McNamara v. McNamara ( 2021 )

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JAMES M. MCNAMARA v. KRISTINE MCNAMARA
(AC 43391)
Alvord, Alexander and Eveleigh, 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 her attorney’s motion to withdraw his appearance, denying
her request for a continuance, and granting the plaintiff’s motion for
modification. The plaintiff filed a postjudgment motion for modification
seeking amendments to the parties’ parenting time, communication prac-
tices, and medical and educational final decision-making authority. Sub-
sequently, the defendant’s counsel, C, filed a motion to withdraw his
appearance, in which he represented that communication with the defen-
dant had broken down and that he could not effectively represent her
interests. The trial court granted the motion after a hearing. Subse-
quently, the court denied the defendant’s request for a continuance of
the hearing on the plaintiff’s motion for modification in order to obtain
new counsel. The court granted the plaintiff’s motion for modification,
and this appeal followed. Held:
1. The trial court did not abuse its discretion in granting C’s motion to
withdraw his appearance: the court correctly determined that the defen-
dant did not object to the motion because, after the trial court stated
that it was its understanding that the defendant did not object, the
defendant responded only by stating that she did not want to be self-
represented, the record revealed that she was afforded ample opportu-
nity to communicate her position, and, although C’s motion was granted
three days before the hearing on the motion for modification, the motion
to withdraw was precipitated by the defendant’s refusal to meet with
C to prepare for the hearing.
2. The defendant could not prevail on her unpreserved claim that the trial
court violated her right to procedural due process in denying her motion
for a continuance; the defendant did not meet her burden of proving
that the denial of the requested continuance of the hearing on the
plaintiff’s motion for modification, a postjudgment motion between two
parents with joint legal and shared physical custody of their children,
was a claim of constitutional magnitude, directly linked to the specific
constitutional right she alleged, namely, a parent’s constitutional right
to make decisions concerning the care, custody and control of his or
her child.
3. This court declined to review the defendant’s claim that the trial court
abused its discretion in denying her motion for a continuance; the defen-
dant failed to brief and analyze adequately how she was harmed by the
court’s denial of her request, and, result, in the absence of any such
analysis, this court was unable to conclude that the denial had any
bearing on the outcome of the hearing.
4. The trial court did not abuse its discretion in awarding the plaintiff
final decision-making authority on issues concerning the physical and
emotional health of the parties’ children, treatment decisions, and the
selection of therapeutic providers: although the court found that the
parties were capable and loving parents, it also found that they communi-
cated poorly with each other and their inability to agree on important
issues resulted in the children being denied therapeutic services, and,
as a result, a tiebreaker was needed; this court could not conclude, on
the basis of the court’s findings, that the trial court abused its discretion
in concluding that an award of final decision-making authority was
necessary and that it was most appropriate for the plaintiff to be given
that authority.
(One judge dissenting)
Argued April 7—officially released September 28, 2021
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of Danbury, where the court, Winslow, J., rendered
judgment dissolving the marriage and granting certain
other relief in accordance with the parties’ separation
agreement; thereafter, the court, Hon. Heidi G. Wins-
low, judge trial referee, granted the motion to withdraw
filed by the defendant’s counsel; subsequently, the
court, Hon. Heidi G. Winslow, judge trial referee,
denied the defendant’s motion for a continuance and
granted the plaintiff’s motion for modification, and the
defendant appealed to this court. Affirmed.
Olivia M. Eucalitto, with whom, on the brief, was
Janet A. Battey, for the appellant (defendant).
Christopher P. Norris, for the appellee (plaintiff).
Opinion
ALVORD, J. In this postdissolution matter, the defen-
dant, Kristine McNamara, appeals from the judgment
of the trial court granting her attorney’s motion to with-
draw his appearance, denying her motion for a continu-
ance, and granting the motion of the plaintiff, James
M. McNamara, for modification of certain custody
orders. On appeal, the defendant claims that the court
(1) abused its discretion in granting her attorney’s
motion to withdraw, (2) violated her right to procedural
due process in denying her motion for a continuance,
(3) abused its discretion in denying her motion for a
continuance, and (4) abused its discretion in awarding
the plaintiff final decision-making authority on issues
concerning the health, treatment, and therapeutic pro-
viders of the parties’ children. We affirm the judgment
of the trial court.
The following facts and procedural history are rele-
vant to our review of the defendant’s claims. The court,
Winslow, J., dissolved the parties’ eleven year marriage
on September 27, 2013. The judgment of dissolution
incorporated by reference the parties’ separation agree-
ment and parenting plan agreement (parenting plan
agreement), both dated September 26, 2013. The parent-
ing plan agreement provided, inter alia, that the plaintiff
had sole legal custody of the parties’ two minor chil-
dren. On January 4, 2016, with the approval of the court,
Eschuk, J., the parties agreed to amend the parenting
plan to provide that the parties would have ‘‘joint legal
and physical custody of the children.’’ On November 6,
2018, with the approval of the court, Eschuk, J., the
parenting plan agreement again was modified to provide
the defendant with additional parenting time.
On January 11, 2019, the plaintiff filed a motion for
modification. On May 15, 2019, the plaintiff filed a sec-
ond amended motion for modification (operative
motion for modification), in which he sought amend-
ments to the parties’ parenting time, holiday parenting
time, parental communication practices, and medical
and educational final decision-making authority. A hear-
ing on the plaintiff’s motion for modification was sched-
uled for August 8 and 9, 2019.
