LETICIA CLOUGHERTY v. KEVIN CLOUGHERTY
(AC 36886)
(AC 36887)
Lavine, Beach and Mihalakos, Js.
Argued November 18, 2015—officially released February 9, 2016
(Appeal from Superior Court, judicial district of New London, Regional Family Trial Docket at Middletown, Gordon, J. [dissolution judgment]; Adelman, J. [motion to modify custody, motion for counsel fees].)
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William H. Cashman, for the appellant-appellee (defendant).
Kenneth J. McDonnell, for the appellee-appellant (plaintiff).
Opinion
LAVINE, J. The defendant, Kevin Clougherty, appeals from the judgment of the trial court denying his postdissolution motion to modify the court‘s custody order regarding the parties’ minor child. The defendant claims that the trial court abused its discretion by denying his motion to modify physical custody. The plaintiff, Leticia Clougherty, cross appeals from the judgment of the trial court denying her motion for additional attorney‘s fees. We affirm the judgment of the trial court.
The following undisputed facts found by the court, and procedural history, are relevant to this appeal. The parties were married in Texas in 2003. Originally, the plaintiff was from Texas, and the defendant was from Massachusetts. They moved to Connecticut in 2004 because the defendant had a job opportunity in this state. The plaintiff worked for her family‘s business, Aztec Roofing and Sheet Metal Corporation (Aztec Roofing), in Houston, Texas, and continued to do so when the parties moved to Connecticut. She traveled back and forth to Houston on a regular basis during the marriage. Her travel became a major issue between her and the defendant. The couple had a son in 2006. By June, 2008, the marriage had broken down irretrievably, and the plaintiff commenced an action for dissolution of marriage. The plaintiff wanted to return to Houston with the child because of her family and employment ties to Texas, but the defendant wanted thе child to remain in Connecticut.
The court, Gordon, J., granted the judgment of dissolution on December 15, 2009. As this court recounted in a previous appeal in this case: “The court also awarded the parties joint legal custody and shared physical custody of their child. In doing so, the court observed that living in Connecticut had made the plaintiff physically and emotionally ill because her life was completely integrated in Texas, where she enjoyed ‘a rich and wonderful life.’ The court found that the plaintiff lacked a job or any significant ties in Connecticut, and had not thrived living away from her family of origin and the family business, which provided her with the identity that she needed. In discussing where the child primarily would reside, the court determined that the plaintiff was ‘doing a little bit better of a job as a parent’ than thе defendant at that time but not in any great qualitative sense. The court expressed concern over the child‘s ‘failure to thrive’ during the disintegration of the parties’ relationship. The court also observed that the child had a close relationship with the plaintiff‘s large, extended family in Texas, which resulted in his experiencing a richer and more vivacious life there than in Connecticut. The court, therefore, concluded that it was in the child‘s best interest to allow the plaintiff to return to Texas with the child. Accordingly, the court ordered the parties to maintain two residences for the child,one in Texas with the plaintiff and the other in Connecticut with the defendant, and it set forth a visitation schedule for the defendant.” Clougherty v. Clougherty, 131 Conn. App. 270, 271–72, 26 A.3d 704, cert. denied, 302 Conn. 948, 31 A.3d 383 (2011).
“[T]he defendant filed (1) a motion seeking to have a supplemental examination of the plaintiff and her family in Texas, (2) a motion to clarify the judgment with respect to various terms of the visitation schedule, and (3) a motion to open the judgment.” Id., 272. Judge Gordon denied all of the motions,
A little more than five months later, on February 23, 2012, the defendant filed the motion for modification of custody at issue in the present appeal, claiming that there had been a material change in circumstances and that it was in the best interests of the child to modify the custody order. On July 12, 2012, the court, Shluger, J., ruled on a number of motions filed by the plaintiff. Judge Shluger awarded her $15,000 in attorney‘s fees to defend the defendant‘s motion for modification of custody. On December 12, 2013, the plaintiff moved for additional аttorney‘s fees, stating that she had exhausted the initial award of $15,000. She filed an affidavit of attorney‘s fees on April 14, 2014, seeking an additional $22,003.87.
