Firstenberg v. Madigan , 188 Conn. App. 724 ( 2019 )

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OLIVIA ANNA FIRSTENBERG v.
MATTHEW C. MADIGAN
(AC 39771)
Alvord, Bright and Norcott, Js.
Syllabus
The proposed intervenor, F, appealed to this court from the judgment of
the trial court denying his motion to intervene in a custody action
brought by the plaintiff mother against the defendant father with respect
to the parties’ minor child. After the trial court rendered judgment
granting the parties joint legal custody of the minor child in accordance
with their parenting access agreement, F, who is the minor child’s mater-
nal grandfather, filed a motion to intervene in which he allegedly sought
third-party visitation pursuant to the applicable statute (§ 46b-59 [b]).
The trial court denied the motion to intervene, from which F appealed
to this court, claiming, inter alia, that the trial court incorrectly construed
his motion to intervene as seeking custody pursuant to the applicable
statute (§ 46b-57), when the motion sought visitation with the minor
child pursuant to § 46b-59 (b). Held that, even if F’s motion to intervene
was in fact a petition for visitation, the trial court lacked subject matter
jurisdiction over the petition because it failed to meet the threshold
jurisdictional requirements of § 46b-59 (b) for a third party seeking
visitation, as it did not sufficiently allege that F had a parent-like relation-
ship with the minor child or that the denial of visitation would result
in real and significant harm to the minor child: although F generally
alleged that he had a loving relationship with the minor child, the petition
focused almost entirely on the defendant’s conduct and fitness as a
parent and was devoid of any specific, good faith allegations that F
acted in a parental type of capacity to the minor child or that the denial
of visitation would cause real and significant harm akin to neglect of the
minor child; accordingly, because the trial court did not have jurisdiction
over the purported petition for visitation, it should have rendered judg-
ment dismissing the petition instead of denying it.
Argued December 3, 2018—officially released March 26, 2019
Procedural History
Action for custody of the parties’ minor child, brought
to the Superior Court in the judicial district of Fairfield,
where the court, Sommer, J., rendered judgment grant-
ing the parties joint legal custody of the minor child in
accordance with the parties’ agreement; thereafter, the
court denied the motion to intervene filed by the minor
child’s maternal grandfather, and the maternal grandfa-
ther appealed to this court. Improper form of judgment;
judgment directed.
Eric Firstenberg, self-represented, the appellant
(maternal grandfather).
David A. McGrath, with whom was Carla Zahner,
for the appellee (defendant).
Opinion
NORCOTT, J. This appeal stems from a custody
action between the plaintiff, Olivia Anna Firstenberg,
and the defendant, Matthew C. Madigan, regarding their
minor child. The appellant, Eric Firstenberg (appellant),
the child’s maternal grandfather, appeals from the judg-
ment of the trial court denying his motion to intervene
in the custody action under General Statutes § 46b-57.1
On appeal, the appellant raises a number of claims,
including that the court improperly interpreted his
motion seeking visitation pursuant to General Statutes
§ 46b-592 as a motion to intervene seeking custody. We
conclude that even if we assume, arguendo, that the
appellant’s motion to intervene was in fact a petition
for visitation, as the appellant contends, he has failed to
satisfy the threshold jurisdictional requirements under
§ 46b-59. Accordingly, we reverse the judgment of the
court and remand the case with direction to dismiss
the petition for visitation for lack of subject matter juris-
diction.
The following facts are relevant on appeal. The plain-
tiff and the defendant are the unmarried parents of a
child born in July, 2011. The plaintiff filed a custody
application in October, 2013. Throughout the pendency
of the litigation the appellant filed numerous motions
to intervene. On June 24, 2015, the plaintiff and the
defendant, at the time the only parties to the custody
action, entered into a parenting access agreement
regarding the custody of their minor child. After this
agreement was reached, the appellant, on August 27,
2015, filed the operative motion to intervene wherein
he allegedly sought visitation pursuant to § 46b-59.3
The August 27, 2015 motion focused largely on the
past conduct of the defendant, as the appellant sought
to put the fitness of the defendant as a parent at issue.