On July 31, 2019, the defendant’s counsel, Attorney
William Chabb, filed a motion to withdraw his appear-
ance. Attorney Chabb represented that effective com-
munication with the defendant had broken down, the
defendant had stated that she did not trust him, and
the defendant did not value or follow his reasonable
advice or acknowledge the risks of an unfavorable
result at trial. As a result, Attorney Chabb represented
that he could not effectively or adequately represent
the defendant’s interests in the matter and that opposing
counsel did not object to the granting of the motion. A
hearing was set on the motion to withdraw for August
5, 2019, at which the parties appeared before the court,
Hon. Heidi G. Winslow, judge trial referee. After the
hearing, and on that same date, the court granted the
motion. The defendant thereafter made an oral request
for a continuance in order to obtain new counsel, which
the court denied.
On August 6, 2019, the defendant filed a motion for
continuance, seeking to have the hearing on the plain-
tiff’s motion for modification continued to September
6, 2019. She asserted, as her reason for requesting a
continuance: ‘‘I need more time because my lawyer
withdrew yesterday. I have no legal professional repre-
sentation for my hearing.’’ The motion stated that the
plaintiff had not consented to the continuance. The
court, Eschuk, J., denied the motion on the same day
it was filed.
The plaintiff’s operative motion for modification was
heard by the court, Hon. Heidi G. Winslow, judge trial
referee, on August 8 and 9, 2019. On August 9, 2019,
the court made findings on the record and, on August
12, 2019, the court issued a written order, providing,
inter alia, that: ‘‘The parties shall have joint legal cus-
tody of the minor children. The parties shall be equally
involved in all major decisions affecting the children.
The party with whom the children are staying at the
time will have the right to make emergency decisions
affecting the children. All other important decisions affect-
ing the health, welfare, education, religious upbringing,
guidance, discipline or other aspect of the upbringing
of the children shall be made with the participation,
involvement and agreement of both parents. Neither
party shall be entitled to act unilaterally as to important
decisions affecting the children until there has been a
bona fide attempt to reach agreement. If, however, the
parties are unable to agree on a physical health, emo-
tional health, or therapeutic treatment decision or selec-
tion of the providers of such services, the plaintiff shall
have the final say. Physical and emotional health care
appointments, as well as therapeutic services, shall be
scheduled to occur on some of the parenting time of
each parent.’’ On August 26, 2019, the defendant filed
a motion to reargue the court’s August 12, 2019 custody
orders, which was denied. This appeal followed. Addi-
tional facts will be set forth as necessary.
I
The defendant’s first claim on appeal is that the court
abused its discretion in granting Attorney Chabb’s
motion to withdraw his appearance. Specifically, she
argues that it was improper to permit Attorney Chabb
to withdraw seventy-two hours before the hearing on
the plaintiff’s motion for modification was scheduled
to begin and that the court’s determination that she did
not object to Attorney Chabb’s withdrawal is contra-
dicted by the transcript. The plaintiff responds that the
defendant was clear as to her desire to hire new counsel
and she did not object to Attorney Chabb’s withdrawal.
We conclude that the court did not abuse its discretion
in granting the motion to withdraw.
The following additional facts and procedural history
are relevant to our resolution of this claim. At the begin-
ning of the August 5, 2019 hearing on Attorney Chabb’s
motion to withdraw his appearance, the court recessed
briefly to give the defendant and Attorney Chabb time
to speak with each other. The court then heard argu-
ment from Attorney Chabb before turning to the defen-
dant for her position on the motion. The defendant
explained: ‘‘I feel that [Attorney] Chabb is not informing
me and protecting my legal rights by guiding me in the
direction that I need to be guided in.’’ The defendant
stated that Attorney Chabb had e-mailed her on May 29,
2019, to inform her that she could ask for a deposition
of the plaintiff if she wanted to do so. She explained
that he had sent her a letter on August 1, 2019, in which
he indicated that he had e-mailed her regarding the ‘‘use
and necessity of a deposition.’’ The defendant stated
that Attorney Chabb had falsely said that she was under
stress and pressure and that she had virtually no contact
with him during July, 2019. She represented that ‘‘[I]t’s
been all along where I’ve gone to court and he hasn’t
reviewed to me what is actually coming up onto to be
discussed. And I go into court and, [for] example, the
November 6, whatever happened that day, it was the
day before that I saw that the opposing side wanted to
change something in the parenting plan. But I had met
with [Attorney] Chabb the day before and we discussed
an entirely different motion. So, I walked into court the
next day and I was basically blindsided by a proposal
handed to the judge that I didn’t even read.’’ The defen-
dant further represented that, on another occasion,
Attorney Chabb again had not informed her of the sub-
ject matter of an upcoming hearing.
The defendant then explained to the court that she
was very busy because of her parenting time with the
parties’ children. She stated that she had not filed any
objection to the plaintiff’s request for medical and edu-
cational decision-making authority because she had not
been told that she was supposed to be filing an objec-
tion. She concluded her argument by stating: ‘‘[U]nfortu-
nately I can’t seem to, for whatever reason, the relation-
ship is—I can’t seem to get good counsel. And I’m just
looking for a fair and honest . . . process with good
legal counsel so that I can put on a case to show the
court the good, dedicated mother that I am. Thank you,
Your Honor.’’
After sharing her position, the court followed up by
asking the defendant how she responded to Attorney
Chabb’s May 29, 2019 e-mail regarding the deposition,
and whether she let Attorney Chabb know whether she
wanted to have the plaintiff deposed. After this line of
inquiry, the court stated: ‘‘[W]ell, what I think I’m hear-
ing from you is that you’re agreeing that your relation-
ship with [Attorney] Chabb has broken down.’’ The
defendant responded: ‘‘I—you know, I spent $30,000
and I—if there’s some way that we can work it out. My
problem is that if I go to try and get another lawyer,
you know—I’ve called and sort of inquired, you know,
it would be a $30,000 retainer. So I, you know, I’ve tried
to—to—.’’ The court then interjected: ‘‘And really short
notice since your hearing is later this week.’’