The court, Adelman, J., held a hearing on the defendant‘s motion for modification and the plaintiff‘s motion for additional attorney‘s fees on April 9 through April 11, 2014. The court heard testimony from both parties, a friend and former coworker of the defendant in Texas, and the guardian ad litem, Attorney Susan Perrin Geenty.1 The parties presented evidence, including copies of numerous e-mail and text messages between them, and a written psychological evaluation prepared by Keith Roeder, doctor of psychology, in June, 2013, that updated Roeder‘s initial psychological evaluation completed in 2009. The court issued a memorandum of decision on May 5, 2014, finding that there was no material change in circumstances warranting a change of physical custody, and therefore denied the defendant‘s motion to modify custody. The court also denied the plaintiff‘s December 12, 2013 motion for additional attorney‘s fees. The defendant‘s appeal and the plaintiff‘s cross appeal followed and were consolidated. Additional facts will be set forth as necessary.
I
The defendant claims that the court abused its discretion when denying his postdissolution motion to modify custody in finding that no material change in circumstances had occurred since the dissolution of the marriage, arguing that the child is not thriving with theplaintiff, and suggesting that they are no longer enjoying a “rich and wonderful life” in Texas. He sought to demonstrate this in the trial court by providing a litany of the plaintiff‘s economic misfortunes and examples of when she purportedly had been inattentive as a parent to the child‘s welfare and academic needs. He raises the same arguments on appeal.
The following additional facts are relevant to this claim. In regard to the plaintiff‘s financial situation, at the time of the dissolution, she worked for her family‘s business, Aztec Roofing, which then was in chapter 11 bankruptcy proceedings. After the dissolution, the company converted from a chapter 11 to a chapter 7 bankruptcy. This resulted in Aztec Roofing‘s dissolution. Judge Adelman determined that this was not a material change in circumstances, noting that Judge Gordon had recognized at the marriage dissolution trial that the business already was in serious financial trouble. Judgе Adelman also found that since the dissolution judgment, which contained the initial custody order, the plaintiff had opened her own company, Elias Commercial Roofing Systems.
The defendant presented at the hearing before Judge Adelman, and reiterates in his brief on appeal, numerous allegations that the plaintiff was financially irresponsible and inattentive to the child‘s physical needs. The court determined that “[d]espite his claims, there is no proof that the plaintiff and the minor child are homeless, going without food, or that the child‘s physical needs are not adequately being met.” Although thedefendant attempted to argue that his home was larger and in a nicer neighborhood, the court stated that this was “somewhat offensive,” and noted that the “Connecticut courts do not award custody of minor children to the wealthier parent . . . .” See, e.g., In re Juvenile Appeal (Anonymous), 177 Conn. 648, 661–62, 420 A.2d 875 (1979) (“[t]he parent‘s loss of custody should not . . . be premised solely on tangible material benefits to the child at the expense of the intangible, non-material advantages which a parent‘s care can provide even when the parent has only limited financial resources” [internal quotation marks omitted]).
The defеndant also alleged that there was a material change in circumstances due to the academic needs of the child, who had begun to attend school. The court concluded that this did not constitute a material change in circumstances, as Judge Gordon‘s custody order provided adjustments to the parental access schedule in consideration that the child would grow up and attend school.2
The defendant claimed that the child has not thrived in Texas because the plaintiff has been inattentive to his academic needs. The defendant alleged that the child was often tardy to school, and the plaintiff neglected to help the child with homework and other academic matters. The guardian ad litem testified that the defendant was more attentive to the аcademic needs of the child and recommended that the plaintiff improve in this area.
