Noonan v. Noonan, No. 30729.

• Citation: 998 A.2d 231,122 Conn.App. 184
• Decision Date: 29 June 2010
• Docket Number: No. 30729.
• Court: Appellate Court of Connecticut
• Parties: Maureen NOONANv.Paul NOONAN.

122 Conn.App. 184

998 A.2d 231

Maureen NOONANv.Paul NOONAN.

No. 30729.

Appellate Court of Connecticut.

Argued March 16, 2010.

Decided June 29, 2010.

COPYRIGHT MATERIAL OMITTED

Richard C. Stewart, New Canaan, for the appellant (plaintiff).

David P. Ball, Danbury, for the appellee (defendant).

DiPENTIMA, ROBINSON and FRANCIS X. HENNESSY, Js.^*

DiPENTIMA, J.

In this dissolution of marriage action, the plaintiff, Maureen Noonan, appeals from the judgment of the trial court. On appeal, the plaintiff claims that the court improperly (1) failed to give proper effect to the pendente lite orders concerning her relocation to Farmington with the parties' two minor children, Mackenzie and Devan, (2) failed to apply the provisions of General Statutes § 46b-56d to the issue of the relocation of the children back to Ridgefield, (3) made certain findings that have no reasonable bases in fact so that it rendered its custody and visitation orders without giving proper effect to certain behavior of the defendant, Paul Noonan, and (4) issued punitive financial orders to force the plaintiff to relocate. We affirm the judgment of the trial court.

The court found the following facts. The parties were married on August 21, 1999, in Cooperstown, New York. At the time of the dissolution action, the parties were residing in Ridgefield. They have two minor children, born November 18, 2002, and September 7, 2004. Their second child, Devan, was diagnosed at the age of eighteen months with Velo-Cardio-Facial Syndrome (VCFS), a chromosome abnormality.¹ The parties' marriage has broken down irretrievably.

The defendant holds bachelor of science and juris doctor degrees. He is employed in a management position with General Electric, located in Ossining, New York, and earns $2692 per week. The plaintiff holds a bachelor of arts degree in elementary education and a master's degree in reading from Western Connecticut State University. Before the parties' children were born, she was employed for ten years as an elementary school teacher in the private sector. She is not certified to teach in Connecticut. Since the parties' children were born, the plaintiff has not worked outside the home in any full-time capacity. The plaintiff has worked sporadically part-time, as a tutor and as a cafeteria aide in the school that the children attended in Ridgefield.

The plaintiff filed this dissolution action on April 9, 2007. On May 21, 2007, the court Axelrod, J., granted the plaintiff's motions for custody and exclusive possession and established a comprehensive visitation schedule. ² On April 16, 2008, the defendant filed a motion seeking to enjoin the plaintiff from moving with the children from Ridgefield to Farmington and requested that the court require that the children reside in Ridgefield during the pendency of the action. At that time, the defendant continued to reside in Ridgefield. On May 12, 2008, the court Lavery, J., denied the defendant's motion and ordered that the plaintiff was free to move to the Farmington area, where several members of her family reside. The court found this move to be in the best interests of the children. The plaintiff subsequently moved with the children to Farmington. Starting on December 1, 2008, the plaintiff began work tutoring students, ten hours per week for the Farmington school system, earning $20.03 per hour.

On January 9, 2009, after a trial, the court Calmar, J., rendered judgment dissolving the parties' marriage. The court ordered, among other things, that the parties would have joint legal custody of their children and that, in absence of an agreement between the parties, the final decision-making authority regarding the children would be with the defendant. The court determined that the move to Farmington was not in the children's best interests and that it was necessary for the children to live in the Ridgefield area. The court ordered that “[t]he children shall reside primarily with [the defendant] and [the plaintiff] shall have parenting time every other weekend.... The plaintiff may also elect midweek ... access in Ridgefield upon twenty-four hours notice to the defendant ... provided that the children attend their scheduled activities, complete their homework and are returned to the defendant's residence by 8:00 p.m.” The court further ordered, however, that “[i]f the plaintiff ... resumes residence in the greater Ridgefield area within thirty days of this judgment, the children shall thereafter reside primarily with [the plaintiff] and the defendant ... will have parenting time on alternate weekends.... The defendant ... will have parenting time two afternoons each week with the children from 5:30 until 8:00 p.m., which days will be Tuesday and Thursday, unless the parties agree otherwise in writing [that is] signed by both parents.” The plaintiff appealed from the judgment. Additional facts will be set forth as necessary.