The court then inquired of the defendant regarding
her willingness to share with Attorney Chabb certain
e-mails. The defendant stated: ‘‘[I]f [the plaintiff’s] entire
motion is gonna be heard on the 8th and 9th, he has
not asked, sat down with me, and asked me for any
e-mails to discuss anything. And so he’s telling me now,
the other day, that in three to four hours he can prepare
me for this hearing but he’s spent no time and he’s
asked for no e-mails of what it is that could support
my case against these false allegations that the other
side is making.’’ The court and the defendant then
engaged in a colloquy regarding whether the defendant
should have provided certain e-mails to Attorney
Chabb, with the defendant explaining, inter alia, that
she wanted to sit down with Attorney Chabb and go
through each of the plaintiff’s allegations and discuss
what types of e-mails would be most responsive to the
plaintiff’s allegations.
The following colloquy then occurred:
‘‘The Court: I see why [Attorney] Chabb is asking
to be released and you’re not objecting to his being
released.
‘‘[The Defendant]: Well—
‘‘The Court: You get the e-mails together that you
need and come and put on your hearing on Thursday.
I mean, you either have [Attorney] Chabb representing
you Thursday and Friday or you don’t.
‘‘[The Defendant]: But I don’t want to be—
‘‘The Court: And it sounds as though your relationship
has broken down and that you haven’t given him the
documents that you feel are necessary for—for the
motion to be heard. You know—
‘‘[The Defendant]: But I don’t want—
‘‘The Court: —I don’t know what you expect him to
do when he hasn’t been given anything from you.
‘‘[The Defendant]: But I don’t want—I don’t want to
represent myself. I would like some time to find counsel
that I can find counsel that can help me.
‘‘The Court: This case has been scheduled for three
months, two and a half, at this point.
‘‘[The Defendant]: And—and—
‘‘The Court: And, you know, at this point you’re either
ready to proceed with [Attorney] Chabb or you’re not.’’
The defendant then stated that she and Attorney
Chabb had not had any contact for the month of July,
2019. Attorney Chabb responded: ‘‘For the record . . .
[the defendant] is right. I had not contacted her for
three weeks. Largely because my policy is to wait for
preparation as close to a hearing as possible in order,
number one, to save money, number two, i[n] case
there’s amended motions or anything else that comes
along. However, prior to May 29th and that e-mail about
the deposition as I forwarded per [the defendant’s]
instructions, formal objections drafted to the allega-
tions made by [the plaintiff’s counsel] in the normal
course. I also drafted motions for modifications per
[the defendant’s] directions. I sent them to her, I looked
for her direction as to actually filing them. [The defen-
dant] stated to me that she had answers to all the allega-
tions for [the plaintiff’s counsel’s] motion and I never
received them. So, there comes a point where I can’t
obviously command, I can only try to persuade my
clients. And I tried to persuade her to deal with these
issues and deal with them in a timely fashion, I heard
nothing. So, at one point, you just have to stop. I’ve
done everything she directed me to do, she’s been suc-
cessful in terms of her parenting and an additional time
in November, the last time we were in court. So, the
problem becomes is . . . not that I take [the defen-
dant’s] criticisms personally, I don’t, but profession-
al[ly] I have to decide whether I can actually work
with her when her attitude is somewhat in opposition
depending on the day. So when she called me last week
and asked me about preparation I did say, and I invited
her to come to my office last Wednesday or Thursday
to sit down, I have a complete file, I have what I believe
would be some objections, might have merit, but she
proceeded to simply not take me up on my offer and
kind of personally harangue me. Again, it’s not personal
but professionally how can I recover from that? So, how
can I sit down now with [the defendant] and pretend
it all didn’t happen and now deal with all the documents
she’s had, no deposition and it is her option, it’s always
the client’s options, as to whether they want to spend
any money on any legal procedures. So unfortunately,
I don’t believe that I can represent [the defendant]. I
think too much water under the bridge in this relation-
ship.
‘‘The Court: I’ll hear from you again, Ms. McNamara.
[Attorney] Chabb has said that you were invited to his
office last week. Do you recall something of that sort?
‘‘[The Defendant]: Over the phone he told me that on
Thursday and Friday that the only things are gonna be
discussed are [the plaintiff’s] issue wanting sole medical
and educational decision making.
‘‘The Court: Did he invite you to his office—
‘‘[The Defendant]: He—
‘‘The Court:—to sit down and talk?
‘‘[The Defendant]: He did. He—
‘‘The Court: And—and—
‘‘[The Defendant]:—over the phone he—Yeah.
‘‘The Court: And what was your response to that?
‘‘[The Defendant]: That . . . last minute to go there
and sit down and talk to him when he never even told
me what type of e-mails or anything that I would pre-
pare. He said I can see you either tomorrow or the next
day and I’ll prepare you in three to four hours. But I
said, I don’t want you to prepare me when . . . you
haven’t even told me what to bring or we haven’t even
discussed. How can, it’s not that I don’t want him to,
it’s that how could we possibly prepare effectively in
three to four hours for just sole medical and educational
decision making as if those are just the only issues
when we have had no contact and we’ve not sat down
for him to guide me on what it is that I could bring that
would be most worthy for a hearing.
‘‘The Court: So you declined to sit down with him?
