Havis-Carbone v. Carbone ( 2015 )

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LISA HAVIS-CARBONE v. ARTHUR CARBONE, JR.
(AC 36353)
Lavine, Beach and Mullins, Js.
Submitted on briefs February 2—officially released March 6, 2015*
(Appeal from Superior Court, judicial district of New
Britain, Dolan, J.)
Alfred F. Morrocco, Jr. filed a brief for the appel-
lant (defendant).
Lisa Havis, self-represented, the appellee (plaintiff)
filed a brief.
Opinion
PER CURIAM. The defendant, Arthur Carbone, Jr.,
appeals from the postdissolution judgment rendered by
the trial court granting the motion for modification filed
by the self-represented plaintiff, Lisa Havis-Carbone.1
In filing the motion, the plaintiff sought permission to
relocate with the parties’ minor child to the state of
Texas. On appeal, the defendant claims, in essence, that
the court, Dolan, J., improperly granted the motion
for modification by giving the plaintiff permission to
relocate prior to hearing evidence, especially in light
of the plaintiff’s failure to carry her burden of proof
and the court’s failure to consider all of the factors
prescribed in General Statutes § 46b-56d.2 We reverse
the judgment of the trial court.3
I
PROCEDURAL HISTORY
We have reviewed the record, including the entire
transcript of the proceedings before the court in Octo-
ber, 2013, which contains the following relevant proce-
dural history.4 The parties were intermarried in 2005
and divorced in 2008.5 Their only child, a daughter, was
born in January, 2006. Pursuant to the judgment of
dissolution, the parties shared joint legal custody of the
child, whose primary residence was with the plaintiff.
The defendant had visitation rights with the child. Sub-
sequently, the judgment with respect to custody, visita-
tion, and child support was modified a number of times.
On May 6, 2010, the plaintiff filed a motion for modifica-
tion to relocate with the child to Texas. The parties
entered into an agreement, which was accepted by the
court, Hon. Romeo G. Petroni, judge trial referee. Pur-
suant to the agreement, the plaintiff withdrew her
motion for modification.
Three years later, on May 28, 2013, the plaintiff filed
another motion for modification, again seeking to relo-
cate to Texas with the child. A hearing on the motion
for modification was scheduled for June 27, 2013, at
which time the court, Pinkus, J., approved the parties’
agreement to appoint Attorney Katarzyna Maluszewski
as guardian ad litem for the child.6 The matter was
continued at Maluszewski’s request until August 15,
2013, at which time Judge Pinkus approved the parties’
agreement to have Stephanie Stein Leite, doctor of psy-
chology, update a prior custody evaluation.
On September 20, 2013, Attorney Alfred F. Morrocco,
Jr., filed an appearance on behalf of the defendant as
well as a request to continue the hearing until Septem-
ber 27, 2013. Judge Dolan granted the request to con-
tinue to a date uncertain. On September 23, 2013,
Maluszewski filed a request for a status conference. On
October 2, 2013, the plaintiff, Morrocco, and Maluszew-
ski appeared before Judge Dolan. In response to an
inquiry from Judge Dolan, Morrocco stated that the
defendant was not present because he was on a long
planned vacation. Morrocco also stated that he had
made efforts to schedule the status conference to a
time when the defendant could be present, but he was
unsuccessful in rescheduling it. The following collo-
quy occurred.
‘‘The Court: September 20. So you knew on Septem-
ber 20 that he wasn’t going to be here because it was
a long planned vacation?
‘‘Attorney Morrocco: Right. And I told that to the
[guardian ad litem], and I told everyone. I asked the
court can we change it, and they said ’no,’ so I’m here.
It’s a status conference. We have a hearing date for
November 4. She wants to move it forward. . . . I have
dates available.
‘‘The Court: Well, how am I going to move it forward?
‘‘Attorney Maluszewski: I know—actually if mom—
if mom could talk?
‘‘The Court: No . . . .
‘‘[The Plaintiff]: I beg your . . .
‘‘The Court: How am I going to move it forward in
terms . . .
‘‘Attorney Maluszewski: I don’t know, Your Honor,
but . . .
‘‘The Court: if we have to have a hearing?
‘‘Attorney Maluszewski: the hearing was scheduled
for September 23, it was marked off. Mom . . .
‘‘The Court: All right. Why was it marked off?
‘‘Attorney Maluszewski: I believe initially, I don’t
think you were here, and I think Judge Prestley had a
personal engagement, so it was marked off and then
Attorney Morrocco came into the file.
‘‘The problem is mom doesn’t have a job and mom’s
going to lose this job in Texas if she doesn’t go soon.
So if she waits until November, she might not have a
job. And she doesn’t have a job here because it was a
temporary job. And I’m concerned for the child because
this child lives with mom.
