212 Conn. 63 | Conn. | 1989
The principal issue in this case is whether the trial court had subject matter jurisdiction to modify a custody decree issued by a Superior Court of the Commonwealth of Puerto Rico. The prior decree awarded the custody of Orlando Perez III (Lanny) to his paternal grandparents, the defendants Orlando Perez, Sr., and Lorraine Perez.
The facts of this case present a tortuous and unhappy history of legal bickering over the custody of the minor child. The plaintiff married the defendant Orlando Perez, Jr., on January 29, 1983, in Middletown. On June 25,1983, she gave birth to Lanny, the only child of the marriage. The couple and their son lived with the paternal grandparents in Portland until early 1984, when Orlando, Jr., and the plaintiff separated. Thereafter, Lanny continued to live with his paternal grandparents. In February, 1984, the plaintiff commenced dissolution proceedings in the Superior Court for the judicial district of Tolland. Shortly thereafter, Orlando, Jr., fled with Lanny to Florida and later to Puerto Rico. He then initiated custody proceedings in the Superior Court of Puerto Rico. In September, 1984, the Connecticut trial court rendered judgment dissolving the marriage and, with the plaintiff’s assent, deferred resolution of Lanny’s custody to the Puerto Rico courts. On November 1, 1984, the Puerto Rico court entered a decree awarding custody to the paternal grandparents, and granting the plaintiff reasonable visitation rights.
On March 25, 1985, the plaintiff filed a petition for modification in the Connecticut Superior Court, seeking custody of her son. That court, Kelly, J., denied the plaintiff’s request for custody, but granted her visitation rights additional to those granted in the 1984 Puerto Rico decree. On the plaintiff’s appeal, the Con
A hearing on the plaintiff’s contempt motion was held on February 16, 1988. The defendants, however, did not attend. The trial court continued the hearing to February 19, 1988, and ordered the defendants to return Lanny to the court on that date.
Because the March, 1985 modification petition had not been decided on remand, the trial court treated the February, 1988 petition as a reclaim for a hearing on the original petition. The court conducted hearings on the plaintiff’s petition on various days from April 4, 1988, to April 21,1988. While the hearings were in progress, Orlando Perez, Jr., and Orlando Perez, Sr., appeared in the Superior Court of Puerto Rico and obtained a resolution asserting that the Puerto Rico court continued to have jurisdiction over Lanny’s custody. The resolution, dated April 15, 1988, indicated that the Superior Court judge in Puerto Rico had accepted a stipulation submitted by the child’s father and grandfather and, accordingly, had referred the matter of Lanny’s custody to a family social worker for recommendations concerning “what home or under whose custody would ensure the well being of [Lanny].” The resolution also restricted the removal of Lanny from the jurisdiction of the Puerto Rico court. A copy of the resolution was filed in the Connecticut Superior Court on April 19, 1988. There were also filed in the trial court letters dated April 18 and 19, 1988, from Orlando Perez, Sr., and from the grandparents’ attorney in Puerto Rico. These letters represented that “Puerto Rico has again assumed jurisdiction regarding this case. . . .” Neither the letters nor the resolution of April 15, 1988, indicated the date on which Orlando Perez, Sr., and Orlando Perez, Jr., initiated the new action.
On appeal, the defendant grandparents claim that the trial court erred in: (1) finding that it had subject matter jurisdiction to rule on the plaintiff’s motion for modification; (2) failing to require the filing of an affidavit regarding other custody proceedings and failing to communicate with the court in Puerto Rico; (3) proceeding on the plaintiff’s motion for modification prior
I
The defendants first claim that, under the Uniform Child Custody Jurisdiction Act (UCCJA), General Statutes § 46b-90 et seq.,
The UCCJA provides in relevant part: “(a) If a court of another state has made a custody decree, a court of this state shall not modify that decree unless (1) it
The trial court found that the plaintiff had commenced the modification action on March 25, 1985, when she first filed her petition. It found that Lanny had lived in Connecticut since his birth in June, 1983, until early February, 1984, when the plaintiff filed the dissolution action. At that time, Orlando, Jr., removed Lanny from Connecticut and kept him in Florida and Puerto Rico until November, 1984, when the defendants and Lanny returned to Connecticut. Although the period between November, 1984, and March, 1985, was less than six months, the court found that, under the definition of “home state,” Lanny’s removal to Florida and Puerto Rico constituted a period of temporary absence. General Statutes § 46b-92 (5). Consequently, the court ruled that it had jurisdiction under § 46b-93 (a) (1) (A), since Connecticut had been Lanny’s “home state” from his birth until the time the plaintiff commenced the action.