‘‘[The Defendant]: I said to him how can we prepare,
you know, in three to four hours and that be it when
we haven’t—
‘‘The Court: So, did you decline to sit down with him
last week?
‘‘[The Defendant]: Ah—no. I would like—I’m still will-
ing to sit down and prepare effectively.
‘‘The Court: So why did you not go when he suggested
that you go and sit down with him last week?
‘‘[The Defendant]: Well, I was—I was with my kids
that day so I couldn’t go that day. And it wasn’t kind
of like, I couldn’t go that day. . . . It was so last minute.
It wasn’t even something that was scheduled in
advance, like this is when we’re gonna sit down. There
was no, it wasn’t even that there was an appointment
scheduled to say, okay, in two weeks I want, since
we’ve had this discussion, we’re gonna have another
sit down where we’re gonna discuss in three to four
hours everything that I told you to bring. So then we’re
gonna sit down at this time . . . and really go prepare
properly with what I’ve asked you to bring. It’s almost
like there’s nothing and then . . . we had a conversa-
tion and he said come and in three to four hours, tomor-
row or the next day, I’m gonna prepare you with noth-
ing. And we—I mean, pretty much the whole month of
. . . July, we—there’s been no contact. There’s been
no professional guidance and I just feel that that’s detri-
mental to my interests for . . . having a fair trial, a fair
hearing for medical and educational decision making
when I’m the one that—that makes very good decisions
medically and educationally for my children. So, I’m
going—If I don’t have good counsel helping me advance
my interests to me that’s, I don’t—
‘‘The Court: Well, it seems to me that there’s a definite
rift between [the defendant] and [Attorney] Chabb. Ms.
McNamara, I don’t really understand your reasoning
that says I needed to sit down with him but I couldn’t
make myself available on either of the days that he
suggested last week for several hours. And it doesn’t
make sense to me and I think that [Attorney] Chabb
has the same difficulty with a hearing coming up shortly
for you to not make yourself available to sit down with
him is a problem. So, I’m going to grant his motion
releasing him from further representation in this matter.
You just made it very clear that you have no confidence
in his ability to represent you.
‘‘[The Defendant]: I don’t want to be self-represented
though.’’
We first set forth our standard of review. ‘‘Decisions
regarding the withdrawal of counsel are evaluated
under an abuse of discretion standard.’’ Tolman v.
Banach, 82 Conn. App. 263, 265, 843 A.2d 650 (2004);
see also State v. Fernandez, 254 Conn. 637, 647, 758
A.2d 842 (2000), cert. denied, 532 U.S. 913, 121 S. Ct.
1247, 149 L. Ed. 2d 153 (2001).
The defendant first contends that the court incor-
rectly concluded that she did not object to Attorney
Chabb’s motion to withdraw. Our review of the tran-
script reveals that the court asked the defendant
whether she wanted to be heard on Attorney Chabb’s
motion to withdraw. The defendant responded in detail
by chronicling the ways in which she perceived her
counsel to have failed to inform her, to protect her
rights, and to guide her. Specifically, she stated that he
had failed to inform her of the substance of prior court
hearings, miscommunicated with her as to the impor-
tance of a deposition, and said false things about her
stress level. She did not include in her remarks any
statement that she objected to the motion or that she
wanted Attorney Chabb to continue to represent her.
At the conclusion of the defendant’s remarks, the court
followed up with questions for the defendant. Following
that colloquy, the court stated that it was its understand-
ing that the defendant was not objecting to her counsel
being permitted to withdraw, to which the defendant
responded that she did not want to be self-represented.
It was not until the discussion turned to whether the
defendant had failed to accept her counsel’s invitation
to meet to prepare for the upcoming hearing that the
defendant stated that she was still willing to meet with
Attorney Chabb. Moreover, after the court stated that
it was granting Attorney Chabb’s motion, the defendant
responded only by stating that she did not want to
be self-represented. On the basis of this record, we
conclude that the court did not incorrectly determine
that the defendant did not object to Attorney Chabb’s
motion to withdraw.
Although the defendant points to instances in which
she contends the court ‘‘cut her off’’ when she tried to
clarify whether she was objecting to Attorney Chabb’s
motion to withdraw, the record reveals that she was
afforded ample opportunity to communicate her posi-
tion on the motion. The colloquies cited by the defen-
dant as evidencing the court’s ‘‘cut[ting] her off’’
occurred after both the defendant’s full opportunity to
state her position and the additional colloquy between
the court and the defendant, in which the defendant
provided indirect responses to the court’s question as
to why she had declined to meet with her counsel.
The defendant’s second argument is that the time
frame of the court’s granting of her counsel’s motion
to withdraw, seventy-two hours before the hearing on
the plaintiff’s motion for modification was scheduled to
begin, further reflects an abuse of discretion. Although
Attorney Chabb’s motion to withdraw was granted three
days before the hearing on the motion for modification,
the motion to withdraw, which had been filed on July
31, 2019, was precipitated, at least in part, by the defen-
dant’s refusal to accept Attorney Chabb’s invitation that
they meet to prepare for the hearing. Moreover, the
defendant, prior to the hearing on Attorney Chabb’s
motion to withdraw, had consulted with another attor-
ney and was told she would have to provide a $30,000
retainer. Accordingly, we conclude that the court did
not abuse its discretion in granting Attorney Chabb’s
motion to withdraw his appearance.
II
The defendant’s second claim on appeal is that the
court violated her right to procedural due process when
it denied her motion for a continuance. We disagree.