‘‘The Court: No, I understand that.
‘‘Attorney Maluszewski: So, I’m thinking is there . . .
if there’s anything you can do, Your Honor, as to hear
this earlier somehow, some way.
‘‘The Court: How am I going to do that?
‘‘Attorney Maluszewski: I don’t know, Your Honor.
‘‘[The Plaintiff]: This has been . . . .
‘‘The Court: No, I understand, you have a perfect right
to be enraged. I would be furious.
‘‘[The Plaintiff]: I’ve been enraged. I was enraged. I
thought we were coming here on the twenty-third
. . . .
‘‘The Court: Right.
‘‘[The Plaintiff]: for the hearing, and I’ve been ready.
I’ve been ready to go. My house is packed, my payments
are behind. I’ve . . . my job has expired that I had
here, and I’m all ready to relocate. And then I was told
that he—that Mr. Carbone has since hired Attorney
Morrocco . . . .
‘‘The Court: I’m going to let you go now, and I’m
going to—you’re going to come back here for a hearing
in December.
‘‘[The Plaintiff]: Thank you.’’ (Emphasis added.)
Immediately thereafter, the court and parties agreed
to return to court a week later, on October 9, 2013, at
2 p.m., in order for Morrocco to present the plaintiff’s
settlement proposal to the defendant. The following
colloquy occurred:
‘‘Attorney Morrocco: I asked them to give me some-
thing that they’re willing to accept to settle this case,
and I’ll present it to him. I’ll say, ‘Look, you don’t know
what the judge is going to do, but you do know that
this is available.’
‘‘The Court: No, but you can tell him you know what
the judge is going to do if there’s a doctor’s report that
says that she ought to be able to relocate. You can tell
him you do know what the judge is going to do.
‘‘[The Plaintiff]: Just so you know, I did offer a
proposal.
‘‘The Court: No, no, that’s okay. We’ll get this straight-
ened out. If you two can’t work out the terms, I’ll work
out the terms . . .
‘‘Attorney Morrocco: Right.
‘‘The Court: but you’re going to be able to go to Texas.
‘‘[The Plaintiff]: Thank you.’’ (Emphasis added.)
The parties, Morrocco, and Maluszewski appeared
before Judge Dolan on October 9, 2013, at which time
Maluszewski stated that the parties had not reached an
agreement. The court immediately stated: ‘‘Take the
stand.’’ The following colloquy occurred.
‘‘Attorney Morrocco: Your Honor, if we’re going to
have a hearing, then I think that this was a status con-
ference.
‘‘The Court: No . . . it was not a status conference.
‘‘Attorney Morrocco: Yes, it was because we have a
hearing date set for November 7.
‘‘The Court: All right. Then you can go to Texas, and
I’ll put this down in January. All right?
‘‘Attorney Morrocco: Your Honor, first of all, if you’re
making a decision like that it’s going to disrupt an entire
family. He’s got to be here, too.
‘‘The Court: But you’re going to get a hearing, but
she’s going to go. I’m not going to have her lose her
job. She’s going. I’m giving her permission to move to
Texas. Will you come back here for the hearing?
‘‘[The Plaintiff]: Yes.
‘‘The Court: Then I’m going to . . . do you have any
objection? Do you think that’s in the best interest of
. . .
‘‘Attorney Maluszewski: I do, Your Honor.
‘‘[The Defendant]: May I speak, please?
‘‘The Court: Sure.
‘‘[The Defendant]: What hasn’t been taken into con-
sideration is that I have two other children in the home,
a three and a four year old that grew up with the seven
year old daughter. Her stepmom is in the house. We
can provide . . . .
‘‘The Court: Sir, I’m not doing this that way. You
can have a full hearing, but she’s going to be able to
go to Texas now and then come back for the full hearing.
This was not down for a status conference today.
‘‘Attorney Morrocco: Yes, it was.7
***
‘‘Attorney Morrocco: Because we had—he had a hear-
ing date.
‘‘The Court: He’s going to get a full hearing. He can
put on as many witnesses as he wants, but she’s going
to get to go to Texas until that happens.
’’Attorney Morrocco: Yeah, but, Your Honor, that prej-
udices . . . .
‘‘The Court: I’m well aware of what that does.
‘‘Attorney Morrocco: Okay. But that prejudices his
case. It puts me in a predicament; to ask for an indepen-
dent judicial review.
‘‘The Court: I’m not going to give him one. You can
file any appeal you want. I’m telling her that she can
go to Texas now. You’ve got an evaluation where the
doctor says that she should be permitted to go to
Texas. Correct?
‘‘Attorney Maluszewski: Correct.