Of the appellant’s eleven page motion, only three sen-
tences mention the nature of the appellant’s relation-
ship with the minor child. First, when recounting an
outburst of the minor child toward the appellant after
the minor child returned from a visit with the defendant,
the appellant stated, ‘‘I have a loving relationship with
my grandson—his behavior toward me was out of char-
acter and alarming.’’ The only other references in the
appellant’s motion pertaining to his relationship with
his grandson were the statements, ‘‘I am the proud
father of [the plaintiff] and the adoring, maternal grand-
father of [the minor child],’’ and ‘‘I love my daughter and
grandson to infinity and beyond.’’ The motion contained
not a single allegation regarding any harm the minor
child would suffer if the appellant’s request for visita-
tion was denied. Additionally, the relief requested in
the motion focused solely on the defendant. Specifi-
cally, the appellant requested that ‘‘(1) [his] motion to
intervene be granted as it is in the best interest of the
minor child . . . (2) [the] defendant be held in con-
tempt for deliberately and wilfully committing fraud on
the court in connection with the ex parte hearing; (3)
as ordered by Judge Sommer, the parties’ June 24, 2015
agreement be nullified as it is not in the best interest
of the minor child . . . (4) [the defendant’s attorney]
be held in contempt for his failure to inform the court
of the material misrepresentations he made to the court
in connection with the ex parte proceeding; (5) further
fact-finding take place to determine if [the] defendant
tampered with the e-mail dated April 22, 2015; [and] (6)
[the] defendant be ordered to receive ongoing psychiat-
ric treatment with report backs to the court.’’ Nowhere
in the appellant’s request for relief was visitation men-
tioned.
The court heard argument on the appellant’s motion
at a hearing held on October 15, 2015, at which the
plaintiff, the defendant, their respective attorneys, and
the appellant were present. At the hearing, the court
questioned the appellant as to why intervention should
be granted when both parents were represented by
counsel and had actively participated in the case. The
gravamen of the appellant’s argument was simply that
‘‘the Connecticut Supreme Court said if there [was] a
claim that one of the parents [was] unfit, the standard
of review would be different [than articulated in Roth
v. Weston, 259 Conn. 202, 789 A.2d 431 (2002).]’’ No
evidence was presented at the hearing.
On February 26, 2016, the appellant filed a motion
seeking to have his motion to intervene reassigned to
another judge because the court had not issued a deci-
sion on the underlying matter within 120 days as
required by Practice Book § 11-19 (b) and the parties
had not agreed to waive the time limit. The court, on
March 1, 2016, issued an order granting the appellant’s
motion to intervene, finding that he had ‘‘satisfied the
requirements of [§] 46b-59 (b) by clear and convincing
evidence that a parent-like relationship exists and
denial of visitation would cause harm to the child.’’
The defendant subsequently filed a motion to reargue
in which he claimed that the court had not applied
§ 46b-59 properly because the order contained a finding
of ‘‘harm’’ instead of ‘‘real and significant harm’’ as
required under the statute. The court granted the
motion to reargue and issued a memorandum of deci-
sion in which it vacated its prior order and denied the
appellant’s motion to intervene. Although the basis for
the defendant’s motion to reargue was that the court
had applied the wrong standard for harm under § 46b-
59, the court denied the motion to intervene under a
custody analysis pursuant to § 46b-57.4
On appeal the appellant raises numerous arguments
pertaining to the court’s granting of the defendant’s
motion to reargue and its resultant denial of the appel-
lant’s motion to intervene. Of particular relevance to our
analysis, the appellant argues that the court incorrectly
considered his motion to intervene as seeking custody
pursuant to § 46b-57, when he was actually seeking
visitation under § 46b-59. In response, the defendant
argues that if the appellant’s motion is treated as a
petition for visitation, then it should have been dis-
missed for lack of subject matter jurisdiction, as it failed
to meet the jurisdictional requirements imposed by
§ 46b-59. We agree with the defendant.
We begin by setting forth the applicable law and
standard of review. ‘‘At the outset, we note our well
settled standard of review for jurisdictional matters. A
determination regarding a trial court’s subject matter
jurisdiction is a question of law. When . . . the trial
court draws conclusions of law, our review is plenary
and we must decide whether its conclusions are legally
and logically correct and find support in the facts that
appear in the record.’’ (Internal quotation marks omit-
ted). Clements v. Jones, 71 Conn. App. 688, 690, 803
A.2d 378 (2002). To determine whether the court had
jurisdiction over a petition for visitation, we compare
the allegations of the petition to the statutorily pre-
scribed jurisdictional requirements. See Roth v. Weston,
supra, 259 Conn. 235
Viewing the appellant’s motion as a petition for visita-
tion, § 46b-59 is the controlling statute.5 Section 46b-59
(b) allows any person to ‘‘submit a verified petition to
the Superior Court for the right of visitation with any
minor child.’’ In order for the court to have jurisdiction,
the petition must include ‘‘specific and good-faith alle-
gations that (1) a parent-like relationship exists
between the person and the minor child, and (2) denial
of visitation would cause real and significant harm.’’
