Sweeney v. Sweeney

• Decision Date: 21 September 2004
• Docket Number: No. 16978.,16978.
• Citation: 271 Conn. 193,856 A.2d 997
• Court: Connecticut Supreme Court
• Parties: Dale M. SWEENEY v. Dennis R. SWEENEY.

856 A.2d 997

271 Conn. 193

Dale M. SWEENEY v.Dennis R. SWEENEY.

No. 16978.

Supreme Court of Connecticut.

Argued March 8, 2004.

Decided September 21, 2004.

Laura-Ann Simmons, with whom was Anthony A. Piazza, Stamford, for the appellant(defendant).

Kevin F. Collins, Stamford, for the appellee(plaintiff).

Mark H. Henderson, Stamford, for the minor child.

SULLIVAN, C.J., and BORDEN, NORCOTT, KATZ and ZARELLA, Js.

NORCOTT, J.

The defendant, Dennis R. Sweeney, appeals, following our grant of certification,¹ from the judgment of the Appellate Court dismissing his appeal, for lack of a final judgment, from the trial court's pendente lite order granting the plaintiff, Dale M. Sweeney, permission to enroll the parties' minor child in parochial school.Sweeney v. Sweeney,75 Conn.App. 279, 289, 815 A.2d 287(2003).The defendant claims that the Appellate Court improperly concluded that the trial court's pendente lite order, which was entered in the course of dissolution proceedings and directed that the parties' minor child attend a parochial school over his objection as joint legal custodian, did not constitute an appealable interlocutory order pursuant to the standard articulated in State v. Curcio,191 Conn. 27, 31, 463 A.2d 566(1983).We agree with the defendant and, accordingly, we reverse the judgment of the Appellate Court.

The following procedural history, as set forth in the opinion of the Appellate Court, is relevant to this appeal."On November 27, 2001, the plaintiff brought this action for a legal separation from the defendant.The defendant filed a cross complaint for dissolution of the marriage and for sole legal custody of the parties' minor child.The plaintiff responded with an amended complaint also seeking dissolution of the marriage and sole legal custody of the minor child."Sweeney v. Sweeney,supra, 75 Conn.App. at 280-81, 815 A.2d 287.

During the pendency of the dissolution proceedings, "[t]he [trial] court [entered an order temporarily granting the parties] joint legal custody, [and]the plaintiff[primary physical custody of the minor child].The child had been baptized in the Roman Catholic faith and was scheduled to commence kindergarten in the 2002-2003 school year.On May 17, 2002, the defendant filed a motion stating that the parties did not agree on whether the child should attend public or parochial school and requesting [a determination as to the school that the minor child would attend] in the fall of 2002.Three weeks later, the plaintiff filed a motion seeking ... permission to enroll the child in parochial school.

"The plaintiff argued that her motion should be granted because the defendant had ... participated in the child's baptism ceremony and had agreed on at least two separate occasions to enroll the child in parochial school.The defendant argued that the parties had not agreed to send the child to parochial school, and that the school the plaintiff had selected was small, underfunded, lacked certification and had not provided the parties with information on standardized testing.The defendant further argued that an order permitting the plaintiff to enroll the child in parochial school would be in violation of the first amendment to the United States constitution."(Internal quotation marks omitted.)Id., at 281, 815 A.2d 287.

On August 6, 2002, the trial court conducted a hearing on these motions and granted the plaintiff permission to enroll the minor child in parochial school.Id.The defendant appealed from this order on August 19, 2002, and also sought to stay the pendente lite order pending the appeal.Id., at 282, 815 A.2d 287.At a hearing on August 23, 2002, the trial court expressed its determination that the order was stayed automatically, but granted the plaintiff's oral motion to terminate the stay in order that the minor child could begin classes.

The defendant then moved for review of the trial court's termination of the stay by the Appellate Court.Id.The Appellate Court denied the defendant's motion for review and, sua sponte, placed the defendant's appeal from the trial court's pendente lite order on its own motion calendar.Id.The Appellate Court ordered that the parties appear and provide reasons, if any, as to why the defendant's appeal should not be dismissed for lack of a final judgment.Id.