‘‘The Court: And she’s going to lose her job if she
doesn’t go down there now, and I’m permitting her to
go and we can have the hearing, and if I decide that
it’s in the best interest of the child, then I’ll bring her
back. Then the child will have to come back, that’s all,
and that’s what we’ll do. But in the meantime, I’m going
to tell her she can go to Texas.
‘‘Attorney Morrocco: Your Honor, it puts me in a
predicament that I have to file motions that concern
. . . you’re prejudging the case without hearing the
. . .
‘‘The Court: I’m not prejudging anything.
‘‘Attorney Morrocco: You are . . .
‘‘The Court: I’m making a decision . . . .
‘‘Attorney Morrocco: because we have an evaluator
who is not—this was done three years ago, the same
issue, exactly the same. There was an evaluation. The
child was to stay here. Now, three years later there’s
no change in circumstances, Your Honor.
‘‘The Court: Counsel, file anything you want. You’re
going to get a full hearing, but in the meantime, she’s
going to get to go to Texas.
‘‘[The Defendant]: Your Honor, may I speak?
‘‘The Court: Sure.
‘‘[The Defendant]: Currently, I have my daughter
about 60 percent of the time.
‘‘The Court: You don’t have her more than half the
time. That’s not even—nobody says that. That’s not
what the doctor says. That’s not what the guardian ad
litem says. But again, that’s for the hearing. There’s
going to be a hearing. All I’m going to decide is what
takes place between now and the hearing. I’m main-
taining jurisdiction over this.
‘‘She has to come back, but she’s going to be permit-
ted to go to Texas, and if I find that it’s in the best
interest of the child to stay here, then she’s going . . .
then the child is going to move back here and the mother
can decide whether she wants to come or not. That’s
what we’re going to do. What’s the date for the
hearing?’’
Although a hearing was scheduled for November 4,
2013, the parties and the court agreed to hold the hear-
ing on Tuesday, October 15, 2013. The court ordered
that Liete testify first.
On October 15, 2013, the parties, Morrocco, and
Maluszewski appeared before the court. Morrocco
stated that he wished to file a motion to transfer the
case to the Regional Family Docket in Middletown,
where it had been once before. The court denied the
defendant permission to file a written motion in court,
but permitted Morrocco to state the motion orally.8 The
court denied the defendant’s motion to transfer the case
to Middletown and commenced the hearing. Leite was
called to testify first. Maluszewski—the guardian ad
litem—commenced the direct examination. The defen-
dant objected to Maluszewski’s examining Leite on the
ground that the plaintiff had the burden of proof.9 The
court overruled the defendant’s objection on the ground
that the court wanted the expert to testify first so that
she ‘‘did not sit here all day.’’10
At the conclusion of Leite’s testimony, Maluszuski
conducted a direct examination of the plaintiff. Despite
the then existing visitation orders, the plaintiff admitted
that the child spent at least 50 percent of her time with
the defendant and his family, who accommodated the
plaintiff’s work schedule when she waitressed.
The defendant then presented his case, calling the
following witnesses: Sandra Carbone, the defendant’s
then wife and the child’s stepmother; Lorraine Carbone,
the child’s paternal grandmother, who operated a day
care center and provided a room for the child in her
home; Amber Carbone, the child’s half sister, who is
the head teacher at a day care center affiliated with
Yale-New Haven Hospital; and the defendant himself.
Maluszeski also testified and was questioned by the
court and cross-examined by the defendant. At the con-
clusion of evidence,11 the defendant argued that the
plaintiff had not carried her burden with respect to
the motion for modification as there was insufficient
evidence regarding the plaintiff’s employment and
where she intended to reside.12
The court stated: ‘‘I’m satisfied that she’s met her
burden. The only issue that I have to decide is the last
one; what is in the best interest of this child taking
into account the criteria that are in the statute.’’ The
defendant also argued that the court was failing to con-
sider the defendant’s relationship with the child and
the improvements he had made in his ability to parent.
Moreover, the defendant argued, the child stated to
Leite and to Maluszewski that she did not want to move
to Texas and that Maluszweski recommended that the
child be provided with therapy to accommodate the
relocation.
Maluszewski argued that she believed that ‘‘the
child’s life will be enhanced economically, emotionally
if she’s to move to Texas because mom will have the
time available to spend with the child, as well as her
older son. I do defer to . . . Leite’s report as to the
best interest of the child. . . .
‘‘I do think that the relationship is going to be altered
drastically with dad, but I do think that it can be main-
tained with some of the recommendations that I’ve
made on the proposal. I think if, Your Honor, were open
to the idea that if mom has success with jobs in Texas
maybe the decision could be looked at again. I’m not
quite sure how that would be, how we could do that.
But I do think that mom has tried and done her best, and
I do think that [the parties’] relationship has improved,
however, I think she in a difficult position.’’ The par-
ties rested.
The parties returned to court on the following day.