The plaintiff's claims primarily are premised on her assertion that the court abused its discretion in its factual findings regarding the best interests of the children, including custody, relocation and child support matters. Our standard of review regarding custody issues arising within a dissolution of marriage action is well settled. “Our standard of review of a trial court's decision regarding custody, visitation and relocation orders is one of abuse of discretion.... [I]n a dissolution proceeding the trial court's decision on the matter of custody is committed to the exercise of its sound discretion and its decision cannot be overridden unless an abuse of that discretion is clear.... The controlling principle in a determination respecting custody is that the court shall be guided by the best interests of the child.... In determining what is in the best interests of the child, the court is vested with a broad discretion.... [T]he authority to exercise the judicial discretion under the circumstances revealed by the finding is not conferred upon this court, but upon the trial court, and ... we are not privileged to usurp that authority or to substitute ourselves for the trial court.... A mere difference of opinion or judgment cannot justify our intervention. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference....

“The trial court has the opportunity to view the parties first hand and is therefore in the best position to assess the circumstances surrounding a dissolution action, in which such personal factors as the demeanor and attitude of the parties are so significant.... [E]very reasonable presumption should be given in favor of the correctness of [the trial court's] action.... We are limited in our review to determining whether the trial court abused its broad discretion to award custody based upon the best interests of the child as reasonably supported by the evidence.” (Citations omitted; internal quotation marks omitted.) Ford v. Ford, 68 Conn.App. 173, 187-88, 789 A.2d 1104, cert. denied, 260 Conn. 910, 796 A.2d 556 (2002).

General Statutes § 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 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.”

We address each of the plaintiff's claims in turn.

I

The plaintiff first claims that the court improperly failed to give proper effect to the pendente lite orders concerning her relocation with the parties' two minor children. More specifically, she claims that the court abused its discretion by not treating the prior custody orders of the court as res judicata on the issue of whether residing in Ridgefield or Farmington was in the best interests of the children. We decline to review this claim.

A review of the record reveals that the plaintiff did not raise a claim of res judicata regarding the pendente lite custody orders before the trial court. She neither pleaded it as a special defense, nor argued it at trial. “We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant's claim.... [S]ee ... Practice Book § 60-5 (court not bound to consider claim unless it was distinctly raised at the trial).... [T]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge.” (Citations omitted; internal quotation marks omitted.) LaBow v. LaBow, 115 Conn.App. 419, 425-26, 973 A.2d 127 (2009), cert. denied, 295 Conn. 912, 990 A.2d 344 (2010). Further, Practice Book § 10-50 provides in relevant part that “res judicata must be specially pleaded....” “The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed....” (Internal quotation marks omitted.) Martino v. Scalzo, 113 Conn.App. 240, 245, 966 A.2d 339, cert. denied, 293 Conn. 904, 976 A.2d 705 (2009). The plaintiff, therefore, may not raise this argument for the first time on appeal. Accordingly, we decline to review the plaintiff's claim that the court improperly did not treat the pendente lite custody orders as res judicata.

II

Next, the plaintiff claims that the court improperly failed to apply the provisions of § 46b-56d to the issue of the relocation of the children back to Ridgefield. More specifically, she claims that the court acted improperly by neglecting to consider the elements set forth in § 46b-56d in its memorandum of decision.³ We do not agree.

“In 2006, the legislature enacted Public Acts 2006, No....