Dolan v. Dolan

• Decision Date: 29 March 2022
• Docket Number: AC 43674
• Parties: Christina DOLAN v. Russell J. DOLAN
• Court: Connecticut Court of Appeals

211 Conn.App. 390

272 A.3d 768

Christina DOLAN

v.Russell J. DOLAN

AC 43674

Appellate Court of Connecticut.

Argued February 3, 2022

Officially released March 29, 2022

David V. DeRosa, Naugatuck, for the appellant (defendant).

Brandy N. Thomas, with whom, on the brief, was Jennifer Shukla, for the appellee (plaintiff).

Alvord, Alexander and Vertefeuille, Js.

ALVORD, J.

In this dissolution matter, the defendant, Russell J. Dolan, appeals from the judgment of the trial court granting two postjudgment motions filed by the plaintiff, Christina Dolan. On appeal, the defendant claims that the court improperly granted the plaintiff's (1) motion for modification and (2) motion for appellate attorney's fees. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. The parties were married in 2008 and have one minor child together. In 2017, the plaintiff commenced a dissolution action against the defendant. On January 23, 2018, the trial court, Miller, J. , rendered a judgment of dissolution, which incorporated a January 22, 2018 separation agreement executed by the parties (agreement). At the time of the dissolution, the plaintiff lived in West Hartford, and the defendant lived in Andover, Massachusetts. Pursuant to Section III of the agreement, the parties agreed that the plaintiff would relocate, following the completion of the 2018-2019 academic year, "to a location such that [the plaintiff] is living approximately but not farther than one (1) hour from her place of employment in Hartford, Connecticut and shall include the Greater Worcester Area and suburbs such as Westborough, Massachusetts." The defendant agreed to "make efforts to explore relocation to an area in Massachusetts such that the parties are within thirty (30) minutes of each other." The parties were to "communicate with each other regarding their respective residences by May 1, 2019."

From the date of the dissolution judgment through the contemplated 2019 relocation, the parties agreed that the defendant would have parenting time on certain dates, generally consisting of two or three weekends per month during the school year. For summer, 2018, the parties agreed to shared parenting time according to a two week on/two week off schedule. The parties agreed that, commencing upon the contemplated 2019 relocation, the parties would share a "5, 2, 2, 5" schedule, as follows: "The parties shall share weekday time such that one parent shall have parenting responsibility every Monday and Tuesday, and the other parent shall have parenting responsibility every Wednesday and Thursday, and the parties shall alternate weekend parenting time from after school, or at an agreed upon time, through Monday morning returning to school. The parties shall cooperate to determine which weekday blocks each parent shall have based on [the plaintiff's] work schedule such that she shall have the weekday blocks wherein she is working remotely, if remote work [is] available to her." For summer, 2019, the parties agreed that the regular access schedule was to prevail, except with respect to vacations, set forth in a separate provision of the agreement. The parties were to make every effort to agree on the location of the minor child's school.¹ If the parties were unable to reach a schooling agreement, a decision was to be made by the court.

In the event that the defendant did not relocate to an area near the plaintiff's relocated residence, the parties agreed that "the parenting plan shall be reviewed to adjust parenting time and the access schedule so as to maintain liberal parenting time for both parents, but to minimize the amount of travel required for the child during the week." The court would "retain jurisdiction to determine an appropriate shared parenting schedule pursuant thereto, in the event the parties are unable to agree." The agreement "contemplated that [the defendant] will exercise more parenting time than [the plaintiff] during non-school periods to make up for less time during school periods." In the event the parties were unable to reach an agreement as to a shared parenting schedule, a decision was to be made by the court.

On April 30, 2019, the plaintiff filed a motion for modification. Therein, she alleged, inter alia, that "[s]ince the entry of judgment, there has been a change in circumstances such that a relocation of the minor child from his current location of residence, school district and community is no longer in his best interests," and that the plaintiff's "employment circumstances have changed such that she will no longer be able to relocate and maintain her employment." The plaintiff requested that she and the minor child be permitted to remain residing in West Hartford and sought a parenting access plan that was in the best interests of the child.