The court stated: ‘‘I’ve been doing this a long time, both
as a lawyer and a judge, and I think this is probably as
difficult a case as I’ve ever had to decide. . . . I think
the most amazing factor in this case is the spirit of
cooperation that has developed between the two of you
over the last three or four years since you were in
Middletown. That never happens. I can’t even think of
a case that went to Middletown and then came back
and the people actually cooperated more later. So I give
you both tremendous credit for that.
‘‘And it’s obvious to me that you have a child that
you are both heavily invested in. But the bottom line
is, at this point, I am going to let you go to Texas. I
think that you maintained your burden of proof in this
matter. The relocation is clearly for a legitimate pur-
pose, and it’s clearly reasonable in light of that purpose.
And I am going to let her go. But . . . this may very
well not be the end of it, because I don’t know. I’m
going to look at this again in April or May, after the
bulk of the school year is out, and see how this year
plays out, because, it may not be the right thing to do.
But we’ll take it one step at a time.
‘‘What I want you to do now is I want you . . . oh,
and in terms of child support, I’m finding that the child
support numbers that are listed . . . I’m going to order
child support in accordance with the guidelines, which
is . . . $120, but I’m going to order you pay $50 a week
to her and you take $70 a week and set it aside. And
that’ll give you $3500 a year to spend on transportation
back and forth either for her or for you. . . . I really
think you have to go down there, and you have to go
to Texas and see her there. And I would hope that you’ll
have enough sense to do that.
‘‘Again, I’m going to look at this in April and see
where we’re at that particular point. There are no heroes
and villains in this case. It’s an impossible case.’’ The
court then ordered the parties to consider the child’s
school calendar and ‘‘figure out’’ the defendant’s visita-
tion with the child between now and April or May.13
After the court rendered its oral decision, the defen-
dant made an oral motion for an extension of time in
which to file an appeal and a motion for stay of the
court’s judgment. The court granted the motion for
extension of time to file an appeal, but denied the
motion for stay. The court stated: ‘‘I’m not keeping her
here while the appeal is . . . .’’
The transcript also disclosed that the court ordered
the parties to determine how and when the child would
visit the defendant. The transcript reveals that none of
the parties knew the school calendar, from where the
child would fly, whether there were direct flights avail-
able, and if airlines provided an escort service for chil-
dren. Moreover, the transcript reveals that the
approaching Thanksgiving holiday was approximately
one month away, reservations were difficult to obtain,
and the tickets were relatively expensive. The court
directed the defendant to pay for the child’s transporta-
tion. The plaintiff did not want the child to fly alone or
with an airline escort. The court directed the defendant
to pay for both the child and the plaintiff to return to
Connecticut for Thanksgiving. The defendant objected
that the burden was on the plaintiff to make the visita-
tion work.14 The court responded that if the defendant
could not pay for tickets for the plaintiff and the child,
the child would not visit.15 The defendant represented
the cost of obtaining tickets for the Thanksgiving and
Christmas visit and contended that he did not have the
financial resources available.16 The court ordered that
only $50 of weekly child support should be sent to
the plaintiff and that the defendant should apply the
remaining $70 to paying for tickets. Thereafter, the
court ordered the parties to return to court on March
19, 2014. The defendant filed this appeal on November
22, 2013.
II
CLAIMS ON APPEAL
The defendant claims that the court improperly
granted the plaintiff’s motion for modification by giving
the plaintiff permission to relocate prior to holding a
hearing, especially in light of the plaintiff’s failure to
carry her burden pursuant to § 46b-56d (a) and the
court’s failure to consider all of the factors set forth in
§ 46b-56d (b). We agree with the defendant.
‘‘As a general rule, [o]ur standard of review of a trial
court’s decision regarding . . . relocation orders is
one of abuse of discretion. . . . It is within the prov-
ince of the trial court to find facts and draw proper
inferences from the evidence presented. . . . Further,
[t]he trial court has the opportunity to view the parties
first hand and is therefore in the best position to assess
the circumstances surrounding a dissolution action, in
which such personal factors as the demeanor and atti-
tudes of the parties are so significant.’’ (Internal quota-
tion marks omitted.) Regan v. Regan, 143 Conn. App.
113, 118–19, 68 A.3d 172, cert. granted on other grounds,
310 Conn. 923, 77 A.3d 140 (2013). Where the appellant,
however, does not challenge the factual findings
directly but, rather, claims that she or he is challenging
the court’s conclusions based on its misapplication of
the governing law under the relocation statute, our
review of such claims is plenary, and we must determine
whether the court’s conclusions were legally and logi-
cally correct. Id., 119.
