Presutti v. PresuttiPresutti v. Presutti
- Reporters:
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- Before:
- Healey
This is an appeal from a dissolution decree, rendered by a state referee, in which the defendant mother was given custody of the only child of the marriage, Lena Anne, 1 and the plaintiff father was given the right of reasonable visitation. The practical effect of the custody order was to permit the child to reside in Italy with the defendant. Although other orders were rendered, 2 the appeal by the plaintiff concerns only the trial court’s decision on custody and visitation and its order requiring the plaintiff to pay the defendant’s counsel fees and cost of preparing the transcript.
The memorandum of decision, read in the light of other undisputed evidence, discloses the following facts: The plaintiff and the defendant were married in Italy on October 3, 1970. Prior to the marriage, the plaintiff, who had been previously married and divorced, had lived in the United States
On appeal, the plaintiff’s claims of error are directed to essentially two matters: the court’s award of custody of Lena Anne and attorney’s fees to the defendant.
I
At the outset, the plaintiff claims that a procedural irregularity in the trial court’s consideration of the issue of custody was prejudicial to his rights and disserved the best interests of the child, Lena Anne. At the first hearing held in this case the trial court expressed its erroneous opinion that, since the child was outside of this state at the time of the hearing, it had no jurisdiction to determine the issue of custody. At a later hearing the court corrected its earlier ruling and, on the basis of
Scott
v.
Furrow,
141 Conn. 113, 118, 104 A.2d 224 (1954), and
Krasnow
v.
Krasnow,
140 Conn. 254, 259, 99 A.2d 104 (1953), determined the issue of custody. Although the plaintiff claims that this later reversal was prejudicial to himself, he con-cededly failed to bring to the court’s attention its misapprehension of the law at the earlier hearing
The plaintiff makes several arguments to support his claim that the court erred in awarding custody of Lena Anne to the defendant. Because the defendant is not a resident of the United States and, apparently, does not intend to become one, the question raised is one of first impression in this jurisdiction. At the outset of our consideration of the arguments made by the plaintiff, we point out that, as the plaintiff concedes, in a dissolution proceeding the trial court’s decision on the matter of custody is committed to the exercise of its sound discretion and its decision cannot be overridden unless an abuse of that discretion is clear. See
Ridgeway
v.
Ridgeway,
180 Conn. 533, 541, 429 A.2d 801 (1980);
Simons
v.
Simons,
172 Conn. 341, 348, 374 A.2d 1040 (1977). The controlling principle in a determination respecting custody is that the court shall be guided by the best interests of the child.
We address first the plaintiff’s assertion that it is to be presumed that the child’s best interests will be promoted by her remaining in this country and that the burden of proving otherwise rests upon the nonresident parent seeking custody. The plaintiff claims that the court failed to place this burden upon the defendant and that, in any event, the defendant failed to sustain her burden of proof on this issue. Although the plaintiff cites some authority for the proposition that he urges us to adopt; see annot., 15 A.L.R.2d 432, 463 § 9 and cases there cited; we are not persuaded that this is a proper approach to custody matters. See
Morrill
v.
Morrill,
83 Conn. 479, 489, 77 A. 1 (1910). In
Simons
v.
Simons,
supra, 350, we declined to adopt the defendant’s assertion that there was a presumption favoring the mother as a custodial parent as
In support of his argument that the court abused its discretion in awarding custody of Lena Anne to the defendant, the plaintiff points to three major consequences of the court’s decision: (1) the court loses effective control over the child; (2) the child is effectively expatriated and loses the right to be raised as an American; and (3) the plaintiff’s right to reasonable visitation is rendered illusory. We consider each of these claims to determine whether, if valid, they individually or collectively rise to the level of requiring this court to find an abuse of discretion.
While it is true that, as a practical matter, the court’s exercise of its continuing jurisdiction over the education, care, custody and visitation of a child under
In an analogous case, in which the mother was awarded custody of two children by a Connecticut court and later moved to Holland with the children and her second husband, we said: “It is . . . the law of this state that ‘[a] divorce decree which awards the custody of a child to one parent with permission to the other to visit the child at reason
The major thrust of the plaintiff’s claim is that, as a probable consequence of the custody award, the child will lose her American citizenship and be deprived of an upbringing as an American. This issue is the most troublesome aspect of this already difficult case. The child, Lena Anne, having been born in the United States, is an American citizen.
