Brown v. Brown

• Decision Date: 08 November 2011
• Docket Number: AC 32622,AC 32928
• Parties: DENISE E. BROWN v. WILLIAM A. BROWN
• Court: Connecticut Court of Appeals

DENISE E. BROWN

v.WILLIAM A. BROWN

AC 32622

AC 32928

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued September 8

Officially released November 8, 2011

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(Appeal from Superior Court, judicial district of

Stamford-Norwalk, Shay, J.)

Reuben S. Midler, with whom, on the brief, were Wayne D. Effron and Yakov Pyetranker, for the appellant (plaintiff).

Janet A. Battey, with whom were Gaetano Ferro and, on the brief, Livia D. Barndollar, for the appellee (defendant).

Leslie I. Jennings-Lax, with whom, on the brief, was Kenneth B. Rubin, for the minor children.

Opinion

ALVORD, J. The plaintiff-mother, Denise E. Brown, appeals from two separate orders of the trial court regarding modifications to pendente lite visitation orders. In her appeal of the trial court's May 18, 2010 order (first appeal), the mother claims that the court abused its discretion by improperly (1) utilizing a ''future best interests'' standard in awarding increased visitation to the defendant-father, William A. Brown, and (2) making certain findings with respect to the parties' eldest child. In her appeal of the trial court's October 21, 2010 order (second appeal), the mother claims that the trial court abused its discretion by (1) making findings placing blame on her, (2) failing to consider the factors listed in General Statutes § 46b-56 (c), and (3) improperly considering the guardian ad litem as a neutral party, crediting the guardian ad litem's testimony, and following the guardian ad litem's recom-mendation.¹ We dismiss the first appeal as moot. In the second appeal, we affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of the mother's appeals. There have been three appeals from pendente lite orders in this marriage dissolution action, which commenced twenty-four months ago.² Prior to filing the second appeal, the parties had filed more than fifty motions at the trial level, the majority of which dealt with issues concerning access to their children. Since that appeal was filed, they have filed more than fifty additional motions with the trial court. The dissolution action has yet to proceed to a full trial on the merits.

Among its myriad findings, orders and rulings, the trial court issued an order on May 18, 2010, adopting, with some modifications, the parenting plan proposed by the attorney for the minor children. In this order, the court expressed hope that the father could one day reconcile with his eldest daughter, with whom he was not having visitation at that time, and additionally, that there could be a gradual reintroduction of the father into full participation in the lives of his younger daughters. Following the court's order, the mother filed a motion to open the order. The court denied the motion, and the mother appealed that denial. The parenting plan was modified again on June 16, 2010. On October 20, 2010, the parents returned to court for a hearing on the father's amended motion for modification of parenting time. The impetus for the father's motion was the recommendation of the guardian ad litem, Dr. Elizabeth Bergen, that the younger daughters have overnight visitation with him. On October 21, 2010, the trial court modified its prior orders to provide increased visitation to the father in the form of alternate weekend overnights with the two younger daughters. The second appeal followed. Additional facts will be set forth as necessary.

I

In evaluating the mother's appeal of the May 18, 2010 order, we turn to an issue raised by the father, both in his appellate brief and during oral argument, that this first appeal is rendered moot because the trial court issued superseding modification orders on June 16 and October 21, 2010. We agree.

''Mootness implicates [the] court's subject matter jurisdiction and is thus a threshold matter for us to resolve. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. . . . An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot. . . . Because mootness implicates subject matter jurisdiction, it presents a question of law over which our review is plenary.'' (Citation omitted; internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 502, 506-507, 970 A.2d 578 (2009).

As is not unusual in cases of this nature, there have been at least two modifications to the May 18, 2010 order, including the October 21, 2010 order, our second appeal, providing overnight visitation to the father with the two younger daughters. Thus, we are asked to reverse the trial court even though the order in question has been superseded.³ Because there is no actual controversy to resolve regarding the May 18, 2010 order and there is no practical relief that we can grant regarding that order, we dismiss the first appeal as moot.

II

The mother also appeals from the court's October 21, 2010 order that the two younger daughters have alternate weekend overnight visits with the father.⁴ First, she claims that the court abused its discretion by blaming the mother and the father equally for the contentiousness of the divorce and then relying on that finding in making its decision to modify the visitation order. Second, she claims that the court, when determining the best interests of the children, ignored the factors outlined in § 46b-56 (c) including the preferences of the minor children. Finally, she claims that the court abused its discretion by improperly considering the guardian ad litem to be neutral, crediting the guardian ad litem's testimony, and relying on the guardian ad litem's recommendation in modifying the visitation order to include alternate weekend overnights withthe father.

"Our standard of review of a trial court's decision regarding custody, visitation and relocation orders is one of abuse of discretion. . . . It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. . . . Further, [t]he trial court has the opportunity to view the parties first hand and is therefore in the best position to assess the circumstances surrounding a dissolution action, in which such personal factors as the demeanor and attitude of the parties are so significant.'' (Internal quotation marks omitted.) McKechnie v. McKechnie, 130 Conn. App. 411, 421,23 A.3d 779, cert. denied, 302 Conn. 931, A.3d (2011).

''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. . . . Appellate review of a trial court's findings of fact is governed by the clearly erroneous standard of review. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'' (Internal quotation marks omitted.) Krystyna W. v. Janusz W., 127 Conn. App. 586, 590, 14 A.3d 483 (2011).

A

The mother claims that the trial court improperly made a factual finding blaming her for putting pressure on the middle daughter, which led the court to improperly award alternate overnight weekly visits to the father against the best interests of the children. We disagree.

The record does not reveal that the court ever made a finding blaming the mother for pressuring the middle daughter. Instead, the court thoughtfully opined that it was ''not a one-sided situation'' but that it was ''the conflict, the ongoing conflict, unresolved between Mr. and Mrs. Brown that is the problem.'' The court emphasized, to both mother and father, the harmful effects of the ongoing conflict on their daughters: ''So the message to you is, is that it's in your hands how you wish to use this legal power which is awesome. . . . You can have a fight to the death or you can use [your attorneys] to craft something that is fair and to stop this conflict because that conflict is hurting your children . . . .'' The court did not...