General Statutes § 46b-56d provides: ‘‘(a) In any pro-
ceeding before the Superior Court arising after the entry
of a judgment awarding custody of a minor child and
involving the relocation of either parent with the child,
where such relocation would have a significant impact
on an existing parenting plan, the relocating parent
shall bear the burden of proving, by a preponderance
of evidence, that (1) the relocation is for a legitimate
purpose, (2) the proposed location is reasonable in light
of such purpose, and (3) the relocation is in the best
interests of the child.
‘‘(b) In determining whether to approve the relocation
of the child under subsection (a) of this section, the
court shall consider, but such consideration shall not
be limited to: (1) Each parent’s reasons for seeking or
opposing the relocation; (2) the quality of the relation-
ships between the child and each parent; (3) the impact
of the relocation on the quantity and quality of the
child’s future contact with the nonrelocating parent; (4)
the degree to which the relocating parent’s and the
child’s life may be enhanced economically, emotionally
and educationally by the relocation; and (5) the feasibil-
ity of preserving the relationship between the nonrelo-
cating parent and the child through suitable visitation
arrangements.’’ (Emphasis added.)
It goes without saying that if a court announces a
decision prior to hearing evidence and argument, then
any purported hearing is no hearing at all. By stating
the result prior to hearing evidence and argument, the
court deprives the losing party of any hope of obtaining
a fair, impartial decision. The transcripts of October 2
and 9, 2013, demonstrate clearly that the court granted
the plaintiff permission to go to Texas with the child
prior to conducting a hearing. Despite the fact that the
court later conducted a hearing, the court’s ultimate
ruling on the motion for modification is irredeemably
tainted by its statements and rulings from the bench
on October 2 and 9, 2013. The taint of predetermination
is evident in the manner in which the court permitted
the plaintiff’s case to be presented, the evidence it was
willing to consider, the claimed deficiencies in the plain-
tiff’s evidence, and the court’s failure to consider all of
the factors in § 46b-56 (b). The court’s decision to per-
mit the plaintiff to relocate to Texas with the child prior
to conducting a hearing without emergent circum-
stances not only severely prejudiced the defendant17
but also constitutes plain error in that it tends to under-
mine the public’s confidence in our judicial system. See
State v. Brown, 73 Conn. App. 751, 756, 809 A.2d 546
(2002) (‘‘error is so obvious that it affects the fairness
and integrity of and public confidence in the judicial
proceedings’’ [internal quotation marks omitted]).
Generally, appellate courts presume that the trial
court knows and has applied the law correctly in the
absence of evidence to the contrary. See Blumenthal
v. Kimber Mfg., Inc., 265 Conn. 1, 9, 826 A.2d 1088
(2003). ‘‘[I]t is the burden of the appellant to show to
the contrary.’’ (Internal quotation marks omitted.) Id.
In this case, the defendant has carried his appellate
burden.
The relevant portion of § 46b-56d (a) provides that
‘‘the relocating parent shall bear the burden of proving
by a preponderance of the evidence, that (1) relocation
is for a legitimate purpose, (2) the proposed location
is reasonable in light of such purpose, and (3) the reloca-
tion is in the best interests of the child.’’ (Emphasis
added.) ‘‘The fair preponderance standard requires that
the evidence [induce] in the mind of the trier a reason-
able belief that it is more probably than otherwise that
the act in issue is true.’’ (Internal quotation marks omit-
ted.) State v. Davis, 229 Conn. 285, 291, 641 A.2d 370
(1994).
The defendant claims that the plaintiff failed to meet
her burden and that the evidence she presented was
confined to her prospective employment in her home
state of Texas and the amount of time she would have
to spend with the child and her one minor son. On the
basis of our review of the transcript of the hearing,
we agree that the plaintiff failed to present evidence
addressing all of the factors in § 46b-56d (b). Even the
court appeared to be skeptical of the plaintiff’s prof-
fered employment, as is reflected in the following collo-
quy that took place during the plaintiff’s direct
testimony.
‘‘Attorney Maluszewski: I was more referring to once
you move to Texas will you have more time available
to [the child] and your other son?
‘‘[The Plaintiff]: Yes. I would not be running around
working part-time jobs, waitressing jobs in the evening.
This opportunity is certainly going to afford me better
pay, more hours . . . .
‘‘The Court: But we don’t know that. I mean this is
. . . they could go out of business in a month.
‘‘Attorney Maluszewski: I mean I talked to the
designer so . . . .
‘‘The Court: Yeah, so what? How many restaurants
open and design places open and are gone in three
months. I mean hundreds and thousands of them. I
mean she’s not going to work for Apple.’’18
Moreover, the court’s uncertainty as to the degree
the plaintiff would be successful in her stated purpose
of relocating to Texas is further undermined by its order
that the parties return to court on March 19, 2014, for
a reassessment of the situation. The court stated: ‘‘And
I am going to let her go. But . . . this may very well
not be the end of it, because I don’t know. I’m going
to look at this again in April or May, after the bulk of
the school year is out, and see how this year plays out,
because, it may not be the right thing to do.’’ (Emphasis
added.) This order alone demonstrates that the plaintiff
failed to carry her burden.
