Hurtado v. Hurtado

• Decision Date: 03 May 1988
• Docket Number: No. 4749,4749
• Citation: 14 Conn.App. 296,541 A.2d 873
• Parties: Victor HURTADO v. Sara M. HURTADO.
• Court: Connecticut Court of Appeals

Page 873

541 A.2d 873

14 Conn.App. 296

Victor HURTADO v. Sara M. HURTADO.

No. 4749.

Appellate Court of Connecticut.

Argued Jan. 14, 1988.

Decided May 3, 1988.

Lorraine W. Osborne, with whom, on the brief, was Brenda A. Mallick, Bridgeport, for appellant-appellee (defendant).

Ernest C. LaFollette, Fairfield, for appellee-appellant (plaintiff).

Before DUPONT, C.J., and BIELUCH and FOTI, JJ.

DUPONT, Chief Judge.

The defendant wife appeals from the judgment rendered in this fully contested dissolution action, challenging the award of custody of the parties' two minor children to the plaintiff husband and the subsequent denial of her request to modify the custody order. The plaintiff cross appeals, challenging the trial court's distribution of the parties' assets.

The court dissolved the parties' marriage and awarded sole custody of their minor children to the plaintiff, with reasonable visitation rights in the defendant. The court did not award periodic alimony to either party, but ordered the defendant to pay support in the amount of $50 per week for each minor child. In dividing the parties' assets upon dissolution, the trial court awarded two residential properties to the defendant, and ordered the defendant to pay to the plaintiff $25,000 for his interest in the real property. The defendant subsequently filed a motion to modify the custody order, alleging a substantial change of circumstances arising from the plaintiff's removal of the minor children from the United States. The trial court denied the defendant's motion to modify on the grounds that the parties' minor children were no longer in this jurisdiction, that any modification order that it might issue would be impossible to enforce, and that the defendant failed to notify the plaintiff of the modification proceedings.

The defendant has raised three claims of error on appeal. She argues that the trial court erred in relying on a family relations study and on the testimony of a family relations officer, both of which incorporated hearsay statements of a psychiatrist, and that she was denied her right to due process of law in that she was hampered in the presentation of her testimony at trial because of her alleged difficulties in speaking the English language. She also claims that the court erred in concluding that custody to the plaintiff was in the best interests of the parties' minor children. In an amended appeal, the defendant claims that the trial court erred in denying her motion to modify the order of custody. The plaintiff, in his cross appeal, argues that the trial court erred in its distribution of the parties' assets by awarding both residential properties, which property constituted the parties' sole real estate, to the defendant while awarding sole custody of the minor children to the plaintiff. We find no error on the appeal, error on the amended appeal, and no error on the cross appeal.

I

We first address the evidentiary issue raised by the defendant that the trial court erred in relying on the testimony of a family relations officer and on a report prepared by him and accepted into evidence, ¹ both of which were based, in part, on the conclusions of a nontestifying psychiatrist. We are unable to review this claim on the merits because it was not properly preserved for appellate review.

The defendant avers in her brief that her counsel properly "objected to any references to testimony about [the psychiatrist's] report and to any reliance by the court on the family relations study which was based on the [psychiatrist's] report." The defendant has neglected, however, to indicate which pages of the transcript reflect such objections. ²

Furthermore, Practice Book § 4185 provides in pertinent part that an appellate court "shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial." At the time that the family relations report was proffered into evidence, the defendant failed to raise distinctly the claim she now makes on appeal and did not perform all of the procedural prerequisites mandated in § 288. ³

