Lugo v. Lugo , 176 Conn. App. 149 ( 2017 )

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WILLIAM LUGO v. TERESA LUGO
(AC 38800)
Mullins, Beach and Harper, Js.
Syllabus
The defendant, whose marriage to the plaintiff previously had been dis-
solved, appealed to this court from the judgment of the trial court
granting the plaintiff’s postjudgment motion for modification of the
parenting plan concerning the parties’ minor child as set forth in the
parties’ separation agreement, which had been incorporated into the
dissolution judgment. Under the separation agreement, the parties
shared joint legal and physical custody of the child with a shared parent-
ing plan. The plaintiff sought a modification of the parental access orders
to allow him to have additional time with the child. Prior to a hearing
on the motion for modification, the plaintiff filed his compliance with
trial management orders, in which he requested sole custody of the
minor child, and the trial court denied, inert alia, the defendant’s motion
in limine, in which she sought to preclude the admission of evidence
on the issue of a change in custody. Following a hearing on the motion
for modification, which was held on three days over a period of three
months, the trial court awarded the plaintiff sole legal custody of the
minor child. On appeal, the defendant claimed, inter alia, that the trial
court improperly awarded sole custody to the plaintiff when the plaintiff
failed specifically to include a claim for sole legal custody in his motion
for modification, as required by the applicable rule of practice (§ 25-
26), and, thus, that she lacked adequate notice that a change in legal
custody was contemplated. Held that the trial court did not err in granting
the plaintiff sole legal custody of the parties’ minor child; although the
plaintiff’s motion for modification did not specifically request the relief
of sole legal custody, the record showed that the defendant had notice
that custody issues would be raised at the hearing, as the motion specifi-
cally requested a broader role for the plaintiff and the defendant had
at least several months to prepare for the hearing on the motion for
modification following the denial of her motion in limine concerning
the issue of a change in custody, and because the defendant failed to
provide this court with the transcripts of the three day hearing on the
motion for modification, this court was unable to find an abuse of
discretion by the trial court or to determine that the defendant was
harmed by any degree of curtailed notice.
Argued April 17—officially released September 5, 2017
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Hartford, and tried to the court, M. Taylor, J.;
judgment dissolving the marriage and granting certain
other relief in accordance with the parties’ agreement;
thereafter, the court, Ficeto, J., granted the plaintiff’s
motion for modification, and the defendant appealed
to this court. Affirmed.
Derek V. Oatis, for the appellant (defendant).
Campbell D. Barrett, with whom were Johanna S.
Katz and, on the brief, Jon T. Kukucka, for the appel-
lee (plaintiff).
Opinion
BEACH, J. The defendant, Teresa Lugo, appeals from
the trial court’s judgment granting the postdissolution
motion for modification filed by the plaintiff, William
Lugo. On appeal, the defendant claims that the court
erred in (1) granting the plaintiff’s motion for modifica-
tion by awarding the plaintiff sole legal custody of the
minor child, and (2) denying her motion in limine seek-
ing to prevent consideration of the question of sole
legal custody. We affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant. The parties were married on July 12, 2003. They
have one minor child. In 2008, the plaintiff filed for a
divorce. On August 10, 2010, the court, M. Taylor, J.,
rendered a judgment of dissolution that incorporated
by reference a separation agreement entered into by
the parties. The separation agreement provided that
‘‘[t]he parties shall have joint legal and shared physical
custody of the minor child with a shared parenting plan
for their child.’’
On April 10, 2014, the plaintiff filed a motion for
modification in which he noted that the parties had
joint legal and shared custody of the minor child and
had a specific parenting schedule. He stated that ‘‘the
current orders are not in the best interest of the minor
child. The plaintiff respectfully requests that the court
modify the parenting plan by altering the parties’ parent-
ing time to allow more time with the plaintiff father.’’
The defendant requested that the court ‘‘modify the
parental access orders to allow additional time with
the plaintiff father, and such other and further relief as
the court deems equitable.’’
A hearing on the motion was scheduled for Septem-
ber 3, 2015. On August 24, 2015, the plaintiff filed his
compliance with trial management orders; in his com-
pliance, he requested sole custody of the minor child.
On August 26, 2015, the guardian ad litem for the minor
child, Margaret Bozek, filed her proposed orders, which
included a recommendation that the parties continue
to have joint legal custody of the minor child, but that
the plaintiff have final decision-making authority if the
parties could not agree after consultation. In her August
31, 2015 proposed orders, the defendant requested that
the parties continue to have joint legal custody of the
minor child.
The hearing on the plaintiff’s motion for modification
was held on three days, September 3, October 8 and
November 12, 2015. On the first day of the hearing, the
defendant filed a motion in limine seeking to preclude
the admission of evidence on the issue of a change in
custody of the minor child. The record reflects that
the court, Ficeto, J., denied the defendant’s motion on
September 3, 2015. We do not know what reasoning
was stated for the denial of the motion in limine because
we do not have a transcript of the hearing. On Septem-
ber 15, 2015, the defendant filed a motion for a continu-
ance of the next hearing, then scheduled for September
21, because she needed more time to obtain information
from the minor child’s therapist. Although the court
denied the motion for continuance, the next hearing
was not held until October 8, 2015, and, as previously
stated, a third session occurred on November 12, 2015.