The defendant also argues that the plaintiff failed to
provide any evidence regarding the child’s education
in Texas. The transcript supports the defendant’s con-
tention. When Maluszewski asked the plaintiff what
school system the child would attend, the court stated:
‘‘I’m not making this decision based on school,’’ not-
withstanding the fact that the statute explicitly provides
that the court consider how the child’s life may be
enhanced educationally. General Statutes § 46b-56d (b)
(4). Moreover, Leite testified that she did not investigate
any school system in Texas and that she did not know
whether the plaintiff had a home yet in Texas. In addi-
tion, the defendant contends that although the plaintiff
testified that the child has a close relationship with
him and his relatives, the plaintiff failed to sustain her
burden to prove a viable or suitable visitation schedule
to maintain those relationships.
Section 46b-56d (b) (5) requires that the court con-
sider ‘‘the feasibility of preserving the relationship
between the nonrelocating parent and the child through
suitable visitation arrangements.’’ The defendant’s con-
tention with respect to the lack of a viable means of
maintaining his relationship with the child finds support
in the transcript of October 19, 2013. At that time, after
granting the motion for modification, the court ordered
the parties to agree on how the child would visit the
defendant during the upcoming Thanksgiving and
Christmas holidays. It appears from the transcript that
no one had a copy of the school calendar or knew the
airports most convenient to the parties and the child’s
travel. The transcript discloses that neither the plaintiff
nor the defendant had the financial means to pay for
tickets during the high travel season. We are deeply
troubled by the court’s statement that the defendant
purchase roundtrip tickets for both the plaintiff and the
child or forgo a visit with the child. It was the plaintiff’s
burden to demonstrate the feasibility of travel neces-
sary to ensure that the child could maintain her relation-
ship with the defendant and his family. Cf. Miggins v.
Senofonte, Superior Court, judicial district of Hartford,
Docket No. FA-93-0390368-S (July 26, 1996) (relocating
parent had plan to accompany child on flights first year,
provide an 800 telephone number between nonrelocat-
ing parent and child).
Given that the plaintiff failed to present evidence on
all of the factors of § 46b-56d (b), the court could not
have considered all of them. The court issued a brief
oral decision, but it failed to supplement its oral deci-
sion with a comprehensive written memorandum of
decision. We recognize that certain situations may
require the court to render an immediate oral decision.
Generally, in such circumstances, the trial court later
issues a memorandum of decision. See, e.g., Wilson v.
Wilson, Superior Court, judicial district of Middlesex,
Docket No. FA-10-4012729-S (July 24, 2013) (sole basis
of father’s move to accept job in Florida); Rega v. Rega,
Superior Court, judicial district of Litchfield, Docket
No. FA-09-4008294-S (May 31, 2012) (mother moving
to North Carolina to be closer to her family and job
prospects); Mellor v. Payne, judicial district of Tolland,
Docket No. FA-01-0076477-S (February 23, 2007)
(mother moving for new husband’s employment, which
would bring substantial increase in income). In the
absence of evidence encompassing all of the § 46b-56d
(b) factors, we are compelled to conclude that the court
did not consider them all in reaching its decision.
Moreover, there appears to be no evidentiary basis
for the court to have found that it was in the best
interests of the child for the plaintiff to relocate with
her to Texas. The absence of § 46b-56d (b) evidence
supports the defendant’s position that the court pre-
judged the motion for modification prior to holding a
hearing. For the foregoing reasons, we conclude that
the court improperly granted the plaintiff’s motion
for modification.
The judgment is reversed and the case is remanded
for further proceedings according to law.
* March 6, 2015, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
This appeal was scheduled for oral argument before this court on Febru-
ary 2, 2015. Several days prior to oral argument, the plaintiff requested a
continuance. The parties, however, agreed to waive oral argument. Counsel
was not appointed for the child’s guardian ad litem, Attorney Katarzyna
Maluszewski. No brief or statement, therefore, was filed pursuant to Practice
Book § 67-13.
2
Section 46b-56d is commonly known as the relocation statute.
3
The defendant also claims that the court improperly denied his motion
to transfer the case to the Regional Family Docket in Middletown. As this
claim is not likely to recur on remand, we decline to consider it. Given our
conclusion that the plaintiff failed to meet her burden under § 46b-56d and
that the court failed to consider all of the factors enumerated in the statute,
we need not decide the defendant’s claim that there had been no substantial
change in circumstances since May 12, 2010.
