Lasky v. Pivnick, No. Fa00 037 28 95 S (May 25, 2000)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION RE: MOTION TO DISMISS Randi Lasky, wife of Mitchell Lasky and mother of two minor children, died on or about July 23, 1996. On or about December 9, 1999, Susan and Barry Pivnick, the children's maternal grandparents, were awarded visitation with the children.¹ Soon thereafter, Mitchell Lasky's current wife, Iris Lasky, adopted the children on December 22, 1999.

On March 15, 2000, the plain Iris and Mitchell Lasky, filed a "Petition for Termination of Visitation Rights by Former Grandparents," in which they sought termination of the defendants' visitation rights. In response, the defendants, Susan and Barry Pivnick, filed a motion to dismiss based on improper venue on April 13, 2000.

The plaintiffs also argue that the court does not have jurisdiction under Castagno v. Wholean, 239 Conn. 336, 684 A.2d 1181 (1996), to interfere with their visitation decisions because the family is now intact and any disruption of the family unit ended when the children were adopted. (Plaintiffs' Memorandum of Law, p. 3.) In response, the defendants argue that "[a] family where one parent has died cannot become ``reintact' for the purposes of [General Statutes § 46b-59 andCastagno v. Wholean]." (Defendants' Memorandum of Law, pp. 2-3).

ISSUES CT Page 6411 Should the defendants' motion to dismiss based on improper venue be granted?

For the purpose of third party visitation of children, does a family once disrupted by the death of one parent, become an intact family after the surviving parent remarries and the new spouse adopts the children?

DISCUSSION "The motion to dismiss shall be used to assert . . . improper venue." Practice Book § 25-13(a)(3). "Venue . . . concerns only the place where the case may be tried and venue requirements are created for the convenience of the parties." Haigh v. Haigh, 50 Conn. App. 456, 465,717 A.2d 837 (1998). "Venue is a matter that goes to process rather than substantive rights." (Internal quotation marks omitted.) Id., 466.

As stated above, the plaintiffs commenced this action by filing a "Petition for Termination of Visitation Rights by Former Grandparents." Just because the plaintiffs labeled this pleading a "petition" does not necessarily make it so. Rather, the substance of the claim asserted dictates what type of pleading has been filed. See Whalen v. Ives,37 Conn. App. 7, 16, 654 A.2d 798, cert. denied, 233 Conn. 905, 657 A.2d 645 (1995) ("we look to the substance of the claim rather than the form"). Here, the "petition" is clearly a motion to modify the order which previously granted visitation rights to the defendants. Even if the plaintiffs are only asking for termination of the defendants' visitation rights and not a modification of such rights, this would still be a modification as any change to the original order will necessarily modify the order. The proper vehicle to modify an order concerning visitation is by way of a motion to modify visitation — not a petition for termination of visitation rights. Thus, the court will treat the plaintiffs' petition as a motion to modify visitation.

Although there is no statute, practice book section or case expressly stating that a motion to modify visitation must be filed in the same court in which the original visitation action was decided, common sense mandates such a result. A motion to modify the original order is not a new action; rather, it is a subsequent proceeding regarding the original order or a continuation of the original action in which visitation was granted. As such, any subsequent motions affecting the original visitation order should be filed in the same court where the original visitation action was decided.

The plaintiffs argue that venue is proper because General Statutes § 46b-59 "permits any court to modify orders issued pursuant to §46b-59 in an action for declaration of parents rights." (Plaintiffs' CT Page 6412 Memorandum of Law, p. 4.) General Statutes § 46b-59, however, does not mention or address venue. Rather, it merely expresses that a previous grant of visitation rights does not prohibit a court from later determining custody, parental rights, adoption or visitation issues concerning the same child. General Statutes § 46b-59 provides, in pertinent part, that "[t]he grant of . . . visitation rights shall not prevent any court of competent jurisdiction from thereafter acting upon the custody of such child, the parental rights with respect to such child or the adoption of such child and any such court may include in its decree an order terminating such visitation rights." As such, the plaintiffs' argument is without merit.

Therefore, the judicial district of Fairfield at Bridgeport is an improper venue and the proper venue is the judicial district of Hartford/New Britain at Hartford.

