Presutti v. Presutti

Citation181 Conn. 622,436 A.2d 299
CourtSupreme Court of Connecticut
Decision Date05 August 1980
Parties, 20 A.L.R.4th 665 Anthony PRESUTTI v. Elena PRESUTTI.

James A. Plessinger, Glastonbury, with whom, on the brief, was Denis R. Caron, Glastonbury, for appellant (plaintiff).

Maxwell Heiman, Bristol, with whom, on the brief, were S. Robert Verrillo, Hartford, and William J. Tracy, Jr., Bristol, for appellee (defendant).

Before COTTER, C. J., and BOGDANSKI, PETERS, HEALEY and PARSKEY, JJ.

ARTHUR H. HEALEY, Associate Justice.

This is an appeal from a dissolution decree, rendered by a state referee, in which the defendant mother was given custody of the only child of the marriage, Lena Anne, 1 and the plaintiff father was given the right of reasonable visitation. The practical effect of the custody order was to permit the child to reside in Italy with the defendant. Although other orders were rendered, 2 the appeal by the plaintiff concerns only the trial court's decision on custody and visitation and its order requiring the plaintiff to pay the defendant's counsel fees and cost of preparing the transcript.

The memorandum of decision, read in the light of other undisputed evidence, discloses the following facts: The plaintiff and the defendant were married in Italy on October 3, 1970. Prior to the marriage, the plaintiff, who had been previously married and divorced, had lived in the United States for twenty years, and the defendant had been a life-long resident of Italy. After the marriage, the plaintiff returned to Connecticut and the defendant came here several weeks later. The parties resided in a single family residence in West Hartford. The plaintiff was employed at Royal Business Machines, Inc., prior to and during the marriage and the defendant also obtained employment there after the marriage. The defendant stopped working when she gave birth to her daughter in August, 1974. She did not work outside the home after the child was born. The defendant, who was and is unable to speak or understand English, lived an isolated life in this country. The plaintiff surrounded her with only his friends and family members, who lived a short distance from the parties' home. On March 31, 1977, the defendant, without notice to the plaintiff, left the jointly owned home and flew back to Italy with Lena Anne. The referee made the following unusual but well-substantiated, finding: "Based on the actions of the plaintiff during the hearings, I can understand why the defendant took the child and went back to live with her folks in Italy." In November, 1977, the plaintiff instituted this divorce proceeding seeking a dissolution of the marriage on the ground of irretrievable breakdown, custody of the minor child, an assignment of the defendant's estate pursuant to statute and the return of personal property. 3 The defendant filed a cross complaint seeking a dissolution on the same ground, custody of and support for the minor child, alimony, a conveyance of the plaintiff's one-half interest in the family home and any other appropriate equitable relief. The defendant returned to this country in August, 1978, to be present for the dissolution proceedings, 4 leaving Lena Anne at her parents' home in Italy.

On appeal, the plaintiff's claims of error are directed to essentially two matters: the court's award of custody of Lena Anne and attorney's fees to the defendant.

I

At the outset, the plaintiff claims that a procedural irregularity in the trial court's consideration of the issue of custody was prejudicial to his rights and disserved the best interests of the child, Lena Anne. At the first hearing held in this case the trial court expressed its erroneous opinion that, since the child was outside of this state at the time of the hearing, it had no jurisdiction to determine the issue of custody. At a later hearing the court corrected its earlier ruling and, on the basis of Scott v. Furrow, 141 Conn. 113, 118, 104 A.2d 224 (1954), and Krasnow v. Krasnow, 140 Conn. 254, 259, 99 A.2d 104 (1953), determined the issue of custody. Although the plaintiff claims that this later reversal was prejudicial to himself, he concededly failed to bring to the court's attention its misapprehension of the law at the earlier hearing by way of objection, took no exception to the ruling, and, when later informed that the matter would be considered by the court, he made no motion for a continuance. Both parties proceeded without objection to a full and fair hearing on the matter. 5 Moreover, the plaintiff failed to include this claim in his preliminary statement of issues, as required by our rules of practice. See Practice Book, 1978, § 3012 (a). Under the circumstances, this claim is not properly before us and will not be considered. 6 Practice Book, 1978, § 3063.