The following additional procedural history is rele-
vant to this claim. After the court orally granted Attor-
ney Chabb’s motion to withdraw his appearance, the
defendant requested that the hearing on the plaintiff’s
motion for modification be continued to allow her time
to find new counsel. The following colloquy occurred:
‘‘[The Defendant]: I don’t want to be self-represented
though. I’d like a month then to—
‘‘The Court: That’s your option.
‘‘[The Defendant]:—find counsel.
‘‘The Court: You may go and seek counsel or you may
come up and represent yourself in two—three days, I
guess it is.
‘‘[The Defendant]: So I—
‘‘The Court: See you on the eighth.
‘‘[Attorney Chabb]: Thank[s], Your Honor.
‘‘[The Defendant]: So I need to find, so I need to find
counsel for the case—
‘‘The Court: Or represent yourself, whichever.
‘‘[The Defendant]:—on Friday or—for that. So, it can’t
be—it can’t be—
‘‘The Court: It’s the eighth, not Friday.
‘‘[The Defendant]: So it can’t be continued so I can
find legal counsel?
‘‘The Court: No. This matter’s been pending since
May.
‘‘[The Defendant]: Okay.
‘‘The Court: You will show up and have your hearing
on Thursday and Friday.
‘‘[The Defendant]: Thank you.’’
The following day, August 6, 2019, the defendant filed
a motion for a continuance, in which she represented:
‘‘I need more time because my lawyer withdrew yester-
day. I have no legal professional representation for my
hearing.’’ She requested that the hearing be continued
to September 6, 2019. The defendant indicated on the
motion that the plaintiff did not consent to the request
for continuance. The court, Eschuk, J., denied the
motion.
On appeal, the defendant argues that the court’s
denial of her motion for a continuance deprived her of
due process, and she seeks review of her claim under
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823(1989), as modified by In re Yasiel R., 317 Conn. 773,
781, 120 A.3d 1188 (2015), because her claim was not
presented to the trial court as constitutional in nature.
Assuming the first prong of Golding is met, we turn to
whether, under the facts of this case, the defendant
has met her burden of proving that the denial of the
requested continuance is a claim of constitutional mag-
nitude. See, e.g., Foster v. Foster, 84 Conn. App. 311,
316–17, 853 A.2d 588 (2004). ‘‘In general, a claim that
a court improperly denied a motion for a continuance
is not a constitutional claim, but rather one that rests
in the discretion of the trial court. . . . If the denial
of the continuance is directly linked, however, to a
constitutional right, then due process rights are impli-
cated, and the claim is of constitutional magnitude.’’
(Citation omitted.) Id., 317.
We are not persuaded that the defendant has satisfied
her burden of demonstrating that the denial of the
requested continuance is directly linked to the specific
constitutional right she alleges, namely, a parent’s con-
stitutional right to make decisions concerning the care,
custody and control of his or her child. The defendant
relies on In re Shaquanna M., 61 Conn. App. 592, 767
A.2d 155 (2001), and Foster v. Foster, supra, 84 Conn.
App. 311, both of which are distinguishable from the
present case.
In re Shaquanna M., supra, 61 Conn. App. 605–608,
involved a denial of a continuance in a proceeding to
terminate parental rights. This court determined that
the respondent’s due process rights were violated when
the court denied her a continuance to obtain new coun-
sel for her children after the individual who had been
serving as their attorney and guardian ad litem had died.
Id., 593–94, 608. Because the proceeding to terminate
parental rights implicated the respondent’s constitu-
tional right to maintain a relationship with her children,
this court reviewed the trial court’s denial of the contin-
uance pursuant to a procedural due process standard,
rather than the general abuse of discretion standard.
Id., 604–605. Foster v. Foster, supra, 84 Conn. App.
313–14, involved motions filed by the paternal grandpar-
ents to modify custody or, in the alternative, to enforce
their visitation rights. On appeal, the plaintiff claimed
that the court violated her right to procedural due pro-
cess when it denied her motion for a continuance. Id.,
315. This court determined that, ‘‘because the hearing
involved a request by grandparents for visitation, the
plaintiff’s motion for a continuance was sufficiently
linked to a constitutional right to accord Golding review
to the court’s denial of her motion for a continuance.’’
Id., 318. This court, citing Roth v. Weston, 259 Conn.
202, 229, 789 A.2d 431 (2002), stated that our Supreme
Court has held that a motion by a grandparent or a
third party for visitation affects a parent’s fundamental
right to make decisions regarding her child’s care, con-
trol, education, health, religion, and association. Foster
v. Foster, supra, 317–18.
The present case does not involve the irrevocable
severance of a parent’s rights; see, e.g., In re Shaquanna
M., supra, 61 Conn. App. 605; or the ‘‘forced intervention
by a third party seeking visitation . . . .’’ (Internal quo-
tation marks omitted.) Foster v. Foster, supra, 84 Conn.
App. 318. Rather, the motion filed by the plaintiff sought
modifications both to parenting time and holiday par-
enting time, modifications to the method and frequency
of communications between the parents, and an order
that the plaintiff be awarded final decision-making
authority with respect to the medical, dental, orthodon-
tic, and educational needs of the parties’ children. The
defendant has provided this court with no authority
that the denial of her requested continuance of the
postjudgment hearing between two parents who have
joint legal and shared physical custody of their children,
is directly linked to her constitutionally protected inter-
est in the care, custody, and control of her children.
Consequently, we conclude that the defendant has
failed to satisfy the second prong of Golding, in that
she has not met her burden of proving that the denial
of the requested continuance is a claim of constitutional
magnitude.
III
The defendant’s third claim on appeal is that the
court abused its discretion in denying her motion for
a continuance. We decline to review this claim.
