Swanson v. Perez-Swanson ( 2021 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
RONALD SWANSON v. MARIANELLA
PEREZ-SWANSON
(AC 43743)
Elgo, Cradle 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 motion to dismiss the defendant’s postjudgment
motion for modification of the custody of the parties’ children. Pursuant
to the separation agreement, which was incorporated into the judgment
of dissolution, the parties shared joint legal custody of the children and
the plaintiff had primary physical custody. The parties entered into a
postjudgment agreement that permitted the plaintiff to relocate to North
Carolina with the children, provided that, inter alia, the defendant
retained rights to visitation and the plaintiff was required to pay to the
defendant a monthly travel allowance for visitation related expenses.
After the plaintiff and the children relocated, the parties entered into
another postjudgment agreement, which, inter alia, stipulated that the
courts in either Connecticut or North Carolina would have jurisdiction
to decide any issues relating to custody and/or visitation. The plaintiff
filed a petition for registration of a foreign child custody order in a
court in North Carolina, which that court confirmed. The defendant
then filed a motion for modification in Connecticut, claiming that the
plaintiff had failed to pay alimony and the travel allowance in accordance
with their agreement, which impacted her ability to visit the children.
The plaintiff filed a motion to dismiss the defendant’s motion for modifi-
cation, asserting that North Carolina was the children’s home state and,
as such, the Connecticut court should decline to exercise jurisdiction.
Following a hearing on the motions, the trial court determined that it
no longer had jurisdiction to enter orders relating to the custody and
visitation of the children pursuant to the applicable statute (§ 46b-115l
(a) (2)), and, accordingly, it granted the plaintiff’s motion to dismiss.
Held that the trial court erred in granting the plaintiff’s motion to dismiss
the defendant’s motion for modification: a trial court’s determination
that it lacked continuing jurisdiction to modify custody pursuant to
§ 46b-115l (a) (2) required the satisfaction of three factors, namely, that
Connecticut was no longer the children’s home state, that the children
lacked a significant relationship with the defendant, who continued to
reside in Connecticut, and that substantial evidence concerning the
children’s care, protection, training and personal relationships was no
longer available in Connecticut, and, although the trial court based its
determination that it no longer had jurisdiction to enter custody orders
on the defendant’s concession that North Carolina was the children’s
home state, it failed to address the remaining two factors.
Argued April 12—officially released July 27, 2021
Procedural History
Action for the dissolution of marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Litchfield, where the court, Shah, J., rendered
judgment dissolving the marriage and granting certain
other relief in accordance with the parties’ separation
agreement; thereafter, the court, Danaher, J., granted
the plaintiff’s motion to dismiss the defendant’s motion
to modify custody, and the defendant appealed to this
court. Reversed; further proceedings.
Christopher G. Brown, for the appellant (defendant).
Steven H. Levy, for the appellee (plaintiff).
Opinion
CRADLE, J. The defendant, Marianella Perez-Swan-
son, appeals from the judgment of the trial court dis-
missing her postjudgment motion to modify custody
of the parties’ children on the ground that it lacked
jurisdiction to enter further orders regarding the cus-
tody and visitation of the children under General Stat-
utes § 46b-115l (a) (2) because the children had resided
with the plaintiff, Ronald Swanson, in North Carolina
for at least six consecutive months. Specifically, the
defendant claims on appeal that the trial court erred
by concluding that it no longer had jurisdiction to enter
further orders because the court failed to consider two
of the three statutory requirements: namely, whether
the defendant maintains a significant relationship with
the children and whether substantial evidence concern-
ing the children was available in Connecticut. We agree
and reverse the judgment of the trial court.1
The following facts and procedural history are rele-
vant to the claims on appeal. The parties were married
on April 17, 2004. On January 20, 2015, the plaintiff
initiated an action for marital dissolution and physical
custody of the parties’ three children.2 On January 21,
2016, the court rendered a judgment of dissolution,
finding that the parties’ marriage had broken down irre-
trievably. Pursuant to the judgment and fully incorpo-
rated separation agreement, the parties shared joint
legal custody of the children, and the plaintiff had pri-
mary physical custody.3
On May 16, 2018, the defendant filed a motion seeking
to preclude the plaintiff from relocating to North Caro-
lina with the children. On June 5, 2018, the plaintiff
filed a motion for modification, requesting permission
to relocate with the children to Greensboro, North Caro-
lina. On August 14, 2018, the parties entered into an
agreement, which gave the parties joint custody of the
children but provided for physical residence with the
plaintiff in Greensboro, North Carolina. The agreement
also established a visitation schedule, which allowed
the defendant extended visits with her children in Con-
necticut during certain months and, during the months
the children did not have an extended visit in Connecti-
cut, the defendant had a right to visitation in North
Carolina. Additionally, the agreement provided that the
plaintiff was to pay the defendant a travel allowance
of $800 per month for her visitation related expenses.
