Batista v. Cortes, AC 43244

• Decision Date: 23 March 2021
• Docket Number: AC 43244
• Citation: 203 Conn.App. 365,248 A.3d 763
• Court: Connecticut Court of Appeals
• Parties: Daisy G. BATISTA v. Angel L. CORTES

203 Conn.App. 365

248 A.3d 763

Daisy G. BATISTA

v.Angel L. CORTES

AC 43244

Appellate Court of Connecticut.

Argued November 18, 2020

Officially released March 23, 2021

Angel L. Cortes, self-represented, the appellant (defendant).

Bright, C.J., and Lavine and Alexander, Js.^*

LAVINE, J.

The self-represented defendant, Angel L. Cortes (father), appeals from the judgment of the trial court denying his motion to modify his child's primary residence to his residence from that of the plaintiff, Daisy G. Batista (mother).¹ On appeal, the father (1) claims, in essence, that the court abused its discretion by concluding that it was in the child's best interests that she continue to reside primarily with her mother and (2) challenges the results of several payment audits showing that he owes an arrearage in child support. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The parties, who have never married one another, are the parents of a child born in 2004. The mother lives in Florida and the father lives in Connecticut. On December 7, 2006, the parties entered into a court-approved parenting plan agreement that provided that they share joint legal custody of the child, who lives primarily with the mother. An August 20, 2008 court order set forth a child support obligation of $71 per week for the father.

On May 7, 2018, the father filed a motion for contempt, seeking to revise the parenting plan agreement, which he alleged that the mother had violated by keeping the child from him. In that motion, the father also requested that the child reside primarily with him and that the mother repay him for what he alleged was his overpayment of child support over the years due to misrepresentations made by the mother. Following a hearing on August 7, 2018, the court, Prestley , J. , ordered visitation for the father during the holidays. At that hearing, the father accused the mother of using corporal punishment against the child.² The court immediately indicated that it was referring the matter to the Department of Children and Families (department) and appointed a guardian ad litem to interview the child regarding the father's allegations.

On September 7, 2018, the father filed a motion to modify custody, which is the subject of the present appeal. In his motion, the father sought to modify the primary residence of the child, alleging that the guardian ad litem believed that it was in the child's best interests for her to live with him, that he had new employment that would permit him to spend time with the child, and that he had concerns about the child's physical safety while residing with her mother.³ The father did not request a modification of child support in that motion.

The court held a hearing on the father's motion to modify custody, extending across two days on April 11, 2019, and June 3, 2019. During the course of the proceeding, further facts came to light concerning the father's previous allegation that he has been overpaying child support.⁴ The court told the father that it could not rule on the issue of whether his arrearage was correct and that he needed to request that the child support enforcement office conduct audits of his past payments. The court, however, took the matter into consideration insofar as it related to the motion to modify custody before it. In doing so, the court heard evidence from child support enforcement officers regarding the accuracy of new audits the father had requested pursuant to the court's direction. At the conclusion of the hearing, the court commended both parents for their devotion to the child but emphasized that it would need to make a difficult decision focused on the child's best interests. On June 12, 2019, the court issued a memorandum of decision denying the father's motion to modify custody.

In its decision, the court analyzed the child's situation with respect to both parents. The court found that the child wanted to live with her father to get to know him better. She reported feeling more "stressed" with her mother, who "has high expectations of [the child], wants her to go to college and they argue a lot." The mother worked two jobs to support her family, which reduced her availability to her children and resulted in frequent moves for the family and school changes for her children. She had received a promotion, however, which would allow her to work only one job and move to a larger apartment. The court found that the father's child support payments were then $6533.11 in arrears and that the mother's financial difficulties over the years were largely attributable to the father's failure to pay child support.

The court described the mother's belief that a move would cause upheaval in the child's life and that the child would not be college bound or realize her potential in the father's care. The court found that the guardian ad litem had "testified to her difficulty in making a recommendation on this motion because of the fact that the child is doing well academically in the [mother's] care, is a very good kid raised for the most part by the [mother] and that there are high expectations for her in her mother's care. At the same time, the child is a lot like her father, desires to come to Connecticut to live with him and her relationship with the [mother] can be difficult." The court found that the father had claimed that "on one occasion, the [mother] had struck the child in the face" and that the father's girlfriend had expressed concerns that the child had "reported an instance when the [mother] pulled [the child's] hair and grabbed the back of her neck." The court, however, did not make further findings regarding these allegations.

The court applied the factors set forth in General Statutes § 46b-56 (c)⁵ to determine the best interests of the child, emphasizing its consideration of "the child's past and present interactions with each parent and sibling, the importance of maintaining continuity in her home, school and community environment, the child and parent's preferences and the length of time that the child has lived in a stable and satisfactory environment." It found that the child has lived in the sole care of the mother for most of her life, is doing well in school, and has a younger brother with whom she could lose contact if she lived with the father. The child has spent time with her father in the summer when he had been unemployed, but he currently works a full-time job. The father has been supported by his significant other when he is not working and has paid little to no child support to the mother, resulting in her struggles to provide for the child. The court recognized the child's desire to spend more time with her father but pointed out that the early teenage years can be difficult for a child and that the beginning of high school is not the best time for a child to undertake a drastic change in living and family situations. The court thus denied the motion and ordered that the parties continue to share joint legal custody of the child, whose primary residence will continue to be in Florida with the mother and who will continue to visit the father.⁶ The court also increased the father's weekly child support obligation to $95 per week, plus arrearage payments. On June 21, 2019, the father filed a motion for reconsideration, which was denied by the court, Olear , J .⁷ This appeal followed.

On appeal, the father claims that the court erred in denying his motion to modify the child's primary residence and in failing to examine his alleged overpayment of child support. We do not agree.

The standard of review in family matters is well settled. "An appellate court will not disturb a trial court's orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action." (Internal quotation marks omitted.) LeSueur v. LeSueur , 186 Conn. App. 431, 437–38, 199 A.3d 1082 (2018). "[ Section] 46b-56 provides trial courts with the statutory authority to modify an order of custody .... Before a court may modify a custody order, it must find that there has been a material change in circumstances since the prior order of the court, but the ultimate test is the best interests of the child." (Citations omitted; emphasis omitted; footnote omitted; internal quotation marks omitted.) Clougherty v. Clougherty , 162 Conn. App. 857, 868–70, 133 A.3d 886, cert. denied, 320 Conn. 932, 134 A.3d 621 (2016), and cert. denied, 320 Conn. 932, 136 A.3d 642 (2016).

I

The father challenges the court's conclusion that it was in the child's best interests to remain with her mother in Florida. He raises four arguments in support, namely, that the court (1) failed to act properly in response to allegations that the mother engaged in corporal punishment, (2) exhibited bias against him and in favor of the mother, (3) failed to appoint proper representation for the child, and (4) improperly credited the testimony of the mother's witness.

The father first argues that the court "did not properly act" on learning that the mother had used corporal punishment, "because proper investigations were not completed; and the expected urgency was not in place." He asserts, without providing any evidence whatsoever, that no investigation resulted from the court's decision to refer the matter to the department in August, 2018, which he claims "goes against [ General Statutes §] 46b-6."⁸

Our review of this matter discloses that the father has neither pointed to anything in the record to demonstrate that the department failed to act on the court's referral nor asked the trial court for an articulation concerning this referral. The trial court did not make any...