In its memorandum of decision, the court ordered
that the plaintiff was to have sole legal custody of the
minor child, and that he was to keep the defendant
apprised of all substantive matters concerning the
minor child, including, but not limited to, educational
programs, medical treatment, religious upbringing,
attendance at camp, and participation in extracurricular
activities. The court found that it was ‘‘abundantly
clear’’ that the parties were unable to coparent despite
the tools available to them since the dissolution, and
that the parties’ inability to coparent had a negative
impact on the minor child. The court noted that the
guardian ad litem had testified and had recommended
joint custody with the plaintiff having final decision-
making authority. The court further stated that all
attempts to coparent amicably since the dissolution
judgment had failed, and that ‘‘[t]here was nothing to
suggest during the three days of evidence that the his-
tory between the parties will change to permit the feasi-
bility of joint custody.’’ After considering the best
interest of the child and all other relevant statutory
criteria, the court ordered that the plaintiff have sole
legal custody of the minor child. This appeal followed.
The defendant makes the closely related claims that
the court erred in denying her motion in limine and
ordering sole custody to the plaintiff when the plaintiff
failed specifically to include a claim for sole legal cus-
tody in his motion for modification, as required, she
argues, by Practice Book § 25-26 (e).1 The plaintiff
argues that the defendant’s claim is unreviewable
because she has not provided transcripts of the hearing
on the motion for modification and, therefore, the
record is not adequate for review. The plaintiff argues
substantively that his motion for modification did
request other equitable relief, that the defendant had
actual notice, and that, in any event, a trial court’s
conclusion as to custody will not be overturned for lack
of specific pleading, so long as fundamental require-
ments of due process are met. The defendant contended
at oral argument before this court that transcripts of
the motion for modification hearing were not necessary
because the resolution of the issue on appeal involves
a plenary review of the motion for modification to ascer-
tain whether, in light of § 25-26 (e), the court lawfully
could award the plaintiff sole legal custody. We agree
with the plaintiff.
The defendant’s position, reduced to its essentials,
is that the plaintiff’s motion for modification did not
supply adequate notice that a change in legal custody
was contemplated. The plaintiff contends that actual
notice that custody was at issue was in fact supplied,
by notice to the parties from the guardian ad litem, as
early as April, 2015. The court made no finding, so far
as we can tell, to that effect. We assume, then, for the
purpose of this opinion, that the first formal notification
of the specific remedy sought was made one week
before the first hearing in the plaintiff’s compliance with
trial management orders. The general subject matter of
child custody, of course, had been known for months.
As previously noted, the plaintiff’s motion for modifica-
tion was not deficient in identifying prior orders sought
to be modified or the grounds for modification. The
motion did not, however, specifically request the relief
of sole legal custody.
In the circumstances of this case, we cannot conclude
that the court erred in granting the plaintiff sole legal
custody. Significant case law supports the plaintiff’s
position on appeal. In Kidwell v. Calderon, 98 Conn.
App. 754, 911 A.2d. 342 (2006), the plaintiff had filed a
custody complaint seeking joint legal custody and
‘‘[a]ny further orders that the [c]ourt in law or equity
deems necessary.’’ Id., 755. The trial court awarded
the plaintiff sole custody. The defendant argued to this
court that ‘‘because the plaintiff did not specifically ask
for sole custody in his complaint or file a motion seeking
sole custody, the court abused its discretion in granting
him sole custody.’’ Id., 757. This court disagreed. Due
process requirements of notice and reasonable opportu-
nity to be heard had been satisfied; the defendant had
adequate notice. Id., 758–59. Although the complaint
had not requested the specific relief of sole custody,
the requested relief was broadly stated and, in the cir-
cumstances of that case, the court properly considered
the best interests of the child. Id.
Similarly, in Petrov v. Gueorguieva, 167 Conn. App.
505, 146 A.3d 26 (2016), the trial court had modified
primary physical custody on a ground different from
that asserted in the plaintiff’s motion to modify. Id., 519.
We held that modification was appropriate nonetheless.
Id. The court was guided by the best interests of the
child, and the record revealed that the defendant had
adequate actual notice of the ground relied on and an
opportunity to contest the ground. Thus, ‘‘the [plain-
tiff’s] failure to raise [the] ground in filing his motion
to modify did not unduly prejudice or surprise the defen-
dant.’’ Id., 522.
In the present case, the record shows that the defen-
dant had notice that custody issues would be raised at
the hearing on the motion for modification. Although
her motion for continuance was formally denied, the
defendant had at least several months to prepare. The
motion to modify itself specifically requested a broader
role for the plaintiff, and the hearing took place over
a period of three months. A purpose of specificity in
pleadings is to provide notice; Petrov v. Gueorguieva,
supra, 167 Conn. App. 518–19; and here, the defendant
has not shown that notice was inadequate. Because the
defendant has failed to provide us with the transcripts
of the September 3, October 8 and November 12, 2015
proceedings, we are unable to find an abuse of discre-
tion in the court’s decisions on the motions for modifica-
tion and in limine, and we are unable to determine that
the defendant was harmed by any degree of curtailed
notice. See, e.g., Sabanovic v. Sabanovic, 108 Conn.
App. 89, 92, 946 A.2d 1288 (2008).
The judgment is affirmed.
In this opinion the other judges concurred.
1
Practice Book § 25-26 (e) provides: ‘‘Each motion for modification shall
state the specific factual and legal basis for the claimed modification and
shall include the outstanding order and date thereof to which the motion
for modification is addressed.’’
The plaintiff’s motion appears to have complied with the language of
Practice Book § 25-26 (e), in that it recited the prior order and stated a
general basis. The defendant appears to take issue primarily with the title
of the motion, ‘‘Motion for Modification of Parenting Plan–Post Judgment.’’
Her principal argument is that the motion did not provide adequate notice
that the question of legal custody would be addressed and amended.