Although venue is improper, the motion to dismiss should be denied. General Statutes § 51-351 provides that "[n]o cause shall fail on the ground that it has been made returnable to an improper location." By enacting General Statutes § 51-351, "the legislature intended to authorize the transfer of cases;" (internal quotation marks omitted)Sprague v. Commission on Human Rights Opportunities, 3 Conn. App. 484,486, 489 A.2d 1064 (1985); and "to provide the remedy of transfer rather than dismissal." (Internal quotation marks omitted.) Cassella v. Freitas, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 158041 (July 24, 1997, D'Andrea, J.) "Therefore, improper venue would only be grounds to transfer the matter, and not grounds for a motion to dismiss." (Internal quotation marks omitted.) Espowood v. Bristol, Superior Court, judicial district of New Haven at New Haven, Docket No. 385989 (August 6, 1996, Zoarski, S.T.R.) (17 Conn.L.Rptr. 298, 300).

Pursuant to General Statutes § 51-347b (a) and Practice Book §12-1, the court has the authority, upon its own motion, to order the transfer of any action to a superior court location in another judicial district. See also Richardello v. Butka, 45 Conn. Super. Ct. 336, 340 n. 2,717 A.2d 298 (1997) (same). As such, the court will transfer this matter to the judicial district of Hartford/New Britain at Hartford.

With respect to the second issue, in Castagno v. Wholean, the Connecticut Supreme Court held that grandparents or any third party seeking visitation rights under General Statutes § 46b-59 "must demonstrate disruption of the family sufficient to justify state intervention." Supra, 239 Conn. 338. If there is no such disruption, then the court does not have subject matter jurisdiction to decide the issue of visitation Id. The court noted that sufficient disruption may be found upon the allegation of "the death of a parent or the de facto separation CT Page 6413 of the parents." Id., 352. It should be noted that the issue of whether previously granted visitation rights terminate upon the family becoming intact again after the disruption has ended was not raised in Castagno v.Wholean and is one of apparent first impression.

Only one similar case was found which held that a previously disrupted family had once again became intact. See McClure v. Perkins, Superior Court, judicial district of New London at New London, Docket No. 548540 (July 28, 1999, Solomon, J.) (25 Conn.L.Rptr. 166). In that case, the court found that, although the paternal grandmother established a sufficient disruption of the family unit given the termination of the father's parental rights, she did not have standing to seek visitation rights given that a newly-intact family had emerged and existed for four years prior to her petition. See id. In doing so, the court noted that "it was incumbent upon the [grandmother] to timely assert whatever rights she may have had at the time they were allegedly abridged." Id., 167 n. 1. That case, however, is distinguishable from the case at bar as it did not involve a challenge to the continuation of previously granted visitation rights. Additionally, the defendants' assertion of their rights to visitation in this case was timely as they sought and were awarded such rights after their daughter's death but before the children were adopted. Thus, there was no emergence and prolonged existence of a newly intact family prior to the defendants' petition for visitation rights.

Another similar case is Guimento v. Popp, Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. 361272 (May 27, 1999,Frankel, J.) (24 Conn.L.Rptr. 600), which involved maternal grandparents who sought and were granted visitation rights upon the death of their daughter. In response to the grandparents' effort to expand their visitation rights, the father filed. a motion to dismiss based onCastagno v. Wholean, "claiming that the [grandparents] have not demonstrated a disruption of the family sufficient to justify state intervention." Id. The court denied the motion to dismiss as it found that the grandparents "provided sufficient allegations to meet [theCastagno v. Wholean] requirements in that they allege the death of the parent, a close relationship with the grandchildren and the claim that the grandchildren have lived for extended periods of time in their home." Id. As such, the disruption of the family unit that established standing for the initial grant of visitation rights to the grandparents was sufficient to establish standing for the continuation of such rights.

In the present case, the defendants already established a sufficient disruption in the family unit — the death of their daughter — and were granted visitation rights with their grandchildren. Although the children have since been adopted by their stepmother, the original family CT Page 6414 unit has been permanently disrupted by the biological mother's death and this disruption obviously continues to the present day. The creation of a "new intact family unit" via marriage and adoption, does not vitiate the rights of third parties who may have acquired rights as a result of the disruption of the "old intact family unit." Once acquired through proper legal process, third party rights are not automatically extinguished because of a change in status such as adoption. Therefore, the defendants' have standing in regards to the continuation of their previously granted visitation rights with their grandchildren. Whether those visitation rights should be modified because of a change in circumstances, is for the Superior Court in Hartford to determine.

CONCLUSION Based on the foregoing, the defendants' motion to dismiss based on improper venue is denied and the plaintiff's standing to seek visitation rights is affirmed. Further, this matter is transferred to the judicial district of Hartford/New Britain at Hartford for disposition on the merits.

CUTSUMPAS, J.