General Statutes § 46b-59 (b). Once these jurisdictional
requirements are met, the petitioner must then prove
these allegations by clear and convincing evidence.
General Statutes § 46b-59 (b).
The defendant argues that the appellant failed to
allege specific facts supporting either of the required
elements. The appellant argues that his motion to inter-
vene contained specific and good faith allegations that
he had a parent-like relationship with his grandson and
that denial of visitation would cause real and substantial
harm. We agree with the defendant.6
We conclude that viewed as a petition for visitation,
the appellant’s August 27, 2015 motion to intervene
failed to meet the jurisdictional requirements of § 46b-
59 (b). First, the appellant’s motion did not contain
specific allegations that he has a parent-like relationship
with his grandson. Section 46b-59 (c) enumerates nine
nonexclusive factors that the court may consider in
determining whether a petitioner has a parent-like rela-
tionship with a minor child. Such factors include ‘‘(1)
[t]he existence and length of a relationship between
the person and the minor child prior to the submission
of a petition pursuant to this section; (2) [t]he length
of time that the relationship between the person and
the minor has been disrupted; (3) [t]he specific parent-
like activities of the person seeking visitation toward
the minor child; (4) [a]ny evidence that the person seek-
ing visitation has unreasonably undermined the author-
ity and discretion of the custodial parent; (5) [t]he
significant absence of a parent from the life of a minor
child; (6) [t]he death of one of the minor child’s parents;
(7) [t]he physical separation of the parents of the minor
child; (8) [t]he fitness of the person seeking visitation;
and (9) [t]he fitness of the custodial parent.’’ General
Statutes § 46b-59 (c).
As noted previously in this opinion, the appellant’s
motion focused almost entirely on the defendant’s con-
duct and his fitness as a parent. It was substantially
devoid of any specific and good faith allegations that
would give rise to a parent-like relationship between
the appellant and the minor child. As we have noted,
the motion merely alleged that the appellant has a loving
relationship with his grandson and loves his daughter
and grandson ‘‘to infinity and beyond.’’ These broad
statements regarding a loving relationship fail to satisfy
the statutory requirements of § 46b-59 (b) and (c),
which require specific, good faith allegations that the
appellant and minor child share a parent-child relation-
ship. See Crockett v. Pastore, 259 Conn. 240, 248, 789
A.2d 453 (2002). Our Supreme Court in Crockett, when
considering allegations substantially similar to the
appellant’s, concluded that ‘‘it is the nature of the rela-
tionship, not the nomenclature, that satisfies the consti-
tutional mandate.’’ Id. Therefore, the appellant was
required to plead that his relationship with the child
was such that he ‘‘acted in a parental type of capacity
for an extended period of time.’’ Id; see also General
Statutes § 46b-59 (c) (1). The appellant’s motion did not
contain specific factual allegations that he has acted in
a parental type of capacity with respect to his grandson.
The appellant argues that it was not necessary for
him to meet the requirements of § 46b-59 (c) because
he alleged that he previously had established a parent-
like relationship under § 46b-59 (d). Section 46b-59 (d)
states that ‘‘[i]n determining whether a parent-like rela-
tionship exists between a grandparent seeking visita-
tion pursuant to this section and a minor child, the
Superior Court may consider, in addition to the factors
enumerated in subsection (c) of this section, the history
of regular contact and proof of a close and substantial
relationship between the grandparent and the minor
child.’’ (Emphasis added). The appellant’s argument
fails for two reasons. First, the plain language of this
subsection reveals that subsection (d) is not to be read
in isolation. Rather, the regular contact and close rela-
tionship factors in subsection (d) must be considered
in addition to those factors enumerated in subsection
(c), which include, inter alia, the specific parent-like
activities of the person seeking visitation toward the
minor child. The appellant’s conclusory allegation that
he previously had established a parent-like relationship
with his grandson is, alone, insufficient to establish a
close and substantial relationship. Second, § 46b-59 (d)
requires that the petitioner prove the close and substan-
tial relationship. Section 46b-59 (b) makes clear that the
issue of sufficient proof is reached only if the petition
contains specific and good faith allegations that a par-
ent-like relationship exists in the first place. See also
Roth v. Weston, supra, 259 Conn. 235. In other words,
the court may reach whether a petitioner has proven
§ 46b-59 (d), if and only if, the petitioner made specific
and good faith allegations that a parent-like relation-
ship exists.