‘‘The matter of continuance is traditionally within the
discretion of the trial judge, and it is not every denial
of a request for more time that violates due process
even if the party fails to offer evidence or is compelled
to defend without counsel. . . . There are no mechani-
cal tests for deciding when a denial of a continuance
is so arbitrary as to violate due process. The answer
must be found in the circumstances present in every
case, particularly in the reasons presented to the trial
judge at the time the request is denied. . . . [I]f the
reasons given for the continuance do not support any
interference with [a] specific constitutional right, the
[reviewing] court’s analysis will revolve around whether
the trial court abused its discretion. . . .
‘‘Decisions to grant or to deny continuances are very
often matters involving judicial economy, docket man-
agement or courtroom proceedings and, therefore, are
particularly within the province of a trial court. . . .
Whether to grant or to deny such motions clearly
involves discretion, and a reviewing court should not
disturb those decisions, unless there has been an abuse
of that discretion, absent a showing that a specific con-
stitutional right would be infringed. . . .
‘‘Our Supreme Court has articulated a number of
factors that appropriately may enter into an appellate
court’s review of a trial court’s exercise of its discretion
in denying a motion for a continuance. Although resis-
tant to precise cataloguing, such factors revolve around
the circumstances before the trial court at the time it
rendered its decision, including: the timeliness of the
request for continuance; the likely length of the delay;
the age and complexity of the case; the granting of
other continuances in the past; the impact of delay on
the litigants, witnesses, opposing counsel and the court;
the perceived legitimacy of the reasons proffered in
support of the request; [and] the defendant’s personal
responsibility for the timing of the request . . . .’’ (Cita-
tions omitted; internal quotation marks omitted.)
Watrous v. Watrous, 108 Conn. App. 813, 827–28, 949
A.2d 557 (2008); see also, e.g., State v. Rivera, 268 Conn.
351, 379, 844 A.2d 191 (2004).
‘‘In the event that the trial court acted unreasonably
in denying a continuance, the reviewing court must also
engage in harmless error analysis.’’ (Internal quotation
marks omitted.) Boccanfuso v. Daghoghi, 193 Conn.
App. 137, 169, 219 A.3d 400 (2019), aff’d, 337 Conn. 228,
253 A.3d 1 (2020); see also Mensah v. Mensah, 167 Conn.
App. 219, 223, 143 A.3d 622, cert. denied, 323 Conn. 923,
150 A.3d 1151 (2016). ‘‘[I]n order to establish reversible
error in nonconstitutional claims, the [appellant] must
prove both an abuse of discretion and harm . . . .’’
(Internal quotation marks omitted.) Cunniffe v. Cun-
niffe, 141 Conn. App. 227, 235, 60 A.3d 1051, cert. denied,
308 Conn. 934, 66 A.3d 497 (2013); see also State v.
Coney, 266 Conn. 787, 803, 835 A.2d 977 (2003) (declin-
ing to decide whether court’s denial of request for con-
tinuance was improper when defendant failed to suffi-
ciently demonstrate harm flowing from denial); Boccan-
fuso v. Daghoghi, supra, 170 (concluding that, even if
court abused its discretion in refusing to grant continu-
ance in order to present witness’ testimony, appellant
failed to demonstrate harm as consequence of denial
of motion).
In the present case, the defendant failed to brief ade-
quately how she was harmed by the court’s denial of
her request for a continuance. Notably, her appellate
brief does not recognize or discuss her burden in this
regard. As a result of the defendant’s failure to brief
the issue of harm, the plaintiff did not have the opportu-
nity in his appellate brief to respond to any harm analy-
sis. ‘‘Our practice requires an appellant to raise claims
of error in his original brief . . . so that the issue as
framed by him can be fully responded to by the appellee
in its brief, and so that [the appellate court] can have
the full benefit of that written argument.’’ (Internal quo-
tation marks omitted.) State v. Jose G., 290 Conn. 331,
341 n.8, 963 A.2d 42 (2009); see, e.g., Scalora v. Scalora,
189 Conn. App. 703, 722 n.20, 209 A.3d 1 (2019); see
also, e.g., State v. Toro, 172 Conn. App. 810, 815, 162 A.3d
63 (declining to review claim when appellant presented
harmful error analysis for first time in reply brief), cert.
denied, 327 Conn. 905, 170 A.3d 2 (2017).1 In the absence
of any analysis concerning how the defendant was
harmed by the denial of the continuance, we are unable
to conclude that the denial had any bearing on the
outcome of the hearing.
It is well established that ‘‘[w]e are not required to
review claims that are inadequately briefed. . . . We
consistently have held that [a]nalysis, rather than mere
abstract assertion, is required in order to avoid aban-
doning an issue by failure to brief the issue properly.
. . . Where the parties cite no law and provide no analy-
sis of their claims, we do not review such claims.’’
(Internal quotation marks omitted.) State v. Holmes,
176 Conn. App. 156, 185, 169 A.3d 264 (2017), aff’d, 334
Conn. 202, 221 A.3d 407 (2019). In the context of the
failure of a party adequately to brief how a challenged
evidentiary ruling was harmful, this court, on multiple
occasions, has declined to review a claim of error
related to such ruling. See, e.g., State v. Lyons, 203
Conn. App. 551, 569, 248 A.3d 727 (2021) (declining
to consider whether court’s admission of challenged
testimony was abuse of its discretion when appellant
failed to brief how it was harmed by court’s evidentiary
ruling); State v. Toro, supra, 172 Conn. App. 818 (declin-
ing to address claim when defendant failed to address
issue of harm adequately in principal brief). As with an
evidentiary claim, the claim of the defendant in the
present case is nonconstitutional in nature, and, there-
fore, the defendant bears the burden of demonstrating
both an abuse of the trial court’s discretion and resulting
harm. See, e.g., Cunniffe v. Cunniffe, supra, 141 Conn.
