Brubeck v. Burns-Brubeck
| Decision Date | 13 August 1996 |
| Docket Number | No. 14919,BURNS-BRUBECK,14919 |
| Citation | 680 A.2d 327,42 Conn.App. 583 |
| Court | Connecticut Court of Appeals |
| Parties | Christopher BRUBECK v. Noreen |
Samuel J. Albom, Norwalk, for appellant (defendant).
Ellen B. Wells, with whom was Samuel V. Schoonmaker, IV, Stamford, for appellee (plaintiff).
Cordalie Benoit, Danbury, for minor child.
Before DUPONT, C.J., and LANDAU and FRANCIS X. HENNESSEY, JJ.
The defendant, Noreen Burns-Brubeck, appeals from the trial court's judgment denying her motion to modify custody and visitation. The defendant claims that the trial court (1) improperly failed to reinstate joint custody to her after the abatement of her disability, (2) violated the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and (3) violated the supremacy clause of article VI and the equal protection clause of the fourteenth amendment of the constitution of the United States.
The trial court found the following facts. In 1984, the trial court dissolved the marriage of the defendant and the plaintiff, Christopher Brubeck. Pursuant to an agreement of the parties, the trial court granted joint legal custody of their minor child with the residence of the child to be with the defendant. In 1988, in response to the plaintiff's ex-parte application, the court granted temporary sole custody of the child to the plaintiff. In 1990, after a full hearing on the plaintiff's motion to modify custody and visitation, the trial court granted the plaintiff sole custody of the child and the defendant visitation rights. In 1992, the defendant filed a motion to modify the orders rendered by the trial court in 1990. After a contested hearing, the court denied the defendant's motion to modify, and it is from that denial that the defendant appeals.
The defendant first claims that the trial court improperly failed to order joint custody of the minor child. The following facts are necessary for the resolution of this issue. Subsequent to the dissolution of the marriage, the defendant became afflicted with the disease of alcoholism. While the defendant sought treatment, the plaintiff became the sole custodian of the child pursuant to the court orders rendered in 1988 and 1990. After completing her treatment, the defendant moved the trial court to restore her as a joint custodian of the child.
The authority to render orders of custody and visitation are found in General Statutes § 46b-56, which provides in part: Before a trial court may modify a custody order, it must find that there has been a material change in circumstance since the prior order of the court, but the ultimate test is the best interests of the child. Stewart v. Stewart, 177 Conn. 401, 407-408, 418 A.2d 62 (1979).
The defendant claims that the only relevant change in circumstance that existed in the prior modification orders was that the defendant became disabled. She claims that because she recovered from that disability, the trial court should have reinstated joint custody.
A review of the trial court's 1990 memorandum of decision granting custody to the plaintiff does not support the claim that the sole reason for the trial court's decision was the defendant's disability. The trial court did not reach its custody decision based on the defendant's alcoholism or on the defendant's clinical depression, although it found that the defendant's actions resulting from these conditions contributed to disruption in the child's life. After reviewing the reports and the testimony, the trial court concluded that the child had adapted well to living with his father and his "intelligent and caring" stepmother. The court further found that the plaintiff was the more stable parent and that it was in the best interests of the child that the plaintiff have sole custody.
In support of the present motion for joint custody, the defendant argued that she had met all the requirements set down by the court after the 1990 custody hearing and that she had maintained sobriety. The defendant further argued that the plaintiff, because of changes in his work schedule, could not spend sufficient time with the child. This change of schedule, it is claimed, is a substantial change of circumstance. The trial court recognized that the defendant has made great strides in putting her life in order and that the relationship between the plaintiff and the defendant has improved. The trial court noted that as a result, the plaintiff has allowed the defendant more visitation with the child than the trial court had ordered in 1990. The trial court did not consider the additional visitation allowed by the plaintiff as a change in circumstance that would lead to a change in custody, but rather a positive act that is in the best interests of the child. The trial court found that both the plaintiff and the defendant were good and loving parents, but that the defendant's actions since the trial court's 1990 order have been mainly responsible for the on-going litigation. The court concluded that the plaintiff had provided the necessary care and love for the child. It also concluded that the defendant had failed to establish either a substantial change in circumstances or that it would be in the best interests of the child to modify the existing custody arrangement.
The sole question is whether the trial court abused its discretion in deciding that the best interests of the child would be served by allowing custody to remain with the plaintiff. ...
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...be available where a new and unforeseen constitutional right has arisen between the trial and the appeal. See Brubeck v. Burns-Brubeck, 42 Conn.App. 583, 588, 680 A.2d 327 (1996). None of these situations for plain error review is present in this Plain error review may be appropriate when a......
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