Thereafter, the Appellate Court dismissed the defendant's appeal for lack of a final judgment.Id., at 283, 815 A.2d 287.In so doing, the Appellate Court noted that the trial court's pendente lite order did not fall squarely within any of the previously recognized categories of appealable interlocutory orders in family cases.Id., at 283-84, 815 A.2d 287.As an issue of first impression, the Appellate Court sought guidance from this court's decision in Madigan v. Madigan,224 Conn. 749, 620 A.2d 1276(1993).In Madigan,we concluded that a pendente lite order of physical custody, entered during dissolution proceedings, was a final judgment for the purpose of appellate review because such an order affects the "irreplaceable time and relationship shared between parent and child";id., at 755, 620 A.2d 1276; and that "an immediate appeal is the only reasonable method of ensuring that the important rights surrounding the parent-child relationship are adequately protected."Id., at 757, 620 A.2d 1276.

The Appellate Court distinguished Madigan because, in its view, the trial court's pendente lite order in the present case impacted parental "authority to make decisions on behalf of the child, not the `irreplaceable time and relationship shared between parent and child.'"Sweeney v. Sweeney,supra, 75 Conn.App. at 286, 815 A.2d 287.The Appellate Court further voiced its concern that to extend Madigan beyond orders of physical custody, and apply it to pendente lite orders impacting the right of a joint legal custodian to make decisions on behalf of a minor child, would "`[open] the floodgates' to a wave of appeals from temporary orders regarding education, religious instruction, medical care and a host of other issues, both trivial and significant, affecting a child's welfare."Id.

The Appellate Court declined, however, "to adopt a bright line rule that would preclude appeals from all temporary orders of legal custody, preferring instead to consider such appeals on a case-by-case basis."Id.In the consideration of the immediate appealability of pendente lite orders, such as the one at issue in this case regarding the religious and educational upbringing of a minor child, the Appellate Court indicated that it found instructive the various justifications announced in Madigan as persuasive on the issue of the immediate appealability of orders of physical custody.Id., at 287, 815 A.2d 287.In Madigan,we found persuasive the plaintiff's claims that a pendente lite order of physical custody should be considered a final judgment for purposes of appeal because: (1) such an order carries irreparable consequences in that lost opportunities to spend time with a minor child can never be replaced; (2) such an order typically will interfere with an aggrieved parent's physical interaction with a minor child over a significant period of time, given the lengthy duration of contested custody matters; (3) an aggrieved parent's ability to seek to modify an order of physical custody may not be an adequate substitute for vindication of the aggrieved parent's important rights through an appeal; and (4) the temporary order may have a significant impact on a subsequent permanent custody order.Madigan v. Madigan,supra, 224 Conn. at 756-57, 620 A.2d 1276.

The Appellate Court concluded that, although the importance of a parent's interest in the care, custody and control of a minor child "cannot be underestimated ... to the extent the defendant has a joint custodial right to decide whether his child shall attend public or parochial school, he freely relinquished that right when he requested [that] the [trial] court ... settle the parties' dispute...."Sweeney v. Sweeney,supra, 75 Conn.App. at 288, 815 A.2d 287.Moreover, the Appellate Court concluded that the trial court's pendente lite order was focused on a narrow issue, the minor child's educational institution for the fall of 2002, and did not preclude the defendant from participating in future decisions regarding the religious or educational upbringing of his minor child.Id., at 288-89, 815 A.2d 287.As such, the Appellate Court determined that the trial court's pendente lite order did not exact "irreparable consequences" on the defendant and, therefore, did not satisfy the first consideration recognized in Madigan.Id., at 287-88, 815 A.2d 287.With regard to the remaining factors in Madigan,the Appellate Court concluded that: "Because the defendant has not suffered an irreparable loss, any delay in the dissolution proceedings will not subject him to a further deprivation.The argument that an appeal is the best means available to vindicate the loss also is unavailing because no such loss occurred.Finally, it cannot be assumed that the child's enrollment in parochial school for the current school year necessarily will influence the court's future orders regarding the child's education....Moreover, should there be any `spillover effect,'[on future orders]the defendant may appeal from the court's final orders."(Citations omitted.)Id., at 288-89, 815 A.2d 287.Having concluded that the trial court's pendente lite order was not a final judgment, the Appellate Court dismissed the defendant's appeal.Id., at 289, 815 A.2d 287.

On appeal from the judgment of the Appellate Court, the defendant claims that the court improperly dismissed his appeal for lack of a final judgment.Specifically, the defendant contends that a pendente lite order regarding the religious and educational upbringing of a minor child is a final judgment for the purpose of appellate review because such an order concludes the right of a joint...