CELINE M. STAHL v. EUGENE R. BAYLISS, JR.
(AC 26311)
Schaller, Lavine and Pellegrino, Js.
October 10, 2006
98 Conn. App. 63
language are not relevant to the facts. With due respect to the evidence of the child‘s laudable progress, it cannot be disputed that the child achieved that progress while in the present, uncertain situation; nothing in the record suggests that his progress would be jeopardized if termination is not granted. This child does not neеd the termination of the respondent‘s parental rights to move on. He has already done so and, at present, is in the best possible position despite his difficult and challenging childhood. In terminating the respondent‘s parental rights and the child‘s legal connection with the respondent‘s family, with only four years of minority left and no serious prospects of any other permanent family, the child loses, rather than gains, from what I am compelled to see as a thoroughly ill-advised course of action on the part of the petitioner.
For the foregoing reasons, I respectfully dissent.
Argued June 1—officially released October 10, 2006
William F. Gallagher, with whom, on the brief, was Hugh D. Hughes, for the appellee (plaintiff).
Thomas D. Colin, for the minor children.
Opinion
SCHALLER, J. The defendant, Eugene R. Bayliss, Jr., appeals from the triаl court‘s judgment of dissolution. On appeal, the defendant claims that the court improperly (1) incorporated a 2003 stipulated parenting plan into its 2005 final dissolution decree without first determining whether it was in the present best interests of the minor children, (2) violated his due process rights by issuing orders without providing him an opportunity to conduct a meaningful hearing, (3) refused to hear his motions related to custody and (4) failed to grant him alimony. Because we agree with the defendant with respect to his first claim, we do not reach the remaining issues.
The following facts and procedural history are relevant to our resolution of the defendant‘s appeal. The рarties were married on October 29, 1983, and have three children.1 After nearly nineteen years of marriage, the plaintiff, Celine M. Stahl, filed for dissolution of the marriage on January 9, 2002.
Following the initiation of the dissolution action, the parties, as part of the early intervention custody program, signed a fourteen paragraрh handwritten document entitled “Stipulation Regarding Custody and Visitation.” The terms of the stipulation provided, inter alia, that the parties would share joint legal custody of their two minor children, that the plaintiff would have primary physical custody of the minor children and that the minor children would remain in their present schools. The terms of the stiрulation also specified that the parties believed the stipulation was in the best interests of the children and included a statement of the parties’ intention to bifurcate the financial issues of the dissolution from the custodial issues. Finally, paragraph fourteen of the stipulation provided that any additional issues regarding сustody and visitation would be mediated by attorney Sandra Lax.
On September 9, 2003, in open court, the court stated that it approved the stipulation and found it to be “fair and equitable under all the circumstances . . . .” After approving the stipulation, the court explained that “[a]t the time a final decree enters in this matter . . . this court or any other Superior Court will incorporate by reference this particular stipulation as the custody and visitation orders of the court.”
On April 6, 2004, prior to the trial on the financial issues, the defendant filed a motion
On the first day of trial, September 14, 2004, Thomas D. Colin, the attorney for the minor children, inquired of thе court whether the trial would proceed solely on the financial issues or whether the custody and visitation issues also would be heard. Colin requested that he be excused from the trial but be permitted to appear and be heard at final argument if the trial was to proceed solely on the financial issues. The court stated that it did not know whether the defendant‘s counsel would be addressing the motion to modify and explained that if there was no objection from counsel for the parties, Colin could return if custody issues arose. The defendant‘s counsel indicated that he was unsure whether the custody issues would be addressed but objected to Colin‘s being рermitted to participate in closing argument without being present at trial. Thereafter, trial began without any apparent resolution of the issue.
Following the trial‘s first recess, Colin again addressed the court and stated that the parties had “figure[d] out a way to deal with that motion to modify . . . which will allow me to be excused.” He еxplained that “[p]ursuant to its own terms, paragraph [fourteen of the stipulation] requires [that] any additional issues regarding custody and visitation shall be mediated with attorney Sandra Lax. So, the parties have agreed that I will contact attorney Lax immediately to start the mediation process. Hopefully, that will result in a resolution of the outstanding issues.” The court then proceeded to excuse Colin until final argument and stated that it “need not address the [custody] issue at this point since the parenting plan contains a submission for mediation, and that will take place immediately.” The defendant‘s counsel again renewed his objection to Colin‘s being рermitted to participate during closing argument without being present at trial. Thereafter, the trial continued with respect to the financial issues. No further reference was made during the trial, by counsel or the court, as to the outcome of any mediation of the custody and visitation issues. Neither the parties nor the cоurt made further reference, moreover, to any resolution of the defendant‘s motion to modify custody and visitation.3
The defendant claims on appeal that the court improperly incorporated the parties’ 2003 stipulation into its final decree without first determining whether it was in the prеsent best interests of the minor children. We agree.