The court also addressed the difficulties of the parties in managing their coparenting responsibilities, which is relevant on appeal because the defendant claims that a material change in circumstances occurred since the dissolution because he is now a “better” parent than the plaintiff.3 The court determined that the plaintiff and the defendant did not communicate properly, nor coparent in a reasonably effective manner. The court recognized that the plaintiff bears some of the blame in the problems with coparenting, stating that “she often fails to communicate with the defendant and even has provided him with incorrect or false information.” It noted that the defendant “[was] certainly the more attentive parent and more than compensates for any inadequacies on the part of the plaintiff. It is quite clear that the dual primary residences has only worked so well because of the defendant‘s complete cоmmitmentto seeing his son despite the cost in travel related expenses, maintaining a second residence in Houston, and the physical toll of going back and forth between Texas and Connecticut so often.” The court noted further that much of the child‘s academic success was likely due to the defendant‘s committed efforts and involvement in the child‘s life.
However, the court also noted the “truly horrible behavior of the defendant in the years between the dissolution decree and the [time of the hearing].” The defendant admitted, and apologized at the hearing, that he tried to intimidate the plaintiff to accede to his custodial demands. He hired a former Federal Bureau of Investigation (FBI) agent who on one occasion threatened the plaintiff with criminal action just moments after she brought the child to the defendant for visitation. He hired the same FBI agent to contact the creditors of the failed family business and encourage them to reopen the bankruptcy proceedings in hopes of exacerbating the plaintiff‘s financial difficulties. The defendant‘s aggressive behavior toward the plaintiff was a substantial factor for why the guardian ad litem and Roeder both recommended that the court not alter the existing custody arrangement. The court noted that, although the defendant has obeyed the court‘s order, “[t]his behavior was prompted by the defendant‘s inability to accept the judgment of the court even after his
The court further found that the “[guardiаn ad litem] has very serious concerns about the future if the court should order the minor child to live primarily in Connecticut. She said with little hesitancy or qualification that if the child were to return to Connecticut, the defendant would destroy the plaintiff and her role as the child‘s mother.” The court recognized that the plaintiff must heed the guardian ad litem‘s and Roeder‘s recommendations that she be more attentive, but also noted that the plaintiff was dealing with “the demands on a single mother who is also running a business . . . .” Overall, the court concluded that, although the plaintiff exhibited obvious shortcomings,4 “it is hardly grounds to make major changes to the custodial orders.” The court recognized that “[b]oth parties have demonstrated parental behavior that is not in the best interests of the child,” but ultimately found that “[t]herе have been no significant changes in circumstances since the filing of the dissolution judgment on December 15, 2009.” The defendant claims that this represents an abuse of discretion.
The standard of review in domestic relations cases is well established. “An appellate court will not disturb a trial court‘s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on thefacts presented. . . . In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action . . . . Thus, unless the trial court applied the wrong standard of law, its decision is accorded great deference because the trial сourt is in an advantageous position to assess the personal factors so significant in domestic relations cases . . . .” (Internal quotation marks omitted.) Coury v. Coury, 161 Conn. App. 271, 281, 128 A.3d 517 (2015). “A mere difference of opinion or judgment cannot justify the intervention of this court. 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.) Lane v. Lane, 64 Conn. App. 255, 257, 779 A.2d 859 (2001).
”
Not all changes occurring in the time between the prior custody order and the motion for modification are material. See Simons v. Simons, 172 Conn. 341, 344, 374 A.2d 1040 (1977). “Although there arе no bright-line rules for determining when a material change in circumstances warranting the modification of custody has occurred, there are several relevant considerations, including whether . . . the change was not known or reasonably anticipated when the order was entered, and the change affects the child‘s well-being in a meaningful way.” 27C C.J.S. 255, Divorce § 1053 n.6 (2005).
