Weaver v. Sena

• Decision Date: 08 September 2020
• Docket Number: AC 42411
• Citation: 199 Conn.App. 852,238 A.3d 103
• Court: Connecticut Court of Appeals
• Parties: Petricia S. WEAVER v. Scott A. SENA

199 Conn.App. 852

238 A.3d 103

Petricia S. WEAVER

v.Scott A. SENA

AC 42411

Appellate Court of Connecticut.

Argued May 13, 2020

Officially released September 8, 2020

Cody A. Layton, with whom were Drzislav Coric, New London, and, on the brief, Aleyshia F. Young, for the appellant(plaintiff).

Campbell D. Barrett, with whom were Johanna S. Katz and, on the brief, Jon T. Kukucka, Hartford, for the appellee(defendant).

Keller, Prescott and Devlin, Js.

DEVLIN, J.

The plaintiff, Petricia S. Weaver, appeals from the judgment of the trial court granting the motion filed by the defendant, Scott A. Sena, to modify custody of the parties’ minor child.The plaintiff claims that the trial court erred in granting the defendant primary physical custody of, and final decision-making authority in matters pertaining to, the parties’ minor child, who was then eleven years old and had resided with the plaintiff since his birth, in the absence of a finding of a material change in circumstances and in contravention of the minor child's best interests.The plaintiff also contends that the trial court violated her constitutional right to due process by "unduly limiting her case-in-chief."We affirm the judgment of the trial court.¹

The following procedural history is relevant to our review of the plaintiff's claims on appeal.The minor child was born to the parties, who were never married, on May 6, 2007.In March, 2008, the plaintiff filed this action against the defendant seeking orders of custody and support as to the minor child.In July, 2008, the trial court, Hon. Joseph J. Purtill , judge trial referee, approved the parties’ agreement that they would share joint legal custody of the minor child, the plaintiff would have primary physical custody, and the defendant would have visitation rights.

Since the entry of those initial orders, the parties have engaged in extensive litigation regarding the custody of and visitation with the minor child.Prior to the December 10, 2018 orders, from which the present appeal was taken, the parties most recently, on May 18, 2016, entered into an agreement whereby, inter alia, they would continue to share joint legal custody of the minor child, who would continue to reside with the plaintiff.The parties agreed that the defendant, who resides in Massachusetts, would continue to have visitation with the minor child during the school year pursuant to prior court orders, essentially every other weekend and certain holidays.The parties further agreed that, in the event of an impasse, the plaintiff would have final decision-making authority in educational, medical and religious decisions.The court adopted the parties’ agreement and further ordered that the minor child would spend three weeks of vacation each summer with the plaintiff and the remainder of the summer with the defendant.

On January 3, 2018, the defendant filed a motion to modify, seeking immediate physical custody of the minor child and supervised visitation for the plaintiff.In his motion, the defendant alleged that the plaintiff had demonstrated that she was incapable of fostering a healthy relationship between him and the minor child and that she continuously interfered with his access to and time with him.The defendant cited to two specific instances in December, 2017, when the plaintiff's interference with his relationship with the minor child demonstrated her increased efforts to manipulate the minor child and alienate him from the defendant.

Following a four day hearing, the trial court, Hon. Joseph Q. Koletsky , judge trial referee, issued a memorandum of decision on December 10, 2018, ordering, inter alia, that it was in the best interests of the minor child that primary physical custody be transferred to the defendant in Massachusetts "immediately upon the end of the last day of school prior to Christmas vacation at [the minor child's] school at 12:30 p.m." and that the plaintiff would have supervised visitation with the minor child in Massachusetts.The court ordered that the defendant would have final decision-making authority.²The court further ordered that the plaintiff would not have any unsupervised telephone calls with the minor child until she received mental health treatment and until further order of the court.The court retained jurisdiction over the case, ordered the plaintiff to submit to a psychiatric evaluation, and prohibited the plaintiff from filing any further motions without receiving prior permission from the court.The court explained that the foregoing orders were necessitated by the "emotional difficulties of the minor child [that] have been caused in large part by [the plaintiff's] behavior, being driven, as it is, by her serious mental [health] issues, which, to date, have largely not been treated effectively."This appeal followed.³

I

The plaintiff challenges the trial court's decision to transfer primary physical custody of the minor child to the defendant.Specifically, the plaintiff claims that the court improperly modified custody without first finding that a material change in circumstances had occurred since the entry of the prior order.She also challenges the trial court's determination that modification was in the best interests of the minor child.We are not persuaded.

" General Statutes § 46b-56 provides trial courts with the statutory authority to modify an order of custody or visitation.When making that determination, however, a court must satisfy two requirements.First, modification of a custody award must be based upon [inter alia] a material change [in] circumstances which alters the court's finding of the best interests of the child ....⁴Second, the court shall consider the best interests of the child and in doing so may consider several factors.⁵ ...Before a court may modify a custody order, it must find that there has been a material change in circumstances since the prior order of the court, but the ultimate test is the best interests of the child. ...These requirements are based on the interest in finality of judgments ... and the family's need for stability. ...The burden of proving a change to be in the best interest of the child rests on the party seeking the change. ...

"Not all changes occurring in the time between the prior custody order and the motion for modification are material. ...Although there are no bright-line rules for determining when a material change in circumstances warranting the modification of custody has occurred, there are several relevant considerations, including whether ... the change affects the child's well-being in a meaningful way."(Citations omitted; emphasis omitted; footnotes added; footnote omitted; internal quotation marks omitted.)Clougherty v. Clougherty , 162 Conn. App. 857, 868–70, 133 A.3d 886, cert. denied, 320 Conn. 932, 134 A.3d 621(2016).

"Our standard of review of a trial court's decision regarding custody [and] visitation ... orders is one of abuse of discretion. ...[T]he 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[firsthand] 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."(Internal quotation marks omitted.)Baker-Grenier v. Grenier , 147 Conn. App. 516, 519–20, 83 A.3d 698(2014)."We further note that a trial court's factual findings may be reversed on appeal only if they are clearly erroneous.To the extent that the plaintiff claims that the trial court should have credited certain evidence over other evidence that the court did credit, it is well settled that such matters are exclusively within the province of the trial court."Peters v. Senman , 193 Conn. App. 766, 779, 220 A.3d 114(2019), cert. denied, 334 Conn. 924, 223 A.3d 380(2020).

In this case, the defendant moved to modify custody on the ground that "the defendant has had two [recent] visits with the minor child in which the child has been crying and screaming [that]he doesn't want to go and wants to be home with his mother."The defendant alleged that "[t]his conduct on the part of the minor child is completely opposite the child's desire and demeanor just [one month earlier]."Because the minor child's newly expressed position "mirror[ed]the plaintiff's desires and requests in all of her motions,"the defendant alleged, "the minor child is being manipulated and, or, ‘coached,’ by the plaintiff such that the plaintiff is essentially encouraging parental alienation between the minor child and the defendant."⁶

Although the trial court did not explicitly find a material change in circumstances, this court has held that an implicit finding of a change in circumstances will satisfy...