The Connecticut trial court found that, as of the date of the hearing, the grandparents had lived in Connecticut “at least since 1983.” The grandparents had maintained homes in both Portland and Middletown, the grandfather owned his own business here and the plain
“ ‘The fact that the [Puerto Rico] court had previously considered the case may be one factor favoring its continued jurisdiction. If, however, all the persons involved have moved away or the contact with the state has otherwise become slight, modification jurisdiction would shift elsewhere.’ ” Kioukis v. Kioukis, 185 Conn. 249, 255, 440 A.2d 894 (1981), quoting UCCJA § 14, 9 U.L.A. 154-55 (1979). In the present case, the evidence overwhelmingly supported the trial court’s conclusion that, under §§ 46b-93 (a) and 46b-104 (a), the parties’ contacts with Puerto Rico did not demonstrate that that forum continued to have jurisdiction at the time of the Connecticut modification hearing. We conclude, therefore, that the trial court did not err in determining that it had subject matter jurisdiction to modify the prior custody order of the Superior Court of Puerto Rico.
II
The defendant grandparents next claim that, under General Statutes §§ 46b-99 and 52-231a,
Section 52-231a provides that before the trial court enters any decree concerning child custody, an affidavit must be filed in the court averring either that there is no other custody proceeding concerning the same child pending elsewhere or, if there is, that a decree of the trial court would not “conflict with ... or interfere with such other proceeding.” The pertinent part of § 46b-99 requires the parties to a child custody action to disclose to the court any information they may have obtained, at the outset or during the proceeding, concerning any other custody proceeding involving the child.
In the present case, the plaintiff attached an affidavit to her March 25,1985 petition for modification. That affidavit did not expressly aver that there were no other proceedings concerning Lanny’s custody at that time. It did, however, provide the court with a detailed account of the 1984 Puerto Rico custody hearing. Although we do not condone the deviation from the express requirements of § 52-231a, it is quite clear that the plaintiff's affidavit satisfied the purposes of that statute by fully apprising the trial court of any other custody proceedings involving Lanny. There were, in fact, no other pending custody proceedings in Puerto Rico or elsewhere on March 25,1985, or on February 8, 1988, when the plaintiff reclaimed a hearing on her petition. Further, there is nothing in the record to suggest that the plaintiff did not adhere to the disclosure requirements of § 46b-99.
Even if we assume that the affidavit did not satisfy § 52-231a, the trial court’s rendering of judgment without
Similarly, we are not persuaded that the trial court erred in failing to communicate with the Puerto Rico court once it learned of that court’s April 15,1988 resolution. See General Statutes § 46b-96 (c). The defendants argue that the Puerto Rico court’s resolution of April 15, 1988, placed them in the untenable position of having to violate that resolution in order to comply with the Connecticut court’s order to return Lanny. They claim, therefore, that the trial court’s failure to communicate with the Puerto Rico court “to the end that the issue may be litigated in the more appropriate forum” placed them on the proverbial “horns of a dilemma.” Having instituted the Puerto Rico action by means of an intraparty stipulation, however, the defendants honed the points of those horns themselves.
Ill
We disagree with the defendants’ next claim that the trial court should not have disposed of the case without the filing of a previously ordered case study report. General Statutes § 46b-6
IV
The defendants next claim that the trial court erred in ruling that they had the burden of proving that it would be detrimental for the child to be in the plaintiff’s custody. They also claim that the court erred in drawing an adverse inference from the defendants’ failure to attend the hearing and testify. We are not persuaded.
General Statutes § 46b-56 (b) provides that “[i]n making or modifying any order with respect to custody or visitation, the court shall be guided by the best interests of the child . . . .” General Statutes § 46b-56b, enacted in 1985 and amended in 1986, provides that “[i]n any dispute as to the custody of a minor child involving a parent and a nonparent, there shall be a presumption that it is in the best interest of the child to be in the custody of the parent, which presumption may be rebutted by showing that it would be detrimental to the child to permit the parent to have custody.” Public Acts 1985, No. 85-244, § 2; Public Acts 1986, No. 86-224.
The defendants argue that the trial court impermissibly applied § 46b-56b retroactively since the statute was enacted after the date of the original custody order in November, 1984. We disagree. Statutory amendments affecting evidentiary rules, such as rules concerning the burden of proof, generally apply to all proceedings after the amendment, regardless of when the incidents underlying the action occurred. Allen v. Fisher, 118 Ariz. 95, 574 P.2d 1314 (1977); United Securities Corporation v. Bruton, 213 A.2d 892, 893-94 (D.C. App. 1965); City Council v. Vinciullo, 364 Mass. 624, 628, 307 N.E.2d 316 (1974); but see Matter of Reardon, 25 App. Div. 370, 372, 269 N.Y.S.2d 635 (1966).