In reviewing the record, we conclude that the court did not abuse its discretion in determining that there has not been a material change in circumstances since the dissolution of the marriage. The dissolution court found that the plaintiff did not have any connection to Connecticut and that it was in the best interests of the child for the plaintiff to return to Texas where they both could thrive and enjoy a “rich and wonderful life” surrounded by the plаintiff‘s extended family. To prevail on his motion to modify custody, the defendant had to do more than list every assertedly detrimental change in the parties’ and child‘s lives since the judgment of dissolution. He had to demonstrate that a material change in circumstances occurred that
We first turn to the defendant‘s assertion that a material change in circumstances existed because of the plaintiff‘s financial issues. We conclude the court did not abuse its discretion in determining that the failure of the family business was not a material change in circumstances. The defendant failed to demonstrate how the failure of the family business altered the dissolution court‘s finding that it was in the child‘s best interests to have his primary residence in Texas with the plaintiff. Judge Adelman found that the child‘s physical needs were being met and the child was doing well in school there.
The defendant contends that the court misunderstood why he entered evidence comparing his financial situation to that of the plaintiff, arguing that it was not to show that his greater financial position entitles him to custody of the child, but rather to demonstrate that the plaintiff has been financially irresponsible. He asserts that the plaintiff‘s financial issues have negatively affected the child‘s welfare. Regаrdless of the cause of the plaintiff‘s economic misfortunes, the court determined that the child‘s physical needs were being met under the existing custody order.
We next turn to the defendant‘s arguments that there was a material change in circumstances due to the child‘s academic needs. In regard to the child‘s entering elementary school, the court did not abuse its discretion in determining that this was not a material change in circumstances. At the time of dissolution, Judge Gordon contemplated that the child would grow up and attend school in the state of his primary residence. Furthermore, Judge Adelman granted the defendant‘s motion to modify visitation, adjusting the time the defendanthas with the child to account for the child‘s attending school.
The defendant also argues that the court abused its discretiоn by not finding a material change in circumstances because the child is struggling in school due to the plaintiff‘s inattentiveness, and therefore he is not thriving in Texas. The argument fails because the record supports the court‘s determination that the child was doing well in school. Even if one assumes much of the child‘s academic success was due to the defendant‘s efforts, the joint custody order contemplated that both parents would be involved in the child‘s life and contribute to his welfare. The fact that the child was doing well in school in Texas suggests that the custody order was working as intended in this respect. It was not an abuse of discretion for Judge Adelman to determine that there was no material change in circumstances regarding the child‘s academic performance.
As to the plaintiff‘s рarenting abilities, the court found that, although the plaintiff had been inattentive in some instances as a parent, “[m]any of [the defendant‘s] allegations speak to why he considers himself to be a better candidate of [the child‘s] physical custody, rather than to the changes in circumstances.” The defendant has pursued the same course on appeal, emphasizing that Judge Gordon stated that, at the time of the dissolution, “[the plaintiff] is doing a little bit better of a job as a parent than [the defendant] . . . .” The defendant insists that there has been a material
The defendant on appeal again makes clear why he thinks he is the better parent, but does not demonstrate how the court abused its discretion in determining that there was no material change in circumstances. The court certainly recognized that the plaintiff must improve her parenting skills, but noted that the defendant has his own shortcomings to address for the joint custody arrangement to work. As previously stated, the court found that under the existing custody order the child‘s physical needs were being met, and the child was doing well in school. Thus, the court did not abuse its discretion as it had a reasonable basis to conclude that there has been no material change in circumstances due to the plaintiff‘s parenting ability. Cf. Sheiman v. Sheiman, 72 Conn. App. 193, 195–96, 199–200, 804 A.2d 983 (2002) (affirming trial court‘s finding of material change in circumstances and modification of custody to award plaintiff sole custody where defendant engaged in erratic and unreasonable behavior, was loudand abusive to family services worker and counsel, frightened child to point that child did not want to return to defendant‘s home, and court found no expressions of affection between defendant and child). Furthermore, the fact that both the guardian ad litem and the psychiatrist recommended that the child remain in Texas with the plaintiff supports the trial court‘s conclusion that there was no material change in circumstances that altered the dissolution court‘s initial finding that it was in the child‘s best interests to have primary residence in Texas with the plaintiff.6 See Kelly v. Kelly, supra, 54 Conn. App. 55. We repeat: not every change in circumstances is material; and not every material change in circumstances necessarily affects the best interests of the child. To conclude otherwise would be to encourage microscopic analysis of every decision made by a custodial parent in circumstances such as these.