In August, 2018, the plaintiff and the three children
relocated to North Carolina, while the defendant contin-
ued to reside in Connecticut.4 On July 10, 2019, the
parties entered into another postjudgment agreement
modifying the plaintiff’s obligations and stipulating that
either the court in ‘‘[Connecticut] or [North Carolina]
[would] have jurisdiction to decide any issues relating
to custody [and/or] visitation.’’
The plaintiff filed a petition for registration of a for-
eign child custody order, dated July 29, 2019, in the
district court in Guilford County, North Carolina.5 On
October 7, 2019, the court in North Carolina entered
an order confirming the registration of Connecticut’s
child custody order.
On October 22, 2019, the defendant filed, in Connecti-
cut, a motion for modification claiming that the plaintiff
failed to pay the travel allowance and alimony in accor-
dance with the postjudgment agreement, which was
preventing her from visiting the children in North Caro-
lina. She asked the court to return the children to her
physical custody in Connecticut and, in turn, to imple-
ment a visitation schedule for the plaintiff. On Novem-
ber 5, 2019, the plaintiff filed a motion to dismiss the
defendant’s motion for modification, alleging that North
Carolina was the children’s home state and, therefore,
the Connecticut court should decline to exercise juris-
diction because it was no longer a convenient forum.
The defendant filed a reply on November 15, 2019, in
which she asserted that the Connecticut court has con-
tinuing jurisdiction under the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA), codified
in General Statutes § 46b-115 et seq., because she still
resides in Connecticut, she has a significant relationship
with her children, and substantial evidence related to
the children is still available in Connecticut.6
On December 9, 2019, the parties appeared before
the court, Danaher, J., for a hearing on their motions.
At the hearing, the defendant, through her attorney,
acknowledged that the judgment had been properly
registered in North Carolina, that the children had
resided in North Carolina for at least six months, and,
consequently, that North Carolina was now the chil-
dren’s home state as defined by the UCCJEA.7 Accord-
ingly, on that same date, the court issued a written
order granting the plaintiff’s motion to dismiss. The
court reasoned that ‘‘[t]he defendant acknowledged, in
open court, that the custody and visitation orders
entered in this court have been properly registered in
North Carolina. The defendant further acknowledged
that North Carolina is the ‘home state’ of the three . . .
children, as that phrase is defined in General Statutes
§ 46b-115a (7), in that the children have resided in North
Carolina since the summer of 2018. Therefore, this court
no longer has jurisdiction to enter further orders regard-
ing custody and visitation of the . . . children. General
Statutes § 46b-115l (a) (2).’’ This appeal followed.
On appeal, the defendant claims that the trial court
erred by concluding that it lacked continuing jurisdic-
tion to modify custody solely on the ground that North
Carolina is the children’s home state. She argues that
the court failed to consider whether the children had
a significant relationship with the defendant, who
resides in Connecticut, and whether there was substan-
tial evidence related to the children still available in
Connecticut, both of which are required to terminate
jurisdiction under § 46b-115l (a) (2) of the UCCJEA.