The defendants also argue that § 46b-56b should apply only to initial custody determinations and not to modification actions. In their view, the presumption would make no sense in a modification áction commenced by a parent if, in the prior proceeding, the child’s best interests must have been found to lie with
We are not persuaded by the defendants’ assertion that because the evidence did not warrant the conclusion that custody in the plaintiff would serve the child’s best interests, the trial court’s reliance on the § 46b-56b presumption led to an erroneous result. The trial court heard testimony from the plaintiff as well as her expert witness, social worker Yvonne B. Cataldi, that at present Lanny was strongly attached to his grandparents, felt hostility toward his mother, and that a transfer in custody might be somewhat traumatic. Cataldi also testified, however, that a close mother-son relationship was essential to Lanny’s psychological development, that his contacts with his mother demonstrated that their relationship, if allowed to be nurtured, would improve and stabilize, that the plaintiff was in all respects a good mother, and that the defendants had consistently acted to thwart the development of a mother-son relationship between Lanny and the plaintiff.
“We cannot retry the case.” Cookson v. Cookson, 201 Conn. 229, 242, 514 A.2d 323 (1986). In the present case, “we cannot say, from our review of the record, that the conclusions of the trial court were legally or logically incorrect or unsupported by the facts or that the evidence was insufficient for the trial court to rule as it did.” Id., 243-44. Moreover, we agree with the defendants that nothing in § 46b-56b affects the trial court’s obligation to award custody upon the basis of the child’s best interests. See Hall v. Hall, 186 Conn. 118, 121, 439 A.2d 447 (1982). In this case, however, “[t]here is no doubt that the trial court understood and employed the ‘best interests’ standard as the ultimate basis of its decision.” McGaffin v. Roberts, supra, 408. Even if we assume that the evidence was such that the only reasonable conclusion would have been that Lanny’s best interests would be served equally well by custody in either party, the trial court would have been legally correct in awarding custody to the plaintiff because of the presumption of § 46b-56b. We conclude, therefore, that the trial court did not err in its application of § 46b-56b.
The defendants also claim that the trial court should not have drawn an adverse inference from their failure to attend and testify at the April, 1988 hearing.
On March 28, 1988, the trial court instructed the defendants’ counsel to contact his clients in Puerto Rico and inform them that “the court would consider their absence as a significant negative factor in evaluating their position with respect to this modification. . . . I want you to underscore . . . that their presence the court would consider ... a real necessity in evaluating whatever arguments they might have. Their absence from court is going to severely affect the strength of their arguments.” The hearing commenced on April 4,1988, as scheduled. The defendants did not attend. Their counsel informed the court that “I have talked to them .... I communicated very clearly the Court’s opinion that their presence, if not in court today, would be considered heavily in deciding this case . . . . ” Although counsel also informed the court that Orlando Perez, Sr., told him that he was trying to get a flight out of Puerto Rico, the record shows that the defendants did not attend on April 4 or on any of the subsequent hearing dates. The defendants have not argued on appeal that they were unable to attend because of difficulty in making travel arrangements. In its memorandum of decision, the trial court stated that “the court does infer that [the defendants’] testimony, if it had been given, would have been unfavorable to their cause.”
V
The defendants’ last claim is that, in view of the conflicting evidence before it, the trial court abused its discretion in ordering a change in custody without first seeking additional information concerning Lanny’s best interests. We have already concluded that the trial court properly declined to communicate with the Puerto Rico court before reaching its decision. Further, we have already reviewed the defendants’ assertion that the evidence did not warrant a conclusion that a change in custody would be in the child’s best interests. We
There is no error.
In this opinion the other justices concurred.
Orlando Perez, Jr., although nominally a defendant, did not take part in the hearing on the plaintiffs petition.
The plaintiff appealed the judgment of the Superior Court of Puerto Rico. In a judgment dated January 17,1985, the Supreme Court of Puerto Rico denied review without comment.
In Perez v. Perez, 8 Conn. App. 107, 110, 510 A.2d 1020 (1986), the Appellate Court held that the trial court erred in failing to request the transcripts, records and other documents pertaining to the original custody order from the Superior Court in Puerto Rico as required by General Statutes § 46b-112.
All parties in this case entered appearances. The trial court found that the paternal grandparents had filed an appearance on August 25, 1986, after remand of the case for further proceedings. The father of the child filed a pro se appearance on May 9,1987. The trial court appointed an attorney to represent the child. Although the maternal grandmother joined the case as an intervening party, she did not take part in the hearing.
At the hearing, the plaintiff and Yvonne B. Cataldi, a social worker, testifed for the plaintiff. The plaintiff testified that she was presently working at two jobs, that she takes no medication and has no drug or alcohol problem, and that her home life is stable. Eugene R, Boylin, a clinical psychologist, testified for the defendants that the child’s custody should not be changed. The grandparents, although represented by counsel, did not testify, nor did they attend the trial.
