Blake v. Blake

Decision Date26 April 1988
Docket NumberNo. 13257,13257
Citation207 Conn. 217,541 A.2d 1201
PartiesTeresa B. BLAKE v. Benson P. BLAKE.
CourtConnecticut Supreme Court

Wesley W. Horton, with whom was Susan M. Cormier, Hartford, for appellant (defendant).

Marilyn Paula Seichter, with whom, on the brief, was Donald J. Cantor, Hartford, for appellee (plaintiff).

Bruce Louden, Hartford, for minor children.


SHEA, Associate Justice.

In this appeal from a judgment dissolving the marriage of the parties, the defendant husband, Benson Blake, claims that the trial court erred: (1) in permitting the plaintiff wife, Teresa Blake, to move the children to California when he was awarded joint custody of them; (2) in miscalculating the increase in the value of his assets during the marriage; and (3) in abusing its discretion in determining the financial orders concerning child support, alimony and distribution of the marital property. We find no error.

The parties were married in California on February 8, 1975. After briefly living in Massachusetts and Ohio, they lived in California from 1977 to 1983. All three of their children were born in California. The family moved to Avon in 1983. The trial court, Barall, J., rendered final judgment on July 27, 1987, dissolving the marriage of the parties. It awarded "joint custody" of the children, but ordered that the children "reside primarily" with the plaintiff, "who may remove the children to the San Diego area of California to live." The court granted liberal visitation rights to the defendant.

The principal financial orders were as follows: (1) the plaintiff was ordered to convey her interest in the family home in Avon to the defendant; (2) the defendant was directed to convey his interest in a lot in California to the plaintiff; (3) the plaintiff was awarded $1,200,000 as an additional share of the marital assets; (4) the defendant was directed to pay the plaintiff periodic alimony of $50,000 a year, only 50 percent of this award to be tax deductible by the defendant; and (5) the defendant was ordered to pay the plaintiff $200 per week for each of the three children as child support.


The defendant claims that the trial court erred in permitting the plaintiff to move the children to California even though he has joint custody of them. First, he argues that the court should have required the plaintiff to demonstrate a compelling reason to justify relocating the children to an area far from their present home, where he lives. Second, in the alternative, he contends that the court abused its discretion in permitting the plaintiff to remove the children to California.


The defendant maintains that there should be a presumption that moving a child far away from one joint custodial parent is not in "the best interests of the child"; General Statutes § 46b-56(a) and (b); 1 because such a relocation interferes with a primary goal of joint custody, "a sharing of continued contact with both parents." Emerick v. Emerick, 5 Conn.App. 649, 656, 502 A.2d 933 (1985), cert. dismissed, 200 Conn. 804, 510 A.2d 192 (1986). He relies on a series of New York cases for the principle that a joint custodial parent seeking to move children far away from the other joint custodial parent must demonstrate a compelling reason to justify the removal. Weiss v. Weiss, 52 N.Y.2d 170, 172, 418 N.E.2d 377, 436 N.Y.S.2d 862 (1981); Daghir v. Daghir, 82 App.Div.2d 191, 192, 441 N.Y.S.2d 494 (1981), aff'd, 56 N.Y.2d 938, 940, 439 N.E.2d 324, 453 N.Y.S.2d 609 (1982); Barie v. Faulkner, 115 App.Div.2d 1003, 497 N.Y.S.2d 565 (1985); Bryan v. Bryan, 99 App.Div.2d 743, 471 N.Y.S.2d 650 (1984); McLarney v. McLarney, 96 App.Div.2d 580, 465 N.Y.S.2d 274 (1983); Courten v. Courten, 92 App.Div.2d 579, 580, 459 N.Y.S.2d 464 (1983); see also Sydnes v. Sydnes, 388 N.W.2d 3, 5-6 (Minn.App.1986); McAlister v. Patterson, 278 S.C. 481, 482, 299 S.E.2d 322 (1982).