The plaintiff makes several arguments to support his claim that the court erred in awarding custody of Lena Anne to the defendant. Because the defendant is not a resident of the United States and, apparently, does not intend to become one, the question raised is one of first impression in this jurisdiction. At the outset of our consideration of the arguments made by the plaintiff, we point out that, as the plaintiff concedes, in 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. See Ridgeway v. Ridgeway, 180 Conn. 533, 541, 429 A.2d 801 (1980); Simons v. Simons, 172 Conn. 341, 348, 374 A.2d 1040 (1977). The controlling principle in a determination respecting custody is that the court shall be guided by the best interests of the child. General Statutes § 46b-56(b); Spicer v. Spicer, 173 Conn. 161, 162, 377 A.2d 259 (1977); Simons v. Simons, supra, 172 Conn. 347, 374 A.2d 1040. In determining what is in the best interests of the child, the court is vested with a broad discretion. Ridgeway v. Ridgeway, supra; Kearney v. State, 174 Conn. 244, 252, 386 A.2d 223 (1978); Palmieri v. Palmieri, 171 Conn. 289, 290, 370 A.2d 926 (1976). " '(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.' " Kearney v. State, supra, 174 Conn. 252, 386 A.2d 227 quoting Morrill v. Morrill, 83 Conn. 479, 491, 77 A. 1 (1910). Upon this background of judicial review, we consider the plaintiff's claims.

We address first the plaintiff's assertion that it is to be presumed that the child's best interests will be promoted by her remaining in this country and that the burden of proving otherwise rests upon the nonresident parent seeking custody. The plaintiff claims that the court failed to place this burden upon the defendant and that, in any event, the defendant failed to sustain her burden of proof on this issue. Although the plaintiff cites some authority for the proposition that he urges us to adopt; see annot., 15 A.L.R.2d 432, 463 § 9 and cases there cited; we are not persuaded that this is a proper approach to custody matters. See Morrill v. Morrill, 83 Conn. 479, 489, 77 A. 1 (1910). In Simons v. Simons, supra, 172 Conn. 350, 374 A.2d 1040, 1044, we declined to adopt the defendant's assertion that there was a presumption favoring the mother as a custodial parent as well as a presumption against modification of a custody order. We there said that any such factors "are merely elements in the larger question of what is in the best interests of the child. If the child's best interests require for him to have a change in custody, it must be made; if they require for him to be placed in the custody of the father rather than the mother, that too must follow." Ibid. 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. The fact that the defendant mother of the child is a nonresident of this country is one factor, and an important one, to be considered in deciding whether it is in the best interests of the child for the court to award custody to the mother. See e. g., Edwards v. Edwards, 191 Or. 275, 227 P.2d 975 (1951).

In support of his argument that the court abused its discretion in awarding custody of Lena Anne to the defendant, the plaintiff points to three major consequences of the court's decision: (1) the court loses effective control over the child; (2) the child is effectively expatriated and loses the right to be raised as an American; and (3) the plaintiff's right to reasonable visitation is rendered illusory. We consider each of these claims to determine whether, if valid, they individually or collectively rise to the level of requiring this court to find an abuse of discretion.

While it is true that, as a practical matter, the court's exercise of its continuing jurisdiction over the education, care, custody and visitation of a child under General Statutes § 46b-56 is made more difficult where the custodial parent resides outside of the country, it would be inaccurate to say that in such cases the court loses all control over the child. In a context applicable in principle here, we have said that the mere lack of power to enforce a judgment extraterritorially does not deprive a court having the parties before it of jurisdiction to render a judgment that may be enforced on grounds of comity in any other jurisdiction. Frick v. Hartford Life Ins. Co., 98 Conn. 251, 259, 119 A. 229 (1922), citing Morrill v. Morrill, 83 Conn. 479, 487-88, 492, 77 A. 1 (1910); White v....

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