The defendant, a native of Ecuador who has lived in the United States for the past twenty years, next claims that she was denied due process of law because of her "language problem." The defendant's specific claim is that although her English is "adequate for normal situations," it "was totally inadequate" for the purpose of a custody trial and, therefore, "she was highly prejudiced by her inability to express herself clearly to the court." The defendant did not request an interpreter at the time of trial, nor did she raise the issue of her language problem at any time during the trial. The defendant, however, requests review of her claim under the doctrine set forth in State v. Evans, 165 Conn 61, 70, 327 A.2d 576 (1973). She argues that she was deprived of a fundamental constitutional right and a fair trial. Implicit in the seeking of such a review is the belief that the Evans doctrine applies to civil cases. Based upon our analysis of State v. Evans, supra, itself and more recent Connecticut cases, we conclude that it does. See Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 716, 535 A.2d 799 (1988); Marsh, Day & Calhoun v. Solomon, 204 Conn. 639, 647-48, 529 A.2d 702 (1987); Mazur v. Blum, 184 Conn. 116, 120 n. 5, 441 A.2d 65 (1981); State v. Evans, supra; ⁴ Page v. Welfare Commissioner, 170 Conn. 258, 267, 365 A.2d 1118 (1976); see also Texaco, Inc. v. Golart, 206 Conn. 454, 460, 538 A.2d 1017 (1988). In this case, however, although the defendant's claim on its face implicates a fundamental constitutional claim, that of due process, the record, when viewed in a limited way, does not support the claim. The defendant has simply characterized her claim as constitutional and it deserves no review. State v. Thurman, 10 Conn.App. 302, 306-307, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987).

The defendant's third claim of error is that the trial court erred in awarding custody to the plaintiff father in contravention of the minor children's best interests. We disagree.

Our standard of review in domestic relations cases is a very narrow one. "We will not reverse a trial court's rulings with regard to custody and financial orders unless the court incorrectly applied the law or could not reasonably have concluded as it did. Timm v. Timm, 195 Conn. 202, 210, 487 A.2d 191 (1985)." O'Neill v. O'Neill, 13 Conn.App. 300, 302, 536 A.2d 978 (1988).

Pursuant to General Statutes § 46b-56(b), in making a determination of custody, the governing standard is the best interests of the child. Yontef v. Yontef, 185 Conn. 275, 282, 440 A.2d 899 (1981). In the present case, our review of the trial court's lengthy and well reasoned memorandum of decision concerning the issue of custody indicates that the trial court correctly applied this standard to the evidence properly before it.

The defendant, however, attempts on appeal effectively to curtail the trial court's discretion by alleging the existence of a presumption in favor of the mother as the proper custodial parent, citing Claffey v. Claffey, 146 Conn. 104, 148 A.2d 140 (1959) and L'Manian v. L'Manian, 14 Conn.Sup. 306 (1946).

Our Supreme Court's decisions in Presutti v. Presutti, 181 Conn. 622, 627-28, 436 A.2d 299 (1980), and Simons v. Simons, 172 Conn. 341, 350, 374 A.2d 1040 (1977), are dispositive of this issue. In those cases, the court "declined to adopt the defendant's assertion that there was a presumption favoring the mother as a custodial parent...." Presutti v. Presutti, supra, 181 Conn. at 627, 436 A.2d 299. "[A]ny such [factor] '[is] merely [an element] in the larger question of what is in the best interests of the child. If the child's best interests ... require for him to be placed in the custody of the father rather than the mother' " then that must be the custodial order. Id., 628, 436 A.2d 299, quoting Simons v. Simons, supra, 172 Conn. at 350, 374 A.2d 1040. Furthermore, we conclude that there is no presumption in favor of the mother or the father as a custodial parent, outside of the parameters of factors indicative of the best interests of the child. "Neither the applicable statutes nor the case law on the subject recognize any presumption in custody matters that the party against whom it operates must bear the burden of rebutting." Presutti v. Presutti, supra, 181 Conn. at 628, 436 A.2d 299. There was ample evidence from which the trial court could have concluded that sole custody to the father was in the minor children's best interests.

II

In her amended appeal, the defendant argues that the trial court erred in denying her motion to modify the original custody order. The defendant's statement in support of her motion to modify averred that approximately ten months after the trial court's judgment dissolving the parties' marriage and awarding sole custody to the plaintiff, the plaintiff removed the parties' two minor children from the United States to somewhere in South America. The defendant contended that the removal of the children from the country constituted a "deleterious and substantial change in circumstances sufficient to justify a modification" of the custody order. The trial court denied the motion to modify because the "children [were] not within the jurisdiction of this court at this time [and because the modification] requested is impossible to enforce. Finally, [the plaintiff] has to be cited before [the] court for [modification]." ⁵ The defendant challenges the court's denial, claiming that (1) the court has jurisdiction under the Uniform Child Custody Jurisdiction Act to determine the merits of the motion to modify, and (2) the plaintiff's conduct in taking the children to South America is grounds for modification of the custody order.

We first address the trial court's ruling that it was without jurisdiction to decide the motion for modification because the...