Mckechnie v. Mckechnie, 31498.

CourtAppellate Court of Connecticut
Citation130 Conn.App. 411,23 A.3d 779
Decision Date26 July 2011
Docket NumberNo. 31498.,31498.
PartiesBarbara McKECHNIEv.Dennis McKECHNIE.

OPINION TEXT STARTS HERE

Samuel V. Schoonmaker IV, with whom, on the brief, was Wendy Dunne DiChristina, for the appellant (plaintiff).Charles D. Ray, with whom was Matthew A. Weiner, Hartford, for the appellee (defendant).DiPENTIMA, C.J., and ESPINOSA and WEST, Js.DiPENTIMA, C.J.

In this marital dissolution appeal, the plaintiff, Barbara McKechnie, challenges the order of the trial court awarding sole legal custody 1 of the two minor children to the defendant, Dennis McKechnie. On appeal, the plaintiff argues that (1) the court improperly applied General Statutes § 46b–56 (c)(12), (2) § 46b–56 (c)(12) is unconstitutionally vague and (3) the court abused its discretion in awarding sole legal custody to the defendant. We are not persuaded and, accordingly, affirm the judgment of the trial court.

The following procedural history and facts set forth by the trial court in its oral decision are relevant to this appeal. On October 5, 2006, the plaintiff commenced this dissolution action. In both the complaint and the defendant's cross complaint, each party requested joint legal custody 2 of the minor children. On August 3, 2007, the defendant moved to modify the pendente lite custody and parenting plan and sought sole legal custody of the minor children. In her proposed orders, the plaintiff again sought joint legal custody. Both the defendant and Bonnie L. Amendola, the attorney for the minor children, requested that the court award sole legal custody to the defendant.3 Following a trial, the court rendered judgment dissolving the marriage on June 23, 2009.

After noting that it had reviewed and applied the relevant statutory criteria, the court dissolved the marriage of the parties and awarded sole legal custody of the minor children to the defendant. The court further ordered that the children were to reside primarily with the defendant and that he was to seek the plaintiff's input and opinion on all substantial nonemergency issues relating to the minor children. After receiving such input within forty-eight hours, the defendant was to make the decision that he believed to be in the best interests of the children.

The court explicitly discussed the statutory criteria of § 46b–56 (c)(12), which provides: “In making or modifying any order as provided in subsections (a) and (b) of this section, the court shall consider the best interests of the child, and in doing so may consider, but shall not be limited to ... the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child....” The court stated: “I want to be perfectly clear about [§ 46b–56 (c)(12) ], about the mental and physical health of all individuals, except that the disability shall in and of itself not be determinative of custody. It's not. First of all, I don't know what disability there is or isn't. We've been banting those words about, but I don't have very good evidence about any of this. So all I can do is observe the behavior.

“And it is not—let's assume for a moment it is a disability. It is not the disability in and of itself. I'm not finding against [the plaintiff] in terms of her particular wishes or plan because she is bipolar or because she has a thought disorder [such as attention deficit hyperactivity disorder].”

The plaintiff appealed and subsequently filed a motion for articulation on May 6, 2010. She sought an articulation of the following issues: (1) whether the court applied the civil preponderance of the evidence standard when it determined that sole legal custody was in the best interests of the minor children; (2) whether the court found by a preponderance of the evidence that sole legal custody was in the best interests of the minor children; (3) whether the court found that the plaintiff has a disability, including, but not limited to, attention deficit hyperactivity disorder; and (4) whether the court considered accommodations, if any, that enabled the plaintiff to participate in and benefit from the court proceedings and participate in legal custody of the minor children. On May 17, 2010, the court answered in the affirmative to the first two issues set forth in the motion for articulation, and denied the motion with respect to the latter two. The plaintiff, pursuant to Practice Book § 66–6, filed a motion for review with this court. On July 28, 2010, the plaintiff's motion for review was granted, but the relief requested was denied.