We agree.
‘‘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 con-
clusions 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 omitted.) Firstenb-
erg v. Madigan, 188 Conn. App. 724, 730, 205 A.3d
716 (2019).
‘‘The purposes of the UCCJEA are to avoid jurisdic-
tional competition and conflict with courts of other
states in matters of child custody; promote cooperation
with the courts of other states; discourage continuing
controversies over child custody; deter abductions;
avoid [relitigation] of custody decisions; and to facili-
tate the enforcement of custody decrees of other states.
. . . The UCCJEA addresses [interjurisdictional] issues
related to child custody and visitation. . . .
‘‘The UCCJEA is the enabling legislation for the
court’s jurisdiction. . . . The UCCJEA, as adopted in
[§ 46b-115 et seq.], provides Superior Courts with exclu-
sive jurisdiction to make a child custody determination
by initial or modification decree . . . .’’ (Citations
omitted; internal quotation marks omitted.) In re Iliana
M., 134 Conn. App. 382, 390, 38 A.3d 130 (2012).
The UCCJEA, in § 46b-115l (a), provides in relevant
part that, ‘‘a court of this state which has made a child
custody determination . . . has exclusive, continuing
jurisdiction over the determination until: (1) A court of
this state or a court of another state determines that
the child, the child’s parents and any person acting as
a parent do not presently reside in this state; or (2) a
court of this state determines that (A) this state is not
the home state of the child, (B) a parent or a person
acting as a parent continues to reside in this state but
the child no longer has a significant relationship with
such parent or person, and (C) substantial evidence is
no longer available in this state concerning the child’s
care, protection, training and personal relationships.’’8
(Emphasis added.)
Here, although the defendant conceded that the chil-
dren had continuously resided in North Carolina for
more than six consecutive months with the defendant
and, therefore, that North Carolina was the children’s
home state, that alone is not sufficient to terminate the
Connecticut court’s continuing jurisdiction. As pro-
vided in § 46b-115l (a), a court of this state has continu-
ing jurisdiction over the custody order until it has been
determined that Connecticut is not the home state of
the children, and that the children lack a significant
relationship with the defendant who resides in Connect-
icut, and that substantial evidence concerning the chil-
dren’s care, protection, training, and personal relation-
ships is no longer available in Connecticut. Thus, all
three of the aforementioned factors must be met and,
here, the court made its determination on the basis
of only one factor without addressing the remaining
factors. Because the court based its determination that
it lacked jurisdiction solely on the fact that Connecticut
is no longer the home state of the children, it erred in
granting the plaintiff’s motion to dismiss the defendant’s
motion to modify custody.9
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
1
Although the defendant also alleges that her due process rights were
violated because she was not afforded the opportunity to conduct an eviden-
tiary hearing to address the considerations delineated in § 46b-115l (a) (2),
we need not address this claim because we conclude that the judgment
should be reversed and the case remanded for further proceedings for the
reasons discussed in this opinion.
2
At the time of the dissolution proceedings, the parties resided in Connecti-
cut with their children.
3
Following the judgment of dissolution, the parties modified the separa-
tion agreement on several occasions. On October 25, 2016, the parties entered
into a postjudgment agreement granting the plaintiff full legal and physical
custody of the children, while allowing the defendant supervised visitation
contingent on her compliance with the conditions set forth in the agreement.
On August 28, 2017, the defendant filed a postjudgment motion for modifica-
tion and an application for an emergency ex parte order of custody, seeking
to prevent the plaintiff from removing the children from the state of Connecti-
cut. In an order dated August 28, 2017, the court granted the defendant’s
application and determined that the plaintiff could not remove the children
from the state of Connecticut. On August 30, 2017, the plaintiff filed a motion
to modify the emergency ex parte order, in which he requested the court’s
permission to temporarily move the children out of Connecticut while
awaiting a hearing date to provide the defendant an opportunity to be heard.