On July 29, 2019, the court held a hearing on the plaintiff's motion for modification along with other motions filed by the parties, including the plaintiff's motion for contempt, and the defendant's motions for order, modification of custody, and contempt. On October 30, 2019, the court issued its memorandum of decision on all pending motions. Foundationally, the court found the plaintiff "more willing to compromise, especially when it relates to their son's well-being," and also made an overall finding that the plaintiff was more credible than the defendant. The court found "that much of the [defendant's] testimony was self-serving and an attempt to obfuscate his manipulation of the [plaintiff] regarding financial matters and the parenting schedule." The court first considered the plaintiff's motion for contempt. The court found the defendant in contempt for violating the provision of the agreement prohibiting demeaning, denigrating, or otherwise maligning language toward the other parent, on the basis of evidence of his verbal abuse toward the plaintiff in the form of tirades in which he referred to her as "trash" and "scumbag trash." The court found that the defendant had "no self-awareness or insight that his behavior toward the plaintiff was uncivil, demeaning, and denigrating."

The court referenced the defendant's "out of line" demands, made during the plaintiff's parenting time, to spend time with the parties’ child during her family vacation in Florida. The court found that the defendant made multiple threats to contact the police in the event that the plaintiff failed to respond to him. The court found that the plaintiff, in an effort to appease the defendant, agreed to permit him to take their child to a zoo, a trip that she had planned to take with her family. The court was concerned by the defendant's "unreasonable demands and anger shown in almost all of his e-mails and texts to the [plaintiff]," and concluded that his "overall lack of civility toward the plaintiff interferes with his coparenting obligations and his ability to act in the best interest of their son." The court also found the defendant in contempt for his failure to contribute $1000 monthly to the mortgage on the former marital home, as required by the agreement.² The court found that the defendant was "intentionally keeping the money from the plaintiff," that his actions were "egregious, and [that] he put her in financial peril."³

With respect to the plaintiff's motion for modification at issue in this appeal, the court found that "the plaintiff's employment circumstances have changed substantially and she can no longer relocate to Massachusetts and maintain her employment as the parties originally intended." The court credited the plaintiff's testimony regarding her work circumstances, including the promotion she obtained through her employer following the entry of the dissolution judgment. Although she was able to work remotely in her prior position, her new position did not permit remote work on a routine basis.⁴ The court found that the plaintiff's new position constituted "a substantial improvement based on her increased salary and potential career growth." The court credited the plaintiff's testimony that "if she looked for work in the health care industry in Massachusetts to be closer to the defendant, she would have to start at the bottom and would not earn enough money to maintain the standard of living that she and her son enjoy in Connecticut." Acknowledging the defendant's argument that accepting the promotion was not mandatory for the plaintiff, the court found the promotion to be a "legitimate stepping stone in the [plaintiff's] career" and "a significant opportunity for her." The court found it to be both in the plaintiff's and the child's best interests for the plaintiff to accept the promotion to be better able to provide financially for her and the minor child.

The court further found that "maintaining [the plaintiff's] financial independence is critical to her financial stability and her stability is in the best interest of the child," and that the defendant had "put the [plaintiff] in a vulnerable financial position" when he wilfully failed to contribute $1000 monthly to the mortgage payment on the former marital home as required by the agreement. The court previously had found that the defendant "intentionally" kept the money from the plaintiff,⁵ forcing her to file a motion for contempt to address his failure to pay his court-ordered portion of the mortgage. The court found that the defendant's failure to fulfill his fiscal obligation was egregious and put the plaintiff in financial peril.

In addition to the financial considerations set forth by the court, the court found that it was in the child's best interests to continue residing primarily with the plaintiff in the Hartford area. The court credited evidence that the child was doing well under the current parenting plan, and noted that it had heard testimony regarding the child's academic progress, friendships, after-school childcare, sports, and...