Madigan v. Madigan

• Decision Date: 02 March 1993
• Docket Number: No. 14574,14574
• Citation: 620 A.2d 1276,224 Conn. 749
• Court: Connecticut Supreme Court
• Parties: Michael J. MADIGAN v. Michelle A. MADIGAN.

Page 1276

620 A.2d 1276

224 Conn. 749

Michael J. MADIGAN v. Michelle A. MADIGAN.

No. 14574.

Supreme Court of Connecticut.

Argued Dec. 1, 1992.

Decided March 2, 1993.

Louis Kiefer, Hartford, for appellant (plaintiff).

Emily J. Moskowitz, West Hartford, with whom was Robert J. Kor, Hartford, for appellee (defendant).

Gaetano Ferro, New Canaan, filed a brief for the American Academy of Matrimonial Lawyers as amicus curiae.

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and KATZ, JJ.

PETERS, Chief Justice.

The only issue in this appeal is whether a temporary custody order entered in the course of dissolution proceedings is a final judgment for the purpose of appellate review. The plaintiff, Michael J. Madigan, brought a dissolution action pursuant to General Statutes § 46b-45 ¹ to terminate his marriage to the defendant, Michelle A. Madigan. Pending a trial on the merits, the trial court entered an order pursuant to General Statutes § 46b-56 ² for temporary custody and visitation of two of the parties' three minor children. ³ The plaintiff appealed the order to the Appellate Court which, sua sponte, dismissed the appeal on the ground that it was not from a final judgment. We granted the plaintiff's petition for certification to review this issue, ⁴ and now reverse the Appellate Court's dismissal of his appeal.

The trial court's memorandum of decision accompanying the temporary order and the record reveal the following. The parties were married on December 17, 1988. The plaintiff filed a dissolution action on August 27, 1991, alleging extreme cruelty, adultery and irretrievable marital breakdown. The defendant filed a cross complaint for dissolution, also alleging extreme cruelty, as well as nonsupport of the parties' children, physical and psychological abuse, and the irretrievable breakdown of the marriage. See General Statutes § 46b-40.

Both parties moved the trial court to enter temporary orders for custody and visitation. ⁵ The plaintiff asked the court to order joint custody, with each parent having the children for alternating three day periods, while the defendant asked for sole custody, with visitation rights for the plaintiff. After a hearing at which the parties testified concerning their views on custody of the children, the trial court ordered joint custody of the two children, their primary residence to be with the defendant, as well as a visitation schedule designed to match an existing schedule that the Probate Court had established regarding the third, oldest, child. See footnote 3.

The plaintiff appealed from the trial court's order of temporary custody, as well as the court's denial of two earlier pretrial motions. ⁶ The Appellate Court dismissed the appeal for lack of a final judgment. We granted the plaintiff permission to appeal the issue of the finality of the temporary custody order.

The immediate appealability of temporary custody orders entered in the course of dissolution actions must be determined in accordance with established jurisdictional principles. With the exception of certain statutory rights of appeal that are not relevant here, appellate jurisdiction is limited to appeals from final judgments. See General Statutes §§ 51-197a, 51-199 and 52-263; see also Practice Book § 4000. Interlocutory appeals must, therefore, be dismissed. See, e.g., Melia v. Hartford Fire Ins. Co., 202 Conn. 252, 254, 520 A.2d 605 (1987). Limiting appeals to judgments that are final serves the important public policy of minimizing interference with and delay in the resolution of trial court proceedings. See id., at 258, 520 A.2d 605; E.J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 626, 356 A.2d 893 (1975).

Although the rule requiring an appealable order to be final is well settled, it is difficult to devise a comprehensive definition of what constitutes a final judgment. "It is apparent that there are certain judgments which are undoubtedly final and others that are clearly interlocutory and not appealable. The problem, of course, arises in the gray area between these obvious certainties...." E.J. Hansen Elevator Inc. v. Stoll, supra, at 627, 356 A.2d 893. To evaluate those orders that lie in the "gray area," we have in recent years relied on the standard articulated in State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983). That standard permits the immediate appealability of an order "in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them." Id., at 31, 463 A.2d 566; Success Centers, Inc. v. Huntington Learning Centers, Inc., 223 Conn. 761, 769, 613 A.2d 1320 (1992).