The defendant claims as well that the court improperly denied his motion
for articulation. The defendant, however, failed to file a motion for review,
which is the remedy for the denial of a motion for articulation. See Practice
Book §§ 66-5 and 66-7. We therefore decline to review the claim. See Rivnak
v. Rivnak, 99 Conn. App. 326, 335, 913 A.2d 1096 (2007).
4
The trial court did not issue a memorandum of decision when it granted
the plaintiff’s motion for modification. Although this court does not make
factual findings; Zhuta v. Tartaglia, 135 Conn. App. 113, 117, 43 A.3d 183
(2012); the transcript of the proceedings before the court discloses the
factual basis of the defendant’s claims on appeal.
5
Each of the parties was represented by counsel at the time of dissolution.
The plaintiff filed the 2013 motion for modification as a self-represented
party and was not represented by counsel during the proceedings at issue.
6
‘‘In all cases in which the court deems appropriate, the court shall . . .
appoint a person, other than the person appointed to represent the minor,
as guardian ad litem for such minor to speak on behalf of the best interests
of the minor . . . .’’ (Internal quotation marks omitted.) In re DeLeon J.,
290 Conn. 371, 374 n.6, 963 A.2d 53 (2009).
7
The file contains an order issued by Judge Dolan that the parties were
to appear on October 9, 2013, for a status conference.
8
In moving to have the case transferred to Middletown, Morrocco stated:
‘‘The basis of the motion was that this is the second time this plaintiff has
filed this motion to transfer . . . to allow her to relocate out of state. The
first time it was heard it was heard in Middletown . . . and the court’s
orders are that she would withdraw that case. And . . . there were things
that [the defendant] had to do, he did those. And since then for three years,
for three years, he’s done everything he was supposed to do. Things have
gotten better. Now she filed this motion again, second time. My understand-
ing is that this matter should have been heard and should have been contin-
ued to be heard in Middletown in front of the Regional Family Docket.’’
9
The colloquy regarding the plaintiff’s objection follows.
‘‘Attorney Morrocco: Your Honor, I’m going to object. This is the motion
of the plaintiff. She has the burden of proof.
‘‘The Court: Right. I agree.
‘‘Attorney Morrocco: This is not . . . this is not the witness for the [guard-
ian ad litem]. So the burden of proof is upon the plaintiff. The plaintiff has
a burden to overcome according to the new statute and in accordance with
existing case law in Connecticut.
‘‘The Court: Right. But I’m going to still let her testify now because I’m
not going to have her sit here all day.
‘‘Attorney Morrocco: But it’s the burden of the . . . .
‘‘The Court: I know what the burden is.’’
We note that § 46b-56d provides in relevant part that ‘‘the relocating
parent shall bear the burden of proving [the factors], by a preponderance
of the evidence . . . .’’ (Emphasis added.)
10
The plaintiff did not offer Leite’s report as evidence. Her report, however,
was placed into evidence at the request of the court.
11
During the presentation of evidence, the court repeatedly stated that it
would not hear any evidence regarding contact between the child and the
defendant’s son from a prior marriage, who is alleged to have had inappropri-
ate contact with the child prior to 2009. The court, however, ordered that
the child have no contact with that son.
12
The following colloquy occurred during closing argument.
‘‘Attorney Morrocco: I don’t think she’s proved . . . by a preponderance
of the evidence. I don’t believe that the report from . . . Leite was that
strong. If the court wants her to go this is what I think should be done. She
didn’t say that it’s overwhelming evidence that the mother should leave, it’s
all financial. Read the report, it says financial. She can get a better job. How
do we know? How do we know she’s going to get a better—it can be one
month and then what do we do, we rip this all away from the child? We
rip the family apart and say you can leave now. If she wants to get a job,
look for a job down there, give her an opportunity and come back with
something substantive. . . .
‘‘The Court: She’s got a job.
‘‘Attorney Morrocco: I don’t know. She’s saying she has a job with some
lady as a startup company that they’re opening up by having a ribbon
cutting on the twenty-second. I don’t know the name, I don’t know who the
supervisor is. That’s all her word.
‘‘The Court: I’m not worried about any of that. I’m worried about whether
or not the place is going to be open in three months from now.
‘‘Attorney Morrocco: Right. And then all of a sudden we rip this family
. . . apart.’’ (Emphasis added.)
13
The court also stated: ‘‘I’m going to do one other thing, sir, that I’ve
never done before, and it’s no reflection on the guardian ad litem, but if
I’m going to look at this thing, and you don’t need to give me an answer
now . . . because I want him to feel that he’s being treated fairly. I have
no question at all that the guardian ad litem has acted appropriately in this
case, but if he wants a new guardian ad litem to look at this thing when
we look at it in April then I will . . . then I will appoint a new guardian
ad litem. And again . . . it’s no reflection on her. I have no criticism on
the job that she did, and I’m not shy if people have done something that I
thought was shoddy. And, I appreciate the work that you put in on this
case, but it’s also important to me that your client feel like he’s getting a
fair shake in this. Because, as I said, there are no heroes and no villains.’’