I

The plaintiff first claims that the court improperly applied § 46b–56 (c)(12). Specifically, she argues that once the court considered her mental health as a factor in determining which party would be awarded legal custody of the minor children, it was required to consider whether accommodations for her disability would have enabled her to retain custody. The defendant responds, inter alia, that we should decline to review this claim because it was not raised before the trial court. We agree with the defendant.

“It is well established that an appellate court is under no obligation to consider a claim that is not distinctly raised at the trial level. Practice Book § 60–5; Yale University v. Blumenthal, 225 Conn. 32, 36 n. 4, 621 A.2d 1304 (1993) (issue not reviewed because not raised at trial). This court will review claims not raised at trial only in extraordinary circumstances. See Williamson v. Commissioner of Transportation, 209 Conn. 310, 317, 551 A.2d 704 (1988).... [See also] Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 444 n. 10, 685 A.2d 670 (1996) (claims neither addressed nor decided by court below are not properly before appellate tribunal); State v. Miller, 186 Conn. 654, 658, 443 A.2d 906 (1982) ( [o]nly in the most exceptional circumstances will this court consider even a constitutional claim not properly raised and decided in the trial court).” (Citation omitted; internal quotation marks omitted.) W. v. W., 248 Conn. 487, 505–506, 728 A.2d 1076 (1999).

We have reviewed the transcript and are unable to find any references regarding the issue of accommodations. As we frequently have stated, [f]or this court to ... consider [a] claim on the basis of a specific legal ground not raised during trial would amount to trial by ambuscade, unfair both to the [court] and to the opposing party....” (Internal quotation marks omitted.) Adamo v. Adamo, 123 Conn.App. 38, 46–47, 1 A.3d 221, cert. denied, 298 Conn. 916, 4 A.3d 830 (2010); see also Noonan v. Noonan, 122 Conn.App. 184, 190, 998 A.2d 231, cert. denied, 298 Conn. 928, 5 A.3d 490 2010); Corrarino v. Corrarino, 121 Conn.App. 22, 30, 993 A.2d 486 (2010). Additionally, we note that in Logan v. Logan, 96 Conn.App. 842, 845–46, 902 A.2d 666 (2006), we declined to review a party's claim raised for the first time on appeal that the trial court improperly failed to provide him with accommodations according to the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., during court proceedings. Accordingly, we decline to review this claim.

II

The plaintiff next claims that § 46b–56 (c)(12) is unconstitutionally vague. Specifically, she argues that unless the term “disability” is read in accordance with the definition set forth by federal law in the ADA; 4 see 42 U.S.C. § 12102(1),5 then § 46b–56 (c)(12) is vague and impossible to apply. The defendant argues, inter alia, that § 46b–56 (c)(12) provides the required notice because it contains a core meaning. We agree.

At the outset, we note that this claim was not raised below and that the plaintiff seeks review pursuant to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989). “Under Golding, a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail.... The first two Golding requirements involve whether the claim is reviewable, and the second two involve whether there was constitutional error requiring a new trial.” (Citation omitted; emphasis added; internal quotation marks omitted.) Ackerman v. Sobol Family Partnership, LLP, 298 Conn. 495, 531, 4 A.3d 288 (2010). We agree that the record is adequate for review and that the plaintiff's claim is of constitutional magnitude. We conclude, however, that the claim fails under the third prong of Golding.

Section 46b–56 (c) directs the court, when making any order regarding the custody, care, education, visitation and support of children, to consider the best interests of the child, and in doing so [the court] may consider, but shall not be limited to, one or more of [sixteen enumerated] factors.... The court is not required to assign any weight to any of the factors that it considers.” 6 (Internal quotation marks omitted.) Lederle v. Spivey, 113 Conn.App. 177, 187, 965 A.2d 621, cert. denied, 291 Conn. 916, 970 A.2d 728 (2009).

We note that the court expressly made no finding of disability and then stated that even if it did, a finding of disability played no part in the court's decision to award sole custody to the defendant as a result of that disability. Despite suggestions in her briefs of an implicit finding of a disability, the plaintiff has not directly challenged the express factual...

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