All of the cases cited by the defendant, however, involved a parent who sought a postjudgment modification of a joint custody decree and a substantial alteration of the other parent's visitation rights in order to relocate the children far away from where the original decree permitted them to live. Weiss v. Weiss, supra; Daghir v. Daghir, supra; Barie v. Faulkner, supra; Bryan v. Bryan, supra; McLarney v. McLarney, supra; Courten v. Courten, supra; Sydnes v. Sydnes, supra; McAlister v. Patterson, supra. In all of these cases the original judgment had contemplated that the parent with whom the child lived would reside within the same geographic area as the other parent. We have held that the burden of proving that a modification of custody is in the best interests of the child rests with the party seeking a modification. Cookson v. Cookson, 201 Conn. 229, 233-41, 514 A.2d 323 (1986). In the case at bar, however, we are not concerned with the modification of a previous judicial determination involving the place of the child's residence but with the initial resolution of the residence issue in the dissolution decree, which declared that the parent residing with the children may move them to California. We conclude that the postjudgment modification cases cited by the defendant are inapplicable to the present case.

The defendant also argues that a trial court may not allow a parent to relocate a minor child to a distant place when it also awards joint physical custody of the child to both parents. In the dissolution decree, the court ordered "joint custody of the children [Adam, Cooper and Morgan,] who shall reside primarily with the plaintiff mother, who may remove the children to the San Diego area of California to live." The defendant contends that the court's determination that the plaintiff may move the children to California is inconsistent with General Statutes § 46b-56a(a), which provides: "For the purposes of this section, 'joint custody' means an order awarding legal custody of the minor child to both parents, providing for joint decision-making by the parents and providing that physical custody shall be shared by the parents in such a way as to assure the child of continuing contact with both parents." The defendant maintains that the court's determination to award joint custody necessarily implied under § 46b-56a(a) that he maintain joint physical custody of the children, and that the court's relocation determination is legally erroneous in view of the statute's requirement "that physical custody shall be shared by the parents in such a way as to assure the child of continuing contact with both parents." General Statutes § 46b-56a(a).

Section 46b-56a(a) also provides, however, that "[t]he court may award joint legal custody without awarding joint physical custody where the parents have agreed to merely joint legal custody." The plaintiff in her proposed orders had requested that "[t]he parties shall have joint custody of their three minor children with the children to reside primarily with mother; that mother be allowed to remove the children with her to her proposed residence in California." Her proposed orders clearly implied that she agreed to joint legal custody, but not to joint physical custody. The defendant had proposed that "[t]he plaintiff and defendant should have joint legal and [physical] custody of the minor children." His proposal clearly implied that he sought joint physical custody only on the condition that the plaintiff and children remain in the general vicinity of Avon. "The defendant will continue to reside in the family home located ... [in] Avon, Connecticut. Hopefully, the plaintiff will take up residence in a location which will permit the parties to share physical custody of the children on a more or less equal basis."

Both parents agreed upon joint legal custody, but they disagreed about whether the defendant should have joint physical custody. Under these circumstances, § 46b-56a(a) permits a court to award joint legal custody, but to award physical custody to one parent. The term "joint custody" used in the judgment in the present case implies that the court awarded joint legal custody, but its specific provisions concerning removal of the children by the plaintiff and visitation by the defendant make it clear that primary physical custody has been awarded to the plaintiff. We hold that a court under § 46b-56a(a) may award joint legal custody, when both parents agree, but at the same time deny joint physical custody, when both parents have not agreed to such an award, provided that the court finds that such an award is appropriate under § 46b-56a(b). 2


The defendant also claims that the trial court abused its discretion in permitting the plaintiff to move the children to California. He contends that this decision was clearly erroneous in view of the fact that, when each of the children was asked whether he wished to move to California, each replied that he wanted to remain in Avon. The counsel appointed by the court to represent the children believed that they should stay in Connecticut. The trial court found, however, that the defendant had coerced the children into opposing a move to California by convincing them "that they were going to lose their father." In light of this finding, the court did not abuse its discretion by refusing to accept as dispositive the testimony of children of five, seven and nine years of age. Nor was the court bound by the opinion of the children's counsel, despite the valuable function served by such counsel in custody hearings.

The defendant also contends that the trial court abused its discretion by relying upon the opinions of Walter Borden, a psychiatrist who was the custody evaluator chosen by both parents, and of Lawrence Beaudry, a family relations officer. He points out that the opinion of Borden was based primarily on information collected about one year before the court ruled and that the...

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