II
We turn to the plaintiff‘s cross appeal. The plaintiff claims that the court abused its discretion in denying her motion for additional attorney‘s fees to defend the defendant‘s motion for modification of custody on the ground that it would be inequitable in light of the defendant‘s child support and visitation expenses. She argues that the court erred because there is no statutory basis in
The following additional facts are relevant to this claim. Judge Shluger awarded
The defendant submitted his financial affidavit, in which he indicated that he spends more than $50,000 annually to fulfill his parenting obligations in Texas, which includes renting a second residence in Houston and significant travel costs. The court noted that “[w]hile it is clear that the defendant earns significantly more than the plaintiff does, he is paying the full child support amount and bearing all the cost of his travel and living expenses to accommodate the current parental access schedule. The court will continue the unequal split of the [guardian ad litem] fees,7 but will not award further legal fees.” (Footnote added.) In regard to child support, the dissolution judgment contemplated that the defendant would pay unallocated alimony and child support until December 31, 2012. The apparent basisof the plaintiff‘s argument is discrepancies between the parties’ financial affidavits regarding child support. The court did not make a finding as to the exact amount the defendant is paying in child support, stating only that he was paying the “full child support amount.” The court ultimately denied the plaintiff‘s motion for additional attorney‘s fees, finding that “[d]ue to the extraordinary expenses of the defendant to meet his parental duties in Texas, the awarding of fees to the plaintiff for this action would not be equitable.” On May 21, 2014, the plaintiff filed a motion to reargue, which the court denied. This cross appeal followed.
The plaintiff sought additional attorney‘s fees pursuant to
“In making an award of attorney‘s fees under [
“Under the abuse of discretion standard of review, [w]e will make every reasonable presumption in favor of upholding the trial court‘s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) Marcus v. Cassara, supra, 142 Conn. App. 359.
On the basis of our review of the record, we conclude that the trial court did not abuse its discretion in denying the plaintiff‘s motion for additional attorney‘s fees. The plaintiff argues that
The plaintiff further contends that the court abused its discretion because it found that the defendant is paying more in child support than he actually is paying. The court did not make a finding as to the exact amount the defendant is paying, stating only that he is paying the “full child support amount.” The plaintiff has failed to demonstrate how this alleged discrepancy caused the court to abuse its discretion in failing to award additional attorney‘s fees. The court denied the plaintiff‘s motion because it found that “[d]ue to the extraordinary expenses of the defendant to meet his parental duties . . . the awarding of fees to the plaintiff for this action would not be equitable.” The court could
As a cоrollary, the plaintiff also claims that she has no liquid assets and the failure to award her additional fees will undermine the court‘s existing financial orders regarding child support. She argues that she will now have to use her child support payments to pay hercounsel fees. The court did not make any such finding. Furthermore, the court was not obligated to award the plaintiff additional attorney‘s fees merely because she exhausted Judge Shluger‘s initial award of $15,000 to defend the defendant‘s motion to modify custody. Marcus v. Cassara, supra, 142 Conn. App. 358–59 (stating that language of
The plaintiff‘s final argument is that there was no change in the parties’ financial circumstances since the time of the dissolution that would warrant a change in child support or the allocation of visitation expenses between the parties. She cites case law in her brief holding that the party seeking modification of financial orders bears the burden of proving a material change in circumstances. This argument misses the point because the court did not modify the allocation of child support and the visitation costs, but merely considered such costs as a factor in ruling on the plaintiff‘s motion for additional attorney‘s fees.
The judgment is affirmed.
In this opinion the other judges concurred.