Applying the Curcio standard and its antecedents, we have allowed the immediate appeal of arguably interlocutory orders in a variety of circumstances. See, e.g., Solomon v. Keiser, 212 Conn. 741, 747-48, 562 A.2d 524 (1989) (order opening a judgment if issue raised is power of trial court to open the judgment); Kerite Co. v. Alpha Employment Agency, Inc., 166 Conn. 432, 438, 352 A.2d 288 (1974) (order to interplead); Hiss v. Hiss, 135 Conn. 333, 336, 64 A.2d 173 (1949) (order for temporary alimony and support); Wardell v. Killingly, 96 Conn. 718, 722, 115 A. 539 (1921) (order denying mandamus). We have, however, denied the immediate appealability of other orders in civil cases, despite their serious consequences for the litigants. See, e.g., Burger & Burger, Inc. v. Murren, 202 Conn. 660, 667, 522 A.2d 812 (1987) (disqualification of attorney); Melia v. Hartford Fire Ins. Co., supra, 202 Conn. at 254-59, 520 A.2d 605 (discovery orders); see also State v. Parker, 194 Conn. 650, 656-58, 485 A.2d 139 (1984) (denial of motion to dismiss charges pursuant to then existing accelerated rehabilitation statute not immediately appealable, because, even if a defendant had a right to dismissal before trial, the right to dismissal could be vindicated on appeal after trial).

The defendant contends that we have already decided, in Hall v. Hall, 186 Conn. 118, 439 A.2d 447 (1982), that a temporary order of custody is not immediately appealable. We disagree. In Hall, the parties appealed after a final judgment of dissolution. Declining to review the propriety of the trial court's modification of its temporary custody award by the final decree, we held that the only issue then before us was whether the trial court had abused its discretion "in deciding which parent was the better custodian at the time of the final decree dissolving the marriage." Id., at 123, 439 A.2d 447. Our decision in Hall did not purport to address the appealability of the temporary order. To the extent that Hall has any bearing on the present case, it furnishes support for the position of the plaintiff. Because Hall precludes appellate review of the merits of a temporary custody order in any appeal from the final dissolution decree, it suggests that the temporary order satisfies the second Curcio test as an order that "so concludes the rights of the parties that further proceedings cannot affect them." State v. Curcio, supra, 191 Conn. at 31, 463 A.2d 566.

Hall furnishes persuasive authority, therefore, for the conclusion that a temporary order of custody is a final judgment for the purpose of an immediate appeal because a parent's custodial rights during the course of dissolution proceedings cannot otherwise be vindicated at any time, in any forum. ⁷ In this respect, orders relating to temporary custody closely resemble temporary orders for alimony and support, which we have held, in Hiss v. Hiss, supra, 135 Conn. at 336, 64 A.2d 173, to be immediately appealable. Our reason for considering temporary orders of alimony and support to be "final" was that, once paid by one spouse to another, such sums could not subsequently be recovered on appeal from the final dissolution judgment. ⁸ Id. This reasoning applies with equal force to temporary custody orders that affect the irreplaceable time and relationship shared between parent and child. It would be anomalous, therefore, to permit the appealability of otherwise nonreviewable orders relating to financial matters and to deny the appealability of orders relating to the personal interaction between a parent and a child.

The defendant maintains, however, that temporary custody orders should not be considered final because interlocutory appeals would interfere greatly with the orderly determination of dissolution actions and would disserve the goal of providing stability for children during the course of the litigation. Regarding the maintenance of dissolution actions, the defendant argues first that a right to immediate appeal of temporary orders of custody will disrupt and delay these actions. The defendant points out that, as an alternative to the resulting delay caused by an immediate appeal, a disappointed parent can seek a change in custody through judicial modification. See General Statutes § 46b-56. Second, she maintains that a conclusion that temporary custody orders are final judgments that may be appealed will sanction appeals of every interlocutory order in a dissolution action. The consequent delays in the proceedings, she asserts, will burden both the courts and the parties. The defendant also emphasizes the importance of ensuring a stable and secure environment for children affected by the pendency of a dissolution proceeding. Such children are at psychological risk when their parents' pending divorce results in an emotionally precarious and unstable domestic environment. See Yontef v. Yontef, 185 Conn. 275, 293, 440 A.2d 899 (1981). The defendant maintains that allowing appeals of the trial court's temporary orders, otherwise "permanent" until the finalization of the dissolution, may make more tumultuous an already stressful event in the lives of children.

The plaintiff, to the contrary, urges this court to recognize the importance...