Simons v. Simons

• Decision Date: 08 February 1977
• Citation: 374 A.2d 1040,172 Conn. 341
• Parties: Elwyn SIMONS v. Mary Fitch SIMONS.
• Court: Connecticut Supreme Court

Page 1040

374 A.2d 1040

172 Conn. 341

Elwyn SIMONS v. Mary Fitch SIMONS.

Supreme Court of Connecticut.

Argued Nov. 9, 1976.

Decided Feb. 8, 1977.

Dennis L. Pieragostini, New Haven, with whom was Max H. Schwartz, New Haven, for appellant (defendant).

R. William Bohonnon, New Haven, for appellee (plaintiff).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.

LOISELLE, Associate Justice.

The plaintiff and the defendant were divorced on November 17, 1972. The defendant mother was awarded custody of her two children: Katherine, born in 1960, the issue of a prior marriage (adopted by the plaintiff in 1965), and David, born in 1965 of the marriage of the parties. On June 7, 1974, on the plaintiff's motion a state trial referee, acting as a court under General Statutes § 52-434a, awarded custody of David to the plaintiff father, with rights of visitation in the mother. The defendant appealed from the decision of the referee.

Section 46-42 of the General Statutes gives courts broad authority to modify custody orders: "(I)n any controversy before the superior court as to the custody or care of minor children, the court may at any time make or modify any proper order relative to custody, care, education, visitation and support of such children and may assign the custody of any of such children to either parent, or to a third party, according to its best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable. In making or modifying any order with respect to custody or visitation, the court shall be guided by the best interests of the child, giving consideration to the wishes of the child if he is of sufficient age and capable of forming an intelligent preference . . . ."

A rule which has been followed in this state limits this broad statutory authority in the interests of respecting the finality of judgments. "(B)efore an order as to custody . . . of children may be modified there must have been a material change of circumstances after the order was issued." Cleveland v. Cleveland, 165 Conn. 95, 100, 328 A.2d 691, 694; Krasnow v. Krasnow, 140 Conn. 254, 99 A.2d 104. According to this rule, circumstances existing prior to or at the time of the initial custody order are not grounds for a change of custody unless since that order there has been a material change in circumstances which puts into question the propriety of continuing the existing custody order. Krasnow v. Krasnow, supra. If such a material change is found, the court may then consider past conduct as it bears on the present character of a parent and the suitability of that parent as custodian of the child. Sullivan v. Sullivan, 141 Conn. 235, 240, 104 A.2d 898.

The defendant has briefed and pressed claims that the court, in changing the custody award, erred in three respects: in its finding of facts, in finding that a material change in circumstances had occurred, and in finding that the welfare of the child David would best be served by awarding custody to his father.

Certain findings were attacked as found without evidence. The plaintiff has printed no evidence in his brief to support these findings and they are, therefore, stricken. Other portions of the draft finding are claimed to be material facts which were admitted or undisputed. These are based on testimony by the defendant herself, and in some cases, on hearsay testimony of others as to what the defendant said. The credibility of such testimony was for the court to determine, and we cannot say it was error to refuse to include these in the finding, except for the draft finding that the mother desires to retain custody, which is undisputed and material and therefore added to the finding.

As corrected, the finding includes the following facts which occurred after the initial award of custody to the defendant was made: The father remarried within two weeks of the divorce, taking David to attend the wedding on a regular visitation day, without informing the mother that David would attend the wedding, which increased the stress and pressure on the mother. In July, 1973, a male friend was seen with the mother alone at her home in the evening and early morning. From November, 1973, up to the date of the hearing, David was under treatment by a psychiatric social worker. Beginning in 1973 the defendant was also under psychiatric treatment, and her psychological health showed a marked improvement. Some time during the year before the hearing, the plaintiff and his second wife had a child. During this year the father taped conversations with David concerning David's life with his mother revealing incidents of erratic behavior on her part. In April, 1974, police personnel responding to the defendant's complaint came to her home, where they found her incoherent and loud. She was arguing with her parents about her daughter's staying with them, and the police caused the girl to go home with her grandparents.

These facts cannot be said to show a "material change of circumstances" since the first custody award was made. The remarriage of the noncustodial parent by itself has been held not to justify opening the question of custody. Antedomenico v. Antedomenico, 142 Conn. 558, 115 A.2d 659. The fact that treatment is begun, when the problem being treated may have arisen earlier, cannot be held to justify opening custody, or the rule would deter the initiation of needed treatment. The family quarrel investigated by the police and the taping of conversations by the father are mere incidents, not changes in circumstances. One overnight visit by a member of the opposite sex, when it is not shown the child was even present in the home, does not constitute a change in circumstances affecting the welfare of a child.

The subordinate facts in the finding as corrected do not support the conclusion of a material change in circumstances since the divorce decree.

There are, however, other facts which were found by the court which argue that custody should be changed. These facts are either given without dates, or occurred over a period beginning before the initial custody order. While the divorce was pending and for some time after the decree, the defendant was under emotional stress. Between June 28, 1971, and April 3, 1974, the police, in response to the defendant's complaints, were at her home on numerous occasions. She had been regularly seeing a psychiatrist in regard to her emotional problems during the three years preceding the hearing. During this period she drank excessively. She could drink a quart of bourbon nightly. She drank in the presence of her children. She had many conflicts with her parents. The children's pediatrician visited the defendant's home several times and found it to be completely unattended. He was consulted by the defendant's parents and felt a moral obligation to report what he considered instances of neglect of the children. A number of individuals who had been in the defendant's home found it dirty and untidy. Both children spent a great deal of time with their grandparents, where they were well cared for; the daughter reported she was, in effect, living with her grandparents.

The defendant argues that her emotional distress, her use of alcohol, her conflicts with her parents, and the police activity at her home all predate the court's initial custody award, and thus cannot support an opening of the question of custody of the child. It is true that the police activity and the conflicts between the defendant and her parents cannot support an opening of custody because they are not relevant to the welfare of the child. Anyone may call the police with a complaint or may quarrel with relatives and still be a fit custodian for a minor. The defendant's emotional problems, the condition of her home, her drinking and leaving her home unattended, however, are not irrelevant to the welfare of the child. ¹ There is no showing that the court which entered the original custody order considered any evidence relating to these matters. Thus the interest in the finality of judgments, which supports the common-law rule requiring a material change in circumstances to modify custody, must be balanced against the best interests of the child. On the national scene, courts are divided in their views of the relative weights accorded to these interests. Other jurisdictions have permitted custody to be modified, in the best interests of the child, either because of changes since the first decree or because of facts which may have existed earlier but were not known to the court which made the prior custody award. Clark, Domestic Relations § 17.7, p. 599; annot., 9 A.L.R.2d 623.

The rule requiring a change in circumstances was first discussed by this court in Freund v. Burns, 131 Conn. 380, 40 A.2d 754, in connection with modification of a custody award...