The appellant further argues that the court should
have looked beyond his motion and reviewed the entire
record to determine whether he had a parent-like rela-
tionship with his grandson. Specifically, the appellant,
referring to a previous motion to intervene that the
court denied, argues that the ‘‘court noted the close
and nurturing relationship that [he had] maintained with
[his] grandson since birth.’’ The passing observations
of a court made in connection with a prior motion
are irrelevant to whether the current motion meets the
statutorily prescribed requirements for the court to
have jurisdiction over the motion. The law is clear that
whether the petitioner alleged the required jurisdic-
tional elements is determined by ‘‘examin[ing] the alle-
gations of the petition and compar[ing] them to the
[statutorily prescribed] jurisdictional requirements
. . . .’’ (Emphasis added.) Roth v. Weston, supra, 259
Conn. 235; see also Fennelly v. Norton, 103 Conn. App.
125, 139, 931 A.2d 269 (‘‘[b]ecause the defendant’s
motion to dismiss for lack of jurisdiction was predicated
on the insufficiency of the application for visitation, it
was inappropriate for the court to look beyond that
pleading and permit the plaintiffs to augment the appli-
cation with additional allegations at the evidentiary
hearing’’), cert. denied, 284 Conn. 918, 931 A.2d 936
(2007); Fuller v. Baldino, 176 Conn. App. 451, 456 n.4,
168 A.3d 665 (2017) (noting that case law suggests that
‘‘courts determining whether the jurisdictional require-
ments of Roth have been satisfied cannot look beyond
the four corners of the application itself’’). In light of
the appellant’s failure to allege a parent-like relationship
in his motion, he has failed to satisfy the first jurisdic-
tional requirement under § 46b-59 (b).
Moreover, the defendant argues that the motion to
intervene failed to sufficiently allege that the denial of
visitation will cause real and significant harm to the
minor child. In order to succeed on this requirement,
the appellant must have alleged that the ‘‘denial of
visitation would cause real and significant harm.’’
(Emphasis added.) General Statutes § 46b-59 (b); see
also Crockett v. Pastore, supra, 259 Conn. 249–50. Sec-
tion 46b-59 (a) (2) defines ‘‘[r]eal and significant harm’’
to mean ‘‘that the minor child is neglected, as defined
in [General Statutes §] 46b-120, or uncared for, as
defined in said section.’’7
The appellant’s motion failed to allege that the minor
child will suffer real and significant harm if his petition
for visitation is denied. In his motion, the appellant
made several unsubstantiated allegations about the
defendant and his attorney. None of these allegations,
however, directly addresses the type of real and sub-
stantial harm contemplated by §§ 46b-59 and 46b-120.
Nor did the appellant’s motion allege that these harms
would be reduced if visitation were granted. The statute
is clear and unambiguous that a petition for visitation
must make specific, good faith allegations that the
minor child will suffer real and significant harm akin
to neglect if visitation were denied. Because the appel-
lant’s motion made no reference to the type of harm
the minor child would endure if visitation were denied,
his motion lacked the necessary allegations for the
court to have subject matter jurisdiction.
This conclusion is further supported by the appel-
lant’s concession before this court that his grandson
would not be harmed were he not permitted visitation.
The appellant, in his reply brief, stated, ‘‘I am certainly
not claiming that I am being denied visitation with my
grandson or that my grandson would suffer immensely
were he not permitted to see me.’’
Because the appellant’s motion failed to include ‘‘spe-
cific and good-faith allegations that (1) a parent-like
relationship exists between [the appellant] and the
minor child, and (2) denial of visitation would cause real
and significant harm,’’ it did not meet the jurisdictional
thresholds of § 46b-59 (b). Consequently, we conclude
that the trial court did not have jurisdiction over the
appellant’s petition for visitation.
The form of the judgment is improper, the judgment
denying the appellant’s petition for visitation is reversed
and the case is remanded with direction to render judg-
ment dismissing the petition for visitation.
In this opinion the other judges concurred.
