Szczerkowski v. Karmelowicz
Decision Date | 17 October 2000 |
Docket Number | (AC 18801) |
Citation | 60 Conn. App. 429,759 A.2d 1050 |
Court | Connecticut Court of Appeals |
Parties | THADDEUS SZCZERKOWSKI v. LINDA KARMELOWICZ |
Lavery, C. J., and Spear and Mihalakos, JS. Irene P. Romanelli, for the appellant (defendant).
Karen S. Gersten, for the appellee (plaintiff).
The defendant, Linda Karmelowicz, appeals from the judgment of the trial court granting motions by the plaintiff, Thaddeus Szczerkowski, to modify certain visitation and support orders thus increasing the plaintiff's visitation with the parties' two minor children and applying his child support payments during summer visitation with them to his arrearages, and denying the defendant's motions for reconsideration and for the appointment of counsel for the children. On appeal, the defendant claims that the court abused its discretion in (1) failing to find a substantial change in circumstances prior to modifying the visitation schedule, (2) making financial orders without having the parties' financial orders and financial affidavits in evidence, and after indicating that it would not make financial orders and (3) not appointing counsel for the children. We affirm in part and reverse in part, the judgment of the trial court.
Prior to this court's analysis of the facts in this matter, we must consider whether we should review the appeal. The record does not contain a written memorandum of decision or a transcription of the oral decision by the court.1 "The duty to provide this court with a record adequate for review rests with the appellant." Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 607, 710 A.2d 190 (1998).
State v. Rios, 30 Conn. App. 712, 715-16, 622 A.2d 618 (1993). (Internal quotation marks omitted.) Chase Manhattan Bank/City Trust v. AECO Elevator Co., supra, 48 Conn. App. 608-609. We have reviewed the record in this case and conclude that it is adequate as to the visitation and financial orders issues to permit review by this court as to those issues.
The following facts and procedural history are necessary to the resolution of this appeal. The record reveals that the plaintiff and the defendant never have been married. They lived together and had two children, Eric, born on January 22, 1985, and Adam, born on February 12, 1986. On July 22, 1988, the defendant was granted sole custody of the children. A myriad of motions, primarily concerning custody and visitation, were subsequently filed by the parties in the ensuing years. The motions that form the basis of this appeal were filed on August 11 and October 27, 1997, and heard by the court on May 4, 1998. By an oral decision from the bench on May 4, 1998, the court modified the prior visitation orders and provided, inter alia, that the plaintiff's summer visitation with the children would be increased to six weeks.2
The defendant first claims that the court abused its discretion in modifying the plaintiffs visitation with the children because it failed to find that there was a substantial change in circumstances. We disagree.
At the outset, we set forth our standard of review. (Citations omitted; internal quotation marks omitted.) Simmons v. Simmons, 244 Conn. 158, 174-75, 708 A.2d 949 (1998).
"[I]n determining [whether there has been an abuse of discretion] the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness." (Internal quotation marks omitted.) Eldridge v. Eldridge, 244 Conn. 523, 534, 710 A.2d 757 (1998). "[W]e do not review the evidence to determine whether a conclusion different from the one reached could have been reached." (Internal quotation marks omitted.) Crowley v. Crowley, 46 Conn. App. 87, 90-91, 699 A.2d 1029 (1997).
When a court rules on a motion to modify visitation, it is statutorily incumbent on the court that its order be guided by the best interest of the child standard, as set forth in General Statutes § 46b-56 (b).3Ireland v. Ireland, 246 Conn. 413, 452, 717 A.2d 676 (1998); Kelly v. Kelly, 54 Conn. App. 50, 57, 732 A.2d 808 (1999). We review that determination in light of whether the court abused its discretion. El Idrissi v. El Idrissi, 173 Conn. 295, 300-301, 377 A.2d 330 (1977); Wilson v. Wilson, 38 Conn. App. 263, 269, 661 A.2d 621 (1995).
Although the defendant claims that the court was required to find that a substantial change of circumstances existed before modifying the plaintiffs visitation, this is a misreading of our law. The defendant cites no case, and our independent research discloses none, that requires a court ruling on a motion to modify visitation to find as a threshold matter that a change of circumstances has occurred. Rather, the standard the court applies is that of the best interest of the child. See General Statutes § 46b-56 (b); Ireland v. Ireland, supra 246 Conn. 452; Kelly v. Kelly, supra, 54 Conn. App. 57. Our independent review of the record discloses that the court applied the best interest of the child standard in ruling as it did and that its decision does not constitute an abuse of discretion.
On the basis of the testimony of Kevin Connolly, a psychologist who met three times with the children as part of a court-ordered custody evaluation, the court in its oral decision from the bench found that the children had made "a simple request," which was "to spend a little bit more time with" the plaintiff. Further, the court stated that the children were "getting a little bit older; their interests may dovetail more with [the plaintiffs]," and that "because the parents are geographically distant from one another and the children need to be understood to have a life, I think it's important for the court to meet their needs." Indeed, as the court succinctly stated, "[W]e're trying to respond to the articulated needs of the children to spend more time with [the plaintiff]." No other rational reading of the court's language is possible but that it was acting in the children's best interests when it modified visitation to permit the plaintiff six weeks' visitation in the summer months.
Although the defendant in her briefs disputes aspects of Connolly's testimony, claiming that he "made no independent determination as to the extent of expanded visitation and had not inquired extensively into the children's desires," it is well established that the evaluation of a witness' testimony and credibility is wholly within the province of the trier of fact. See, e.g., State v. Jarzbek, 204 Conn. 683, 706, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988) (); National Folding Box Co. v. New Haven, 146 Conn. 578, 586, 153 A.2d 420 (1959) (). Further, the defendant's reliance on cases such as Brubeck v. Burns-Brubeck, 42 Conn. App. 583, 585, 680...
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