to the parties, awarded primary physical custody to the plaintiff and permitted the plaintiff to relocate with the parties' child to the Boston area.

In allowing the plaintiff to relocate, the court stated: "[W]e are involved with the initial determination of the issue of custody with neither party having been designated the primary physical custodian previously. Although the factors and considerations set forth in the Ireland decision were of interest to the court and were utilized by it, this court has not allocated the burden of proof as required in the Ireland situation." Rather than applying the Ireland factors, the court instead analyzed the plaintiff's request to relocate under the best interest of the child standard set forth in General Statutes § 46b-56. The court found that it was in the best interest of the child to permit relocation because of the plaintiffs familial ties and increased job opportunities in Massachusetts, that moving to Massachusetts will improve the plaintiffs and, thus, the child's quality of life, and that the Boston area is of geographic proximity to where the defendant resides in Connecticut such that the defendant will be able to visit his son frequently.

Whether the Ireland factors and its burden shifting scheme apply to relocation issues that arise when the initial custody determination is made at a dissolution of marriage proceeding is an issue of first impression before this court and presents a question of law, affording us plenary review over the claim.² See In re Antony B., 54 Conn. App. 463, 469, 735 A.2d 893 (1999). Thus, "[w]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct ... and whether they find support in the facts that appear in the record." (Citation omitted; internal quotation marks omitted.) In re Jonathan M., 255 Conn. 208, 217, 764 A.2d 739 (2001).

Prior to our Supreme Court's decision in Ireland, the courts utilized the best interest of the child standard, as set forth in § 46b-56 (b), in deciding relocation issues. Section 46b-56 (b) provides in relevant part: "In making or modifying any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the child...." Our legislature, however, has not enacted a statute specifically addressing the particular issue of relocation.

In Ireland v. Ireland, supra, 246 Conn. 428, our Supreme Court articulated a burden shifting scheme to evaluate the best interest of a child in determining postjudgment relocation matters. In furtherance of this scheme, our Supreme Court held that "a custodial parent seeking permission to relocate bears the initial burden of demonstrating, by a preponderance of the evidence, that (1) the relocation is for a legitimate purpose, and (2) the proposed location is reasonable in light of that purpose. Once the custodial parent has made such a prima facie showing, the burden shifts to the noncustodial parent to prove, by a preponderance of the evidence, that the relocation would not be in the best interests of the child." Id.

To determine the best interest of the child in a postjudgment relocation matter, our Supreme Court in Ireland adopted the factors as enumerated by the New York Court of Appeals in Tropea v. Tropea, 87 N.Y.2d 727, 665 N.E.2d 145, 642 N.Y.S.2d 575 (1996). "These factors are: `[E]ach parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent, the degree to which the custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements.' ... [Another relevant factor is] `the negative impact, if any, from continued or exacerbated hostility between the custodial and noncustodial parents, and the effect that the move may have on any extended family relationships.'" (Citation omitted.) Ireland v. Ireland, supra, 246 Conn. 431-32, quoting Tropea v. Tropea, supra, 740-41.

The facts in Ireland are worth noting and are central to our resolution of this claim. In Ireland, the parties' marriage was dissolved in 1990, with the trial court awarding joint custody of the parties' minor son and primary physical custody to the plaintiff mother. Six years later, in 1996, the plaintiff custodial parent sought to relocate to California with her minor child. The trial court and this court denied the custodial parent's request to relocate, concluding that it was not in the best interest of the minor child. In arriving at that decision, the trial court and this court placed the burden of proof as to the child's best interest on the custodial parent. Our Supreme Court granted the plaintiff's petition for certification as to the following two relevant issues: "1. Did the trial court consider the correct criteria for determining the best interests of the child when the parent who was awarded primary physical custody of the child wishes to relocate?"; "2. Was the trial court correct in placing the burden of proof on the custodial parent?" Ireland v. Ireland, supra, 246 Conn. 417.

It is within the context of a postjudgment proceeding to modify custody that our Supreme Court announced the burden shifting scheme for determining whether to permit a custodial parent to relocate. The Supreme Court's decision was based on its conclusion that the best interests of the child are intertwined with the interests of the postjudgment custodial parent. Id., 422. Our Supreme Court explained that "the prospects awaiting the custodial parent in a new location may be such that the child's best interests would be served by the custodial parent being allowed to pursue those prospects." Id., 423. Moreover, our Supreme Court decided that burden shifting was appropriate at the postjudgment modification juncture because "it should be presumed that when primary physical custody was entrusted to the custodial parent, the court making that determination considered that parent to be the proper parent to make the day-to-day decisions affecting the welfare of the child.... Placing the burden on the noncustodial parent [to demonstrate that relocation is not in the best interest of the child] is consistent with the trust shown by the court in awarding primary physical custody in the first instance to the custodial parent." Id., 426.

In adopting the Tropea factors, our Supreme Court further concluded that "an attempt to determine what is best for the child without consideration of what is best for the family unit, with whom the child spends the most significant amount of his or her time, would be an incomplete inquiry.... [I]n relocation cases, it is not...