Clougherty v. Clougherty

• Decision Date: 06 September 2011
• Docket Number: No. 31720.,31720.
• Citation: 131 Conn.App. 270,26 A.3d 704
• Court: Connecticut Court of Appeals
• Parties: Leticia CLOUGHERTYv.Kevin CLOUGHERTY.

131 Conn.App. 270

26 A.3d 704

Leticia CLOUGHERTY

v.Kevin CLOUGHERTY.

No. 31720.

Appellate Court of Connecticut.

Argued June 1, 2011.Decided Sept. 6, 2011.

William F. Gallagher, New Haven, for the appellant (defendant).Kenneth J. McDonnell, Essex, for the appellee (plaintiff).Maureen M. Murphy, New Haven, for the minor child.DiPENTIMA, C.J., and LAVINE and BEAR, Js.DiPENTIMA, C.J.

“The plain error doctrine ... is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice....” (Internal quotation marks omitted.) Perricone v. Perricone, 292 Conn. 187, 218, 972 A.2d 666 (2009). In this appeal from the judgment dissolving the parties' marriage, the defendant, Kevin Clougherty, seeks plain error review of his claim that the trial court improperly relied on certain evidence in authorizing the plaintiff, Leticia Clougherty, to move to Texas with the parties' minor child. We conclude that the defendant's claim does not present the type of extraordinary situation that warrants application of this doctrine and, accordingly, affirm the judgment of the trial court.

The record reveals the following relevant facts. On May 10, 2003, the plaintiff and the defendant were married. A son, born on September 21, 2006, is issue of their marriage. On July 14, 2008, the plaintiff filed a complaint seeking a dissolution of her marriage to the defendant and joint legal custody of the parties' minor child. The defendant filed an answer and cross complaint seeking the same relief. Following a trial, the court orally rendered a judgment of dissolution finding that the parties' marriage had broken down irretrievably.

The court also awarded the parties joint legal custody and shared physical custody of their child. In doing so, the court observed that living in Connecticut had made the plaintiff physically and emotionally ill because her life was completely integrated in Texas, where she enjoyed “a rich and wonderful life.” The court found that the plaintiff lacked a job or any significant ties in Connecticut, and had not thrived living away from her family of origin and the family business, which provided her with the identity that she needed. In discussing where the child primarily would reside, the court determined that the plaintiff was “doing a little bit better of a job as a parent” than the defendant at that time but not in any great qualitative sense. The court expressed concern over the child's “failure to thrive” during the disintegration of the parties' relationship. The court also observed that the child had a close relationship with the plaintiff's large, extended family in Texas, which resulted in his experiencing a richer and more vivacious life there than in Connecticut. The court, therefore, concluded that it was in the child's best interest to allow the plaintiff to return to Texas with the child. Accordingly, the court ordered the parties to maintain two residences for the child, one in Texas with the plaintiff and the other in Connecticut with the defendant, and it set forth a visitation schedule for the defendant.

Thereafter, the defendant filed (1) a motion seeking to have a supplemental examination of the plaintiff and her family in Texas, (2) a motion to clarify the judgment with respect to various terms of the visitation schedule and (3) a motion to open the judgment. The court denied all of these motions, and this appeal followed.

On appeal, the defendant claims that the court improperly based its order allowing the plaintiff and their child to move to Texas on certain testimony by the guardian ad litem that she was not qualified to provide. Specifically, the defendant claims that the guardian ad litem was not qualified to opine that (1) the child suffered from failure to thrive and (2) the defendant was too attached to the child to act in the child's best interest. The defendant concedes that during the trial he failed to raise an objection to the testimony at issue and urges that review of his claim is required under the plain error doctrine. We disagree that plain error review is warranted.

Codified in Practice Book § 60–5,¹ “[t]he plain error doctrine ... is not ... a rule of reviewability. It is a rule of reversibility.” (Internal quotation marks omitted.) State v. Myers, 290 Conn. 278, 289, 963 A.2d 11 (2009). It is a doctrine that should be invoked sparingly and only on “occasions requiring the reversal of the judgment under review.” (Internal quotation marks omitted.) Id. “Success on such a claim is rare. Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Ortiz, 71 Conn.App. 865, 871, 804 A.2d 937, cert. denied, 261 Conn. 942, 808 A.2d 1136 (2002).

We engage in a two step analysis in reviewing claims of plain error. “First, we must...