American citizenship is a treasure of inestimable worth. The United States Supreme Court has said of American citizenship: “It would be difficult to exaggerate its value and importance.”
Schneiderman
v.
United States,
320 U.S. 118, 122, 63 S. Ct. 1333, 87 L. Ed. 1796 (1942). Without demeaning the liberty and opportunity that exist in some other countries, we cannot but recognize that the quality of life in this country is uncommonly elevated and that the degree of personal liberty enjoyed here is almost unparalleled in other nations. American citizenship and the accompanying experience of being raised in this country should be a prominent factor in a court’s decision to award custody of an American child to a parent who has decided to become a resident of a foreign land. The opportunity to be raised in this country is a factor entitled to substantial weight in the court’s assessment of the best interests of the child. The “overwhelming weight of authority,” however, is to the effect that a nonresident, or one who intends to become a nonresident, will not be deprived of the right to the custody of a child for that reason alone. See annot., 15 A.L.R.2d 432, 439 § 5; see, e.g.,
Miracle
v.
Miracle,
360 P.2d 712 (Okla. 1961) (custodial mother moving to Italy) ;
9
Byers
v.
Byers,
370 S.W.2d 193 (Ky. 1963) (custodial mother moving to South Africa);
In re Erich,
310 A.2d 910 (Del. Ch. 1973) (custodial relative resident of Austria). Instead, “[i]t is universally recognized by all courts that in fixing of the custody of a child
The delicacy and complexity of the custody decision of the court called for unusual perception and wisdom. Its determination figuratively wedged the trial court between Scylla and Charybdis. The child is of tender years. Both parents love the child and each was willing to make sacrifices for her well-being. It is abundantly clear from the memorandum of decision, however, that the court ascribed fault both for the dissolution of the marriage, and for the defendant’s decision to leave this country with the child, to the plaintiff. The plaintiff imposed isolation on the defendant while she was in this country. He discouraged her from establishing any friendships and prevented her from taking formal lessons in the English language. The court, no doubt, considered these factors, which led to the breakdown of the parties’ marriage, in its decision regarding custody. See
Moreover, the plans for the care of the child proposed by the parties were not of equal quality. The plaintiff stated that, if awarded custody, he would arrange to have his father, who lived near the plaintiff’s West Hartford home, come to his home after the plaintiff left for work and take the child to the home of a woman who has grown chil
The plaintiff also makes much of the limited extent of the defendant’s formal education and the relatively insubstantial financial resources available to her. It suffices to say that a parent’s role in providing the vital love, care and guidance that a child needs is almost entirely unrelated to such factors. A parent’s humble origins, economic difficulties and even illiteracy are not in themselves any test of fitness for the role of custodial parent. See People ex rel. Choolokian v. Mission of the Immaculate Virgin, 192 Misc. 454, 460, 76 N.Y.S.2d 509 (1947), aff’d, 274 App. Div. 1049, 86 N.Y.S.2d 462, aff’d, 300 N.Y. 43, 88 N.E.2d 362 (1949), cert. denied, 339 U.S. 912, 70 S. Ct. 570, 94 L. Ed. 1338 (1950).
With reference to the plaintiff’s emphasis on the child’s probable loss of the opportunity to be raised
On the basis of all of these facts, we conclude that the trial court did not abuse its discretion by awarding custody of the child to the defendant. Although we are mindful of the benefit of American citizenship and life, with respect to the upbringing of a child and the parental functions of meeting on an ongoing basis the emotional, physical, psychological and spiritual needs of that child, the question of which parent can better fulfill that role as the custodial parent is more significant in determining the best interests of the child than the particular country in which that role will be fulfilled.
The plaintiff also claims that the award of custody to the defendant, permitting the child to reside in Italy, renders any visitation rights afforded to him illusory. Relying upon
Danielson
v.