App. 235. In light of the defendant’s failure to brief and
analyze how she was harmed by the court’s denial of
her request for a continuance, we, accordingly, decline
to consider whether the court’s ruling was an abuse of
discretion.2
IV
The defendant’s final claim on appeal is that the court
abused its discretion in modifying custody orders. Spe-
cifically, the defendant claims that the court erred in
awarding the plaintiff final decision-making authority.
We disagree.
The following additional facts and procedural history
are relevant to the defendant’s claim. In the plaintiff’s
May 16, 2019 motion, the plaintiff sought amendments
to the parties’ parenting time, holiday parenting time,
parental communication practices, and medical and
educational final decision-making authority. Regarding
final decision-making authority, the plaintiff repre-
sented that ‘‘[t]he parties’ minor children have specific
and significant educational and medical needs and the
defendant has wilfully failed and refused to provide her
consent for the plaintiff to pursue various medical and/
or educational needs of the minor children, which have
been recommended by health care and educational pro-
viders and experts.’’ He alleged that the defendant’s
refusal to provide consent to the plaintiff to pursue
the recommendations of health care and educational
providers was ‘‘contrary to the well-being of the minor
children.’’
The plaintiff further represented that the defendant
had ‘‘made unilateral health care and/or educational
decisions regarding the minor children and [had] with-
held pertinent information from the plaintiff, which is
contrary to the parties’ joint legal and physical custody
and the minor children’s best interests.’’ The plaintiff
acknowledged that it was in the children’s best interests
that ‘‘the parties continue to have joint legal and physi-
cal custody . . . .’’ He maintained, however, that on
the basis of the defendant’s unilateral decision making,
withholding of information from the plaintiff, and
unreasonably withholding of consent for the plaintiff to
pursue recommendations of health care and education
providers, he should be granted ‘‘sole, exclusive, final
decision-making abilities with respect to the medical,
dental, orthodontic, and educational needs of the minor
children . . . .’’
The court held a two day hearing on the plaintiff’s
motion on August 8 and 9, 2019. Both parties testified
along with Cynthia Twiss, the interim director of special
services for public schools in Easton and Redding, and
the court heard closing remarks. At the conclusion of
the hearing, the court made findings on the record. The
court first found that ‘‘both parents are capable and
loving parents of their children’’ and stated that it had
no concerns about the well-being of the children when
they are with either parent. The court found that the
parties communicate poorly with each other. Specifi-
cally, it found that the plaintiff ‘‘tends to put forward
comprehensive scheduling plans for the future and [the
defendant], for whatever reason, seems reluctant to
commit in writing, by e-mail or text, to specific plans
and this creates problems with scheduling and timing.
So, she has not always made timely responses to
requests that have been made by [the plaintiff], and that
has to do with a number of issues, schedules, activities,
summer plans, therapist suggestions.’’
The court found: ‘‘It’s not really a question of whether
the parties have good things to contribute, because I
think both do as far as the—what’s best for the boys.
Both parties spend a lot of time with the boys. Both
parties are very acutely aware of their needs. There are
. . . two good heads to bring to bear here with regard
to parenting decisions. Both are attuned to the boys’
needs. Both have valid proposals to make and good
ideas as to what might be best for the boys. So, that
kind of joint communication is going to have to be
improved, but it is important that both parties have
input into the decision making with regard to what is
best for the boys, as—particularly with regard to such
areas as medical care, therapeutic care and education.
‘‘Nevertheless, at this point services are being denied
to the boys because of the inability of the parties to
reach mutual agreement on important issues. They have
already had disagreements with regard to the choice
of medical doctor for the boys. They’ve already had
disagreements regarding what and when a therapist
should be applied for in-home services. There are dis-
agreements looming at this point with regard to school-
ing for the boys and there’s already been disagreement
with regard to the educational plan the school put for-
ward for [the parties’ younger child] in particular . . .
requiring that there actually be a formal hearing at
which the questions arose whether . . . the school
plan should be followed or not. The parties disagreed
with regard to that issue. There’s been a . . . more
recent disagreement regarding the extended school
year that [the parties’ older child] had. A disagreement
in 2018, again in 2019, resolved only by basically its
being implemented by [the plaintiff] over the lukewarm,
perhaps, but otherwise objection of [the defendant].
‘‘So, these are all very important issues that cannot
remain in limbo going into the future. Somehow, there
has to be a . . . tiebreaker and a way to resolve it, and
I recognize that. I am compelled to follow the best
interests of the children as I apply those to the facts that
have been presented, applying the statutory criteria, of
course. But, I do find that the best interests of the boys
do require some changes at this point because of the
fact that there are some serious problems with getting
decisions made and I will be making some changes.’’
On August 12, 2019, the court issued its order on
the plaintiff’s motion for modification. With respect to
custody, the court issued the following order: ‘‘The par-
ties shall have joint legal custody of the minor children.
The parties shall be equally involved in all major deci-
sions affecting the children. The party with whom the
children are staying at the time will have the right to
make emergency decisions affecting the children. All
other important decisions affecting the health, welfare,
education, religious upbringing, guidance, discipline or
other aspect of the upbringing of the children shall be
made with the participation, involvement and agree-
ment of both parents. Neither party shall be entitled to
act unilaterally as to important decisions affecting the
children until there has been a bona fide attempt to
reach agreement. If, however, the parties are unable to
agree on a physical health, emotional health, or thera-
peutic treatment decision or selection of the providers
of such services, the plaintiff shall have the final say.