“In a dissolution action the custody of minor children is not finally determined until entry of the decree dissolving the marriage.” Hall v. Hall, 186 Conn. 118, 122, 439 A.2d 447 (1982). “It is statutorily incumbent upon a court entering orders concerning custody or visitation or a modification of such order to be guided by the best interests of the child.” Wilson v. Wilson, 38 Conn. App. 263, 269, 661 A.2d 621 (1995). “In reaсhing a decision as to what is in the best interests of a child, the court is vested with broad discretion and its ruling will be reversed only upon a showing that some legal principle or right has been violated or that the discretion has been abused.” El Idrissi v. El Idrissi, 173 Conn. 295, 301-302, 377 A.2d 330 (1977).
In Guss v. Guss, 1 Conn. App. 356, 360-61, 472 A.2d 790 (1984), this court addressed a situation analogous to the present case. There, the marriage оf the parties was dissolved, and custody of their two minor children was awarded to the defendant mother. Id., 357. Subsequently, the parties entered into a stipulation modifying the judgment of dissolution. Id., 358. The stipulation included a provision that if the defendant removed the children from Connecticut, it would be in the best interests of the children to award custody automatically to the plaintiff father. Id. The stipulation was signed by both parties and approved by the court. Id. Some fifteen months later, the defendant removed the children from Connecticut. Id. Subsequently, the court, in response to the plaintiff‘s motion for change of custody, concluded that the parties’ stipulation controlled the issue and thereafter signed an order changing custody without a hearing to determine the children‘s present best interests. Id., 358-59.
On appeal, we reversed the judgment in part and concluded that “[t]here was no determination, other than at the time the judgment was modified in accordance with the stipulation, that the enforcement of the agreement would serve the best interests of the children. A child‘s best interests, however, cannot be prospectively determined. [Rather] the court was bound to consider the child[ren‘s] present best interests
In the present case, the court did not make a best interests determination at the time of its final decree in February, 2005. Rather, it summarily incorporated the parties’ September, 2003 stipulation despite the uncertain status of renewed mediation and the uncertain status of the motion to modify. Although the stipulation may have been in the children‘s bеst interests in 2003, the court was not free to assume that those interests remained unchanged more than one year later in February, 2005. Moreover, although the defendant did agree in 2003 to abide by the stipulation, which provided for mediation of the custody and visitation issues, this fact does not relieve the court of its fundamental obligation to make a present best interests determination at the time of dissolution, prior to entering its final decree. “It is true that our courts usually defer to terms negotiated by the parties. The continuing jurisdiction of the Superior Court over the custody of minor children of a dissolved marriage may, however, not be ousted by the terms of an agreement entered into between the parents at the time the marriage is dissolved. . . . Under [
In this opinion LAVINE, J., concurred.
PELLEGRINO, J., dissenting in part. Although I agree with the majority that the judgment of the trial court must be reversed because the court improperly failed to determine the best interests of the parties’ children at the time of dissolution, I do not agree that the court must revisit its financial orders on remand. See footnote 5 of the majority opinion. The defendant, Eugene R. Bayliss, Jr., filed two motions to modify the parties’ stipulation regarding custody and visitation, and in neither motion did he seek primary custody of the children. The defendant requested only that the court order the family relations division of the Superior Court to undertake a custody evaluation that would address the problems that he had experienced with the stipulation. Specifically, the defendant alleged in his motions that the plaintiff, Celine M. Stahl, had disparaged him to the children and had not supported his relationship with them. Even if the defendant‘s motions ultimately are resolved in his favor, there will be no effect on the financial orders. “Every improper order . . . does not necessarily merit a reconsideration of all of the trial court‘s financial orders. A financial order is severable when it is not in any way interdependent with other orders and is not improperly based on a factor thаt is linked to other factors.” Smith v. Smith, 249 Conn. 265, 277, 752 A.2d 1023 (1999). I therefore would proceed to review the defendant‘s final claim on appeal, which is that the court improperly failed to award him alimony. I would reject that claim because the defendant‘s argument in support thereof amounts to little more than his belief that he deserves alimony. In sum, I would reverse the court‘s judgment as to the custody orders and would affirm the judgment as to the financial orders.