In the text of our discussion of the jurisdictional question, we have relied on language from the relevant provisions of the Uniform Child Custody Jurisdiction Act (UCCJA), General Statutes § 46b-90 et seq., rather than the federal Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A. The trial court determined that the UCCJA controlled the jurisdiction of this case. Puerto Rico does not appear to be a signatory of the UCCJA. Cf. Brown v. Brown, 195 Conn. 98, 99, 486 A.2d 1116 (1985), The parties, however, have not drawn our attention to any differences in language between the two statutes that would warrant an analysis different from that discussed above. Further, although the defendants challenge the trial court’s determination that it had jurisdiction, they do not challenge the trial court’s application of the UCCJA in making that determination. In any event, the PKPA, which is modeled on the UCCJA, “ ‘does not significantly disrupt the jurisdictional provisions of [the] UCCJA.’ ” Brown v. Brown, supra, 120. For convenience of reference, however, we cite the corresponding PKPA provisions in our discussion.
The trial court found in the alternative that, whether the action was deemed to have commenced on March 25, 1985, or on February 8, 1988,
General Statutes § 46b-99 provides: “(a) Every party in a custody proceeding in his first pleading or in an affidavit attached to that pleading shall
“(b) If the declaration as to any of the above items is in the affirmative the declarant shall give additional information under oath as required by the court. The court may examine the parties under oath as to details of the information furnished and as to other matters pertinent to the court’s jurisdiction and the disposition of the case.
“(c) Bach party has a continuing duty to inform the court of any custody proceeding concerning the child in this or any other state of which he obtained information during this proceeding.”
General Statutes § 52-231a provides: “Before any court enters any decree in a matter pending before it involving the custody of a minor child or children, an affidavit shall be filed with said court averring that there is no proceeding pending in any other court affecting the custody of such children or any of them or, if there is such a proceeding, a statement in detail of the nature of the proceeding and averring that the decree of the court would not conflict with or interfere with such other proceeding. For the purposes of this affidavit, visitation rights granted by the superior court shall not be considered as affecting the custody of such child or children.”
See also Practice Book § 476.
General Statutes § 46b-96 (c) provides: “If the court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another state before the court assumed jurisdiction, it shall stay the proceeding and communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum and that information be exchanged in accordance with sections 46b-109 to 46b-112, inclusive. If a court of this state has made a custody decree before being informed of a pending proceeding in a court of another state, it shall immediately inform such court of the fact. If the court is informed that a proceeding was commenced in another state after it assumed jurisdiction, it shall likewise inform the other court to the end that the issues may be litigated in the more appropriate forum.”
As noted above, the copy of the Puerto Rico court’s April 15,1988 resolution, as well as the letters sent by Orlando Perez, Sr., and his lawyer in Puerto Rico, do not disclose the date on which Orlando Perez, Jr., and Orlando Perez, Sr., initiated the custody action in Puerto Rico. The defendants have not, however, challenged the trial court’s finding in its memorandum of decision that “[w]hile [the] hearing [on the plaintiff’s petition] was in progress, the child’s father appeared in the Puerto Rico superior court and obtained an order which asserts that court’s jurisdiction.”
“[General Statutes] Sec. 46b-6. (Formerly Sec. 51-337). investigations. In any pending family relations matter the court or any judge may cause an investigation to be made with respect to any circumstance of the matter which may be helpful or material or relevant to a proper disposition of the case. Such investigation may include an examination of the parentage and surroundings of any child, his age, habits and history, inquiry into the home conditions, habits and character of his parents or guardians and evaluation of his mental or physical condition. In any action for dissolution of marriage, legal separation or annulment of marriage such investigation may include an examination into the age, habits and history of the parties, the causes of marital discord and the financial ability of the parties to furnish support to either spouse or any dependent child.”
“[General Statutes] Sec. 46b-7. (Formerly Sec. 51-338). report of investigation to be filed. Whenever, in any family relations matter, including appeals from the superior court, an investigation has been ordered, the case shall not be disposed of until the report has been filed as hereinafter provided, and counsel and the parties have had a reasonable opportunity to examine it prior to the time the case is to be heard. Any report of an investigation shall be made in quadruplicate and shall be filed with the clerk and mailed to counsel of record.”
In McGaffin v. Roberts, 193 Conn. 393, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985), we held that General Statutes § 45-43, which provides that if a father or mother dies or is removed as guardian, the other parent shall become sole guardian, did not create in a surviving father a presumption entitling him to custody of the child in preference to the child’s maternal grandmother. McGaffin was decided before the enactment of General Statutes § 46b-56b.