69 Conn. App. 209 | Conn. App. Ct. | 2002
Opinion
This is an appeal from the denial of the application of the defendant, Ridgely W. Brown, for a temporary order restraining the plaintiff, Heather M. Brown, from relocating their children to a neighboring town and enrolling them in that town’s school system in contravention of the parties’ dissolution judgment.
The following facts are pertinent to the defendant’s appeal. The parties’ marriage was dissolved on May 19, 1997. Pursuant to an agreement of the parties that was incorporated into the dissolution decree, the court ordered joint custody of the parties’ four minor children and set out a visitation schedule. It was contemplated
Following a hearing on the defendant’s application, the court found that the reason for the move was legitimate because one son is autistic and requires special education that is not available in Darien. He previously had been enrolled in a therapeutic day program at the Cooperative Education Services some twenty-five minutes away. One of the other children also is benefiting from the New Canaan special education program. The court found that all of the children have benefited from the move because the school is only two miles from their New Canaan residence.
In this appeal, the defendant concedes that it is in the best interests of the children to remain in the New Canaan school system. The defendant also indicated that he plans to move to New Canaan to be available for the children. The defendant asserts that this appeal is not moot, however, because he cannot permit the Ireland mode of analysis to be the law of the case in the event that there are further attempts at relocation.
“Mootness implicates the court’s subject matter jurisdiction and is thus a threshold matter for us to resolve. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the
“Our cases reveal that for an otherwise moot question to qualify for review under the capable of repetition, yet evading review exception, it must meet three requirements. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot.” (Citation omitted; internal quotation marks omitted.) In re Jeffrey C., 64 Conn. App. 55, 65, 779 A.2d 765, cert. granted on other grounds, 258 Conn. 924, 783 A.2d 1027 (2001).
The appeal is dismissed.
In this opinion the other judges concurred.
At the outset, we acknowledge that “decisions either granting or denying temporary injunctions are not final judgments and are therefore not immediately appealable.” Doublewal Corp. v. Toffolon, 195 Conn. 384, 389, 488 A.2d 444 (1985). In this case, the defendant’s application for a temporary injunction is more appropriately considered in the nature of a temporary custody request, as he sought to have the children live with him during the school week. Under the rationale of Madigan v. Madigan, 224 Conn. 749, 754-55, 620 A.2d 1276 (1993), therefore, the trial court’s ruling is an appeal-able final judgment.
In his brief, the defendant also challenges the court’s order granting the plaintiffs application for relief from abuse. During the pendency of this appeal, the plaintiff filed a motion to dismiss the appeal. This court dismissed the portion of the appeal challenging the plaintiffs application for relief from abuse and, therefore, we do not address that issue.