14
The following colloquy occurred:
‘‘The Court: [S]o that if he spends $1500 on airfare for her and I . . . just
knocked $3500 off his child support . . . I’m not going to make her pay
the difference.
‘‘Attorney Morroco: She’s just . . . starting a job, Your Honor, she can
take all this time off now? It’ll be Christmas in a week.
‘‘The Court: All right. Fine, $120 . . . they split the airfare for the child.
You want to do that? I’ll order that.
‘‘Attorney Morrocco: No. No, Your Honor. You’re putting the burden on
him to pay for her ticket.
‘‘The Court: No, no, $70 times twenty-six weeks is how much?
‘‘The Clerk: $1820.
‘‘The Court: All right. And how many tickets is he going to be buying?
‘‘Attorney Morrocco: Six.
‘‘The Court: No he’s going to be buying three roundtrip tickets. . . .
‘‘Attorney Morrocco: For two people.
‘‘The Court: Right. And if it’s anything more than . . . $1800 she has to
pay him. But I’m not going to . . . he’s not going to make money on the
deal. I’m not going to make her . . .
‘‘I know. And that’s all I’m saying, is these are costs because otherwise
she’s going to come back and tell me she can’t afford to fly and then what
are we going to do?
‘‘Attorney Morrocco: You pay $25 to the airlines and they will escort the
child from airline to airline.
‘‘The Court: Really?
‘‘Attorney Morrocco: That’s why you want a direct flight. . . .
‘‘The Court: And if you don’t have a direct flight. . . you want to send
your kid . . .
‘‘[The Defendant]: I don’t want her to move.
‘‘The Court: I understand but she’s . . . .
‘‘[The Defendant]: But this should have been thought of then if we’re
flying that far.
‘‘The Court: Sir, she’s going.
‘‘[The Defendant]: I get it.
‘‘The Court: There’s nothing we can do about that now.
‘‘[The Defendant]: I know. The family . . . isn’t as important as her job.
‘‘The Court: The question is, do you want that child to fly alone? I don’t
even know if they let a seven year old fly . . . .
‘‘[The Defendant]: This must have been looked into.
‘‘Attorney Maluszewski: Some airlines do require like a $50 accommoda-
tion fee.
‘‘The Court: Well, that’s fine.
‘‘Attorney Maluszewski: But I think seven is a little young. . . . Why
doesn’t he call the airlines and find this out, come back Friday and talk to
the Court.
‘‘[The Defendant]: Because we’re talking about in a month I have to come
up with what, $800 to fly them both back? It’s a month away. I’m not going
to save that much in that time. I have other kids to raise . . . I have a
mortgage to pay, I have with attorneys and everything.
‘‘The Court: Sir, I’m not going to make you pay more than the child support
amount. . . . I want you to find out where you’re going to fly from, how
much it’s going to cost, then we’ll figure out how we’re going to do it.’’
15
The transcript discloses the following colloquy.
‘‘The Court: So why don’t you just book the ticket now?
‘‘[The Defendant]: Who has the money, Your Honor, right now?
‘‘The Court: What the 348?
‘‘[The Defendant]: Yes, I have five children. I just paid my daughter to go
to college. And I didn’t bring this on that’s why I’m . . . that’s why I tried
and tried.
‘‘The Court: Sir, I’m not going to refight the war.
‘‘[The Defendant]: I understand that, but I’m just telling you my point of it.
‘‘The Court: All right. Well, then if you can’t buy the ticket the, the child
isn’t going to come.
‘‘[The Defendant]: Okay. So you’re taking her away than you’re saying?
‘‘The Court: Sir, don’t do this.
‘‘[The Defendant]: This isn’t funny, Lisa.
‘‘The Court: Nobody thinks it’s funny.
‘‘[The Defendant]: Well, she’s laughing.
‘‘The Court: She’s not laughing.
‘‘Attorney Morrocco: All right. I don’t know what to do now.
‘‘The Court: No, just he’s got to find a flight. That’s all. And there’s no
sense coming back on Friday. Find a flight and if he can get a flight a
roundtrip ticket direct then we’ll put the child on the flight. But if you can
go on Spirit at 348, you might as well do it.’’
16
The court stated: ‘‘He can borrow the money from his parents.’’
17
We note that the court itself seemed to have doubts about whether the
defendant received fair treatment, as it stated that the defendant may request
the appointment of a new guardian ad litem at the time the court reviewed
its decision in March, 2014. See footnote 13 of this opinion.
18
The plaintiff presented evidence that she was to be paid $30,000 a year
to manage a design store for a new business in an unidentified location
in Texas.