Physical and emotional health care appointments, as
well as therapeutic services, shall be scheduled to occur
on some of the parenting time of each parent.’’
‘‘Our standard of review of a trial court’s decision
regarding custody, visitation and relocation orders is
one of abuse of discretion. . . . [I]n a dissolution pro-
ceeding the trial court’s decision on the matter of cus-
tody is committed to the exercise of its sound discretion
and its decision cannot be overridden unless an abuse
of that discretion is clear. . . . The controlling princi-
ple in a determination respecting custody is that the
court shall be guided by the best interests of the child.
. . . In determining what is in the best interests of the
child, the court is vested with a broad discretion. . . .
[T]he authority to exercise the judicial discretion under
the circumstances revealed by the finding is not con-
ferred upon this court, but upon the trial court, and
. . . we are not privileged to usurp that authority or
to substitute ourselves for the trial court. . . . A mere
difference of opinion or judgment cannot justify our
intervention. Nothing short of a conviction that the
action of the trial court is one which discloses a clear
abuse of discretion can warrant our interference.’’
(Internal quotation marks omitted.) Baker-Grenier v.
Grenier, 147 Conn. App. 516, 519, 83 A.3d 698 (2014).
The defendant’s sole contention with respect to the
custody orders is that the court’s favorable findings as
to the defendant’s decision-making abilities are incon-
sistent with the court’s order providing the plaintiff
with final decision-making authority with respect to the
children’s physical health, emotional health, or thera-
peutic treatment decisions or selection of the providers
of such services. We disagree with the defendant.
The defendant emphasizes the court’s findings that
she is ‘‘very acutely aware’’ of the children’s needs, that
she has a ‘‘good [head] to bring to bear . . . with regard
to parenting decisions,’’ and that she has ‘‘valid propos-
als to make and good ideas as to what might be best
for the boys.’’ The court made these findings applicable
to both parents.
Significantly, the court expressly found that, although
the parties were both capable and loving parents, they
communicated poorly with each other and their inabil-
ity to agree on important issues resulted in the children
being denied therapeutic services. Specifically, the
court heard evidence that the children had not received
in-home therapy for approximately one year due to
the parties’ inability to agree on a provider. The court
additionally referenced disagreements with respect to
the children’s pediatrician. The court heard evidence
that the defendant unilaterally terminated the children’s
relationship with their pediatrician. Further, the court
referenced the defendant’s disagreement with the
school’s educational plan for the parties’ younger child,
and her objection to the continued participation of the
parties’ older child in an extended school year program.
The court found that there were ‘‘serious problems with
getting decisions made’’ and that a ‘‘tiebreaker’’ was
needed. On the basis of these findings, we cannot con-
clude that the court abused its discretion in determining
that an award of final decision-making authority was
necessary and that it was most appropriate that the
plaintiff be given final decision-making authority.3
The judgment is affirmed.
In this opinion ALEXANDER, J., concurred.
1
The defendant did not file a reply brief.
2
Although we decline to respond to the dissent on a point by point basis,
we are compelled to note the following. The dissent, despite acknowledging
that the defendant has the burden of demonstrating harm, fails to identify
any meaningful analysis of harm contained in the defendant’s appellate brief.
Instead, it points to the defendant’s ‘‘statement of facts’’ section of her brief,
in which she states that she was not familiar with the rules of evidence,
and that she did not enter any exhibits into evidence or call any witnesses
other than herself to testify during her case-in-chief. The only other reference
that the dissent identifies in the defendant’s appellate brief as demonstrating
an analysis of harm is the defendant’s statement in the ‘‘conclusion and
statement of relief requested’’ portion of her brief, in which she stated that
she ‘‘stood to lose the ability to make important medical and educational
decisions’’ for her children if the court granted the plaintiff’s motion.
In the absence of any briefing or analysis of harm, the dissent identifies
three ways in which the defendant may have been harmed by the court’s
ruling. First, the dissent goes beyond the defendant’s recitation of the facts
that she did not introduce any exhibits or call any additional witnesses, to
add that she also did not raise any objections. Second, the dissent states
that ‘‘given that the trial judge questioned the defendant extensively during
the hearing, an attorney surely would have raised an objection on her behalf.’’
The defendant does not make this argument in her brief. Third, the dissent
states that harm is demonstrated by the fact that the court granted the
plaintiff’s motion for modification. It is unclear how the dissent, in the
absence of any analysis regarding harm, could conclude that the denial of
the continuance had any bearing on the outcome of the plaintiff’s motion.
See, e.g., State v. Coyne, 118 Conn. App. 818, 824, 985 A.2d 1091 (2010)
(‘‘[a]bsent any analysis regarding harm, we cannot conclude that the admis-
sion of the subject evidence had any bearing on the trial’s outcome’’). In
sum, we do not agree with the dissent’s approach of deciding the case on
the basis of speculative arguments that the defendant never made.
3
The defendant maintains that ‘‘[t]o allow the plaintiff to ultimately make
the final decisions concerning the children is, in effect, sole custody . . . .’’
We conclude that this argument lacks merit. As this court has previously
held, ‘‘[f]inal [decision-making] authority in one parent is distinct from sole
legal custody.’’ Lopes v. Ferrari, 188 Conn. App. 387, 397, 204 A.3d 1254(2019); see also Desai v. Desai, 119 Conn. App. 224, 230, 987 A.2d 362 (2010)
(rejecting argument that grant of ultimate decision-making authority to one
parent is in effect order of sole custody).