Robert R. Bernier v. Jean M. Bernier (2010)

MEMORANDUM OF DECISION RE:  PLAINTIFF'S REVISED MOTION FOR MODIFICATION OF CUSTODY, VISITATION AND CHILD SUPPORT

At issue is the plaintiff's revised motion for modification of custody, visitation and child support, dated January 21, 2010.   In his motion, the plaintiff states that “the parties submitted to the Court a marriage settlement agreement dated April 10, 2006 which was incorporated by reference into the judgment ․ [S]ince that time, there is a substantial change in circumstances and it would be in the best interest of the minor children for the father to have primary custody of the children with an open and liberal access schedule for the mother, particularly with respect to the education of the children ․ [T]he substantial changes include but are not limited to the following:  a. That since the date of dissolution, the father has relocated his primary residence to a location which is much larger than at the time of dissolution and can accommodate the children as their primary residence ․” The plaintiff cites to four other changes in circumstance, none of which are relevant to the issue of his relocation of primary residence.

The defendant filed an objection to the plaintiff's motion, dated January 15, 2010.   In her objection, the defendant argues that the plaintiff's motion “is wholly devoid of any factual allegations whatsoever to support the Plaintiff's bare legal assertions ․” The defendant argues that the plaintiff's claims for a change in circumstances have focused generally on unsubstantiated co-parenting difficulties.

The defendant has also filed a motion for order regarding substantial change in circumstances, postjudgment, dated February 16, 2010, adding that the plaintiff's motion contains “no allegation that the Plaintiff's home at the time of dissolution, and the entry of the current custodial order, could not accommodate the children as their primary residence.   That the Plaintiff has moved to a bigger house may be a boon for the Plaintiff, but the circumstances surrounding the Plaintiff's ability to maintain a primary residence for the children has not changed ․” (Emphasis in original.)   The plaintiff filed a “motion to strike pleading (Postjudgment)” on March 4, 2010, arguing that the motion for order is improper because it is in substance an argumentative memorandum containing allegations of fact.   The defendant objected to the motion to strike arguing that a motion to strike is procedurally improper for a motion for order.   The plaintiff replied that its filing was intended to be a “motion for order to strike” the defendant's pleading, which he argues is a proper motion.

“In any controversy before the Superior Court as to the custody or care of minor children ․ the court may make or modify any proper order regarding the custody, care, education, visitation and support of the children ․ The best interests of the child standard is the ultimate basis of a court's custody decision ․ We have consistently held in matters involving child custody that while the rights, wishes and desires of the parents must be considered, it is nevertheless the ultimate welfare of the child which must control the decision of the court.”  (Citations omitted;  internal quotation marks omitted.)   Saltus v. Van Blaricom, Superior Court, judicial district of Middlesex, Docket No. FA 094011384 (April 7, 2010, Elpedio Vitale, J.).

“In modifying custody the court must either find a material change of circumstances or that the order sought to be modified was not based on an evidentiary determination as to the best interest of the child ․ The burden is on the party seeking modification to show the existence of a substantial change in circumstances ․ A finding of a material change in circumstances must be based on circumstances that have arisen since the previous order of custody ․” (Citations omitted;  internal quotation marks omitted.)  Id.

“After the final decree, this court has limited the broad discretion given the trial court to modify custody orders under General Statutes § 46b-56 by requiring that modification of a custody award be based upon either a material change of circumstances which alters the court's finding of the best interests of the child ․ or a finding that the custody order sought to be modified was not based upon the best interests of the child ․ The parties and the minor child have an interest in the finality of judgments which arises upon the entry of a custody order incident to a final dissolution decree, and from which stems the material change in circumstances rule of postdecree custody modification.”  (Citations omitted;  internal quotation marks omitted.)   Hall v. Hall, 186 Conn. 118, 122-23, 439 A.2d 447 (1982).

“A party's prior conduct ․ may have a direct bearing on his or her present fitness to be a custodial parent.   In the exercise of its awesome responsibility to find the most salutary custodial arrangement for the children of divorce, the court must ․ take account of the parents' past behavior, since it must evaluate their present and future parenting ability and the consistency of their parenting for the purpose of determining which parent will better foster the children's growth, development and well-being ․ At the same time, however, the focus of the court's inquiry must be designed to meet the primary objective which is to determine the present parenting ability of the parties.”  Feinberg v. Feinberg, 114 Conn.App. 589, 596, 970 A.2d 776 (2009).

“Because the establishment of changed circumstances is a condition precedent to a party's relief, it is pertinent for the trial court to inquire as to what, if any, new circumstances warrants a modification of the existing order.   In making such an inquiry, the trial court's discretion is essential.   The power of the trial court to modify the existing order does not, however, include the power to retry issues already decided ․ or to allow the parties to use a motion to modify as an appeal ․ Rather, the trial court's discretion includes only the power to adapt the order to some distinct and definite change in the circumstances or conditions of the parties ․ [I]ts inquiry is necessarily confined to a comparison between the current conditions and the last court order ․ The court must first consider what circumstances have changed warranting a custody change and then make a custody determination on the basis of the best interest of the child ․ Among the various factors the court may consider when determining the best interest of the child are the parties' parenting skills ․ the child's emotional ties to each parent ․ the psychological instability of the parent and whether the child is in a stable and loving environment ․ In reaching 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.”  (Citations omitted;  internal quotation marks omitted.)   Butler v. Butler, Superior Court, judicial district of New London, Docket No. FA 07 4106263 (July 29, 2009, Shluger, J.).

In the present case, the plaintiff does not offer specific facts regarding the relocation of his primary residence sufficient to support a claim of a substantial change in circumstances.   Rather, the plaintiff merely states that he has moved “to a location which is much larger than at the time of dissolution and can accommodate the children.”   This evidences is insufficient to demonstrate to the court that a modification of the present custody, visitation and child support order is in the children's best interests.   Accordingly, the plaintiff has not carried his burden of showing the existence of a substantial change in circumstances.

Therefore, the motion to modify is denied.

BY THE COURT

Richard E. Burke, Judge

Burke, Richard E., J.