On August 30, 2017, the court, Dooley, J., granted the plaintiff’s motion to
vacate the emergency order and scheduled a hearing for September 25,
2017, to address the defendant’s motion to modify the agreement. On October
16, 2017, the parties entered into another postjudgment agreement granting
them joint legal custody and awarding the plaintiff primary physical custody.
The parties further agreed that the plaintiff would provide the defendant
with at least four weeks written notice of his intention to relocate the
children outside of Connecticut.
4
Between November, 2018 and April, 2019, the defendant filed several
motions in Connecticut, including three motions for contempt and a motion
for modification, claiming that the plaintiff had failed to pay alimony and
the visitation related expenses pursuant to the postjudgment agreement.
The plaintiff filed a motion for modification of alimony and a motion to
dismiss the defendant’s motion for modification. On April 2, 2019, the court,
Bentivegna, J., held a hearing and addressed those motions. In a memoran-
dum of decision dated April 3, 2019, the court concluded that alimony had
been paid and there was no arrearage. Therefore, the court denied the
defendant’s motion for contempt regarding alimony and the travel allowance
payments. Additionally, the court found that, on the basis of a mediation
provision in the agreement, the parties were required to participate in medita-
tion regarding any current custody and visitation issues and, therefore,
denied the motions regarding modification.
5
The plaintiff filed the petition for registration pursuant to North Carolina
General Statutes § 50A-305, entitled ‘‘Registration of child-custody determi-
nation,’’ which provides in relevant part: ‘‘(a) A child-custody determination
issued by a court of another state may be registered [and enforced] in this
State . . . .’’ There was no dispute that the plaintiff complied with the
statutory requirements for registering the custody order in North Carolina.
6
Specifically, the defendant relies on General Statutes § 46b-115l (a),
which provides in relevant part: ‘‘[A] court of this state which has made a
child custody determination . . . has exclusive, continuing jurisdiction over
the determination until: (1) A court of this state or a court of another state
determines that the child, the child’s parents and any person acting as a
parent do not presently reside in this state; or (2) a court of this state
determines that (A) this state is not the home state of the child, (B) a parent
or a person acting as a parent continues to reside in this state but the child
no longer has a significant relationship with such parent or person, and (C)
substantial evidence is no longer available in this state concerning the child’s
care, protection, training and personal relationships.’’
7
General Statutes § 46b-115a (7) defines ‘‘ ‘[h]ome state’ ’’ in relevant part
as ‘‘the state in which a child lived with a parent or person acting as a
parent for at least six consecutive months immediately before the com-
mencement of a child custody proceeding. . . .’’
8
As noted, § 46b-115l (a) provides two separate routes for a court to
determine whether it has continuing jurisdiction over a custody determina-
tion. Section 46b-115l (a) (1) requires a showing that the child, the parents
and any person acting as a parent do not presently reside Connecticut. In
this case, it is undisputed that the defendant resides in Connecticut. There-
fore, that section is inapplicable and we turn to § 46b-115l (a) (2).
9
The plaintiff argues that there was sufficient evidence from which the
court could have concluded that the other two factors were satisfied. This
argument is belied by the fact that no evidentiary hearing was held on the
motions that gave rise to this appeal. Moreover, because the trial court did
not consider those factors, it did not make any factual findings pertaining
to them. In the absence of requisite findings by the trial court, this court
cannot conclude that the trial court was able to determine that all three
prerequisites were met. See Lacic v. Tomas, 78 Conn. App. 406, 410, 829
A.2d 1 (‘‘[I]t is the function of the trial court, not this court, to find facts.
. . . Imposing a fact-finding function on this court, therefore, would be
contrary to generally established law. Indeed, it would be inconsistent with
the entire process of trial fact-finding for an appellate court to do so.’’
(Internal quotation marks omitted.)), cert. denied, 266 Conn. 922, 835 A.2d
472 (2003).