Danielson,
174 Conn. 427, 389 A.2d 750 (1978), he reasons that the cost of intercontinental travel is so prohibitive as to make it impracticable for him to exercise his right of reasonable visitation. There is no question but that frequent visits between the plaintiff and Lena Anne would not be feasible while the child is residing in Italy. But that fact alone is not enough to render the plaintiff’s opportunity of visitation illusory. A parent’s privilege of visitation of children whose custody is awarded to the other parent is not absolute, but is subordi
We conclude that the court did, however, fail to provide in its order respecting visitation the type of specificity that is essential when the frequency of visitation is, as a practical matter, drastically reduced. The court’s order simply granted to the plaintiff “the rights of reasonable visitation” of the minor child. This order leaves the plaintiff, as well as the defendant and the child, uncertain concerning the anticipated time, length and conditions of the plaintiff’s visitation with the child and whether it is to be in Connecticut or Italy. Where the noncustodial parent’s visitation with his child will be infrequent as a result of the distance that separates them, the court should, when at all possible, set specific and usually substantial periods of visita
II
Finally, the plaintiff asserts that the trial court abused its discretion in awarding attorney’s fees to the defendant in the amount of $2150 as well as the cost of preparing the transcript of the trial for the appeal.
13
The plaintiff does not challenge the validity of the fee. Indeed, he has shown his own liability for counsel fees to be in a similar amount. The parties both submitted financial affidavits, which are a part of the record on appeal. On the basis of the trial court’s findings with respect to the cause of the dissolution, and the respective estates and income of the parties, we cannot say that the trial court abused its broad discretion in maldng the award of attorney’s fees and transcript cost. See Fricke v. Fricke, 174 Conn. 602, 603-604, 392 A.2d 473 (1978). The court could reasonably have concluded as it did. See Fucci v. Fucci, 179 Conn. 174, 183, 425 A.2d 592 (1979).
There is error in part, the judgment is affirmed except as regards the plaintiff’s rights of reasonable visitation and the case is remanded for a more specific determination of that issue not inconsistent with this opinion.
In this opinion the other judges concurred.
Notes
The child, Lena Anne, was born on August 11, 1974, in Connecticut.
The trial court ordered the defendant to convey her one-half interest in the family home in West Hartford to the plaintiff and, simultaneously therewith, the plaintiff was ordered to pay the defendant $13,450 to be secured by a second mortgage on those promises, payable in eighty-four equal monthly installments at the rate of 6 percent per annum.
The plaintiff claimed that when the defendant left she took the sum of $4000 from a bank account owned jointly with the plaintiff.
The ease was tried over several days with hearings being held on August 17, 1978, August 21, 1978, September 20, 1978, and December 29, 1978. The trial court filed its memorandum of decision on January 18, 1979, and modified it on January 22, 1979, so as to provide the plaintiff with the right of reasonable visitation. The plaintiff appealed from the original judgment and the modification on February 7, 1979. Thereafter, on March 26, 1979, a hearing was held on the defendant’s motion for attorney’s fees, at which both parties filed financial affidavits, and on April 5, 1979, the plaintiff amended his appeal and preliminary statement of issues to include the court’s subsequent order requiring him to pay the defendant’s attorney’s fees and disbursements.
At the close of the final hearing, the plaintiff’s own attorney stated: “[A]s far as Pm concerned this has been a very fair and just trial.”
There is no merit to the plaintiff’s claim that the best interests of the child were disserved in any way by the events that took place.
See, e.g., Workman v. Workman, 191 Ky. 124, 229 S.W. 379 (1921).
Under
See also the later ease, Miracle v. Miracle, 388 P.2d 9 (Okla. 1963) (custodial mother moving from Italy to Ethiopia).
There are courts that have taken the position that where the best interests of the child require that custody be granted to a nonresident parent, that determination will control even where doing so may curtail or effectively destroy the visitation rights of the noncustodial parent. See annot., 15 A.L.R.2d 432, 445.
In determining the best interests of the child in a case of this sort, the appointment of an attorney for the minor child; see
It may be that in cases in which the custodial parent resides outside of this country the trial court will want to ensure the custodial parent’s compliance with visitation orders by requiring the custodial parent to file a bond with the court guaranteeing such compliance. See Clark, Domestic Relations, § 17.4, p. 587; annot., 15 A.L.R.2d 432, 470 § 12. Wo express no opinion as to the desirability of such a procedure in this case.
The cost of the transcript was estimated to be $350.