1
General Statutes § 46b-57 provides: ‘‘In any controversy before the Supe-
rior Court as to the custody of minor children, and on any complaint under
this chapter or section 46b-1 or 51-348a, if there is any minor child of either
or both parties, the court, if it has jurisdiction under the provisions of
chapter 815p, may allow any interested third party or parties to intervene
upon motion. The court may award full or partial custody, care, education
and visitation rights of such child to any such third party upon such condi-
tions and limitations as it deems equitable. Before allowing any such inter-
vention, the court may appoint counsel for the minor child or children
pursuant to the provisions of sections 46b-12 and 46b-54. In making any
order under this section, the court shall be guided by the best interests of
the child, giving consideration to the wishes of the child if the child is of
sufficient age and capable of forming an intelligent preference.’’
2
General Statutes § 46b-59 (b) provides: ‘‘Any person may submit a verified
petition to the Superior Court for the right of visitation with any minor
child. Such petition shall include specific and good-faith allegations that (1)
a parent-like relationship exists between the person and the minor child,
and (2) denial of visitation would cause real and significant harm. Subject
to subsection (e) of this section, the court shall grant the right of visitation
with any minor child to any person if the court finds after hearing and by
clear and convincing evidence that a parent-like relationship exists between
the person and the minor child and denial of visitation would cause real
and significant harm.’’
3
Section 46b-57 ‘‘assigns the court discretionary power to permit interven-
tion upon motion by any interested third party or parties. . . . A prerequisite
to that intervention, however, is the existence of a controversy. . . . Inter-
vention is a device which enables one who was not originally a party to an
action to become such a party on his own initiative. . . . The intervenor’s
posture is derivative; he assumes his role only by virtue of an action already
shaped by the original parties. He must, therefore, take his controversy as
he finds it and may not use his own claims to restyle or resuscitate their
action.’’ (Citation omitted; footnote omitted; internal quotation marks omit-
ted). Manter v. Manter, 185 Conn. 502, 505–506, 441 A.2d 146 (1981). In the
present case, the appellant filed his motion to intervene after the plaintiff
and defendant reached an agreement that specifically addressed custody.
It appears that there was no controversy for the appellant to insert himself
into. Nevertheless, when reviewing the timeliness of an intervention as it
relates to the status of the original parties’ dispute, the standard of review
is abuse of discretion. See id., 507. Furthermore, the court did not make a
determination on the timeliness of the motion, and, therefore, in light of
our conclusion that the court lacked jurisdiction to consider the appellant’s
motion, we need not consider whether a controversy existed when the
appellant filed his motion to intervene.
4
The fact that the court engaged in a custody analysis was likely due, at
least in part, to what the appellant set forth in his motion to intervene. As
previously noted, the appellant’s motion focused solely on the past conduct
of the defendant. Although the motion cited to § 46b-59, the third party
visitation statute, the motion made no further reference to visitation. In
fact, the motion’s request for relief did not mention visitation; instead, it
sought nullification of the parties’ parenting access agreement, sanctions
against the defendant and his counsel, and an order requiring the defendant
to undergo psychiatric treatment.
5
Section 46b-59 was amended in 2012 to essentially codify the judicial
gloss the Supreme Court put on the then existing version of § 46b-59 in
Roth. In Roth, the court concluded that, without the proper gloss, § 46b-59,
as enacted at that time, would be subject to application in a manner that
would be unconstitutional. Roth v. Weston, supra, 259 Conn. 233–34. The
court concluded that implicit in the statute was a rebuttable presumption
that visitation that is opposed by a fit parent is not in the child’s best
interests. Id., 234. Additionally, the court concluded that in order to avoid
constitutional infirmity, a petition for visitation must include specific, good
faith allegations both that the petitioner has a parent-like relationship with
the child and that the denial of visitation would cause real and significant
harm to the child. Id., 234–35.
6
We note that the § 46b-59 (b) also requires that the petition be verified.
The appellant’s petition was not verified. This failure alone would also
require dismissal of the appellant’s petition.
7
Under § 46b-120 (4), ‘‘[a] child may be found ‘neglected’ who, for reasons
other than being impoverished, (A) has been abandoned, (B) is being denied
proper care and attention, physically, educationally, emotionally or morally,
or (C) is being permitted to live under conditions, circumstances or associa-
tions injurious to the well-being of the child.’’ Under § 46b-120 (6), ‘‘[a] child
may be found ‘uncared for’ (A) who is homeless, (B) whose home cannot
provide the specialized care that the physical, emotional or mental condition
of the child requires, or (C) who has been identified as a victim of trafficking,
as defined in [General Statutes §] 46a-170.’’