162 Conn.App. 261
Conn. App. Ct.2016Background
- Hector Morera and Stephenie Thurber divorced; court incorporated a separation agreement and awarded sole legal custody of the children to Thurber with detailed parental access orders (June 18, 2012).
- Court later modified access, ordering all contact by Morera to be directed and supervised by Klingberg Institute and referring the matter to Family Relations; also ordered parties to seek judicial permission before filing motions.
- Morera filed a July 2, 2014 request for leave to file postdissolution motions: (1) to modify custody/access (restore joint custody and prior visitation) and (2) for contempt based on four alleged violations by Thurber.
- Thurber objected to the request for leave. The trial court denied leave to file the modification motion without holding a probable cause hearing and granted leave to proceed on only two of the four contempt allegations (privacy of calls and twice-weekly e-mail updates), denying the other two.
- Morera appealed. During the appeal the trial court (March 11, 2015) granted leave to pursue a later modification request as to his son, rendering that part of the appeal moot; no final judgment disposed of all contempt claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court was required to hold a probable cause hearing under Practice Book § 25-26(g) after a timely objection to leave to file a modification motion | Morera: § 25-26(g) requires a hearing (uses "shall") when an objection is filed; court erred by denying leave without hearing | Thurber: (implicit) court acted within discretion; no hearing required or unnecessary here | Court: Reversed — § 25-26(g) is mandatory; a probable cause hearing is required when a timely objection is filed |
| Whether the trial court abused its discretion by denying Morera’s motion to modify on the merits | Morera: denial improper because factual allegations warranted leave/hearing | Thurber: motion legally insufficient and lacked substantial change of circumstances | Issue not decided on merits — remanded for probable cause hearing; merits not reached due to procedural error |
| Whether portion of appeal concerning modification as to son is moot | Morera: seeks relief on both children | Thurber: (implicit) subsequent order granting leave as to son moots that part | Court: Dismissed as moot — trial court granted leave re: son during pendency of appeal |
| Whether appellate court has jurisdiction to review denial of leave on two contempt claims where other contempt claims were left for hearing | Morera: challenges denial of leave on two contempt grounds | Thurber: (implicit) partial determination should be appealable | Court: Dismissed for lack of jurisdiction — no final judgment because some contempt claims remained to be heard |
Key Cases Cited
- Statewide Grievance Committee v. Rozbicki, 219 Conn. 473 (rule construction principles applied to Practice Book)
- Banks v. Thomas, 241 Conn. 569 (appellate authority to decide whether Practice Book provisions are mandatory or directory)
- Lostritto v. Community Action Agency of New Haven, Inc., 269 Conn. 10 (interpretation significance when statute uses both "shall" and "may")
- Troxel v. Granville, 530 U.S. 57 (federal liberty interest in parent-child relationship)
- New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 502 (mootness and appellate jurisdiction principles)
- Bucy v. Bucy, 19 Conn. App. 5 (partial rulings on contempt not final; appeal dismissed)