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Briggs v. Briggs
KATHRYN A. BRIGGS v. DAVID L. BRIGGS
(AC 46158)
Cradle, Suarez and Clark, Js.
Syllabus
The plaintiff appealed to this court from the judgment of the trial court
dissolving her marriage to the defendant and issuing various orders.
Held:
1. The trial court did not err in awarding the defendant the entirety of his
limited partnership interest in S Co., which had been issued to the
defendant by his former employer as part of his compensation: the court
expressly stated that it considered the factors listed in the applicable
statute (§ 46b-81) in dividing the marital property, and it explained its
consideration of several of those factors; moreover, contrary to the
plaintiff’s claim that the court treated the defendant’s interest in S Co.
as an ‘‘income-producing asset,’’ it was clear from the court’s decision
that it understood that the defendant’s interest was comprised of his
past earnings and it treated that interest as property; furthermore, the
court was not required to evenly divide the marital property, and its
other financial orders sufficiently provided for the plaintiff’s future financial support.
2. The trial court did not abuse its discretion in establishing the parenting
schedule for the parties’ four minor children: contrary to the plaintiff’s
contention, the court was not required to adopt one of the parenting
schedules proposed by the parties or the guardian ad litem, as the wishes
and desires of the parties comprised only one factor for the court’s
consideration; moreover, it was evident that the court carefully considered the proposed schedules and all of the testimony presented in establishing a schedule that it deemed to be in the best interests of the children.
3. This court declined to review the plaintiff’s claim that the trial court erred
in its orders concerning decision-making authority and expenses related
to the extracurricular activities of the parties’ children, the plaintiff
having raised the claim for the first time on appeal.
Argued May 23—officially released August 20, 2024
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial district of Stamford-Norwalk and tried to the court, Moukawsher, J.; judgment dissolving the marriage and
granting certain other relief, from which the plaintiff
appealed to this court. Affirmed.
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Briggs v. Briggs
Dana M. Hrelic, with whom was Stacie L.
Provencher, for the appellant (plaintiff).
Dyan M. Kozaczka, with whom was Ross M. Kaufman, for the appellee (defendant).
Opinion
CRADLE, J. The plaintiff, Kathryn A. Briggs, appeals
from the judgment of the trial court dissolving her marriage to the defendant, David L. Briggs. On appeal, the
plaintiff claims that the court erred in (1) awarding to
the defendant the entirety of his interest in Sunriver
Fund, LP (Sunriver Fund);1 (2) establishing a parenting
schedule unsupported by the evidence and in contrast
to the schedules suggested by both parties; and (3)
issuing orders concerning final decision-making authority as to the children’s extracurricular activities. We
affirm the judgment of the trial court.
The following facts, which are either undisputed or
were found by the trial court, and procedural history
are relevant to our consideration of the claims on
appeal. The parties were married in 2007 and have four
minor children born issue of the marriage. The plaintiff
commenced this action for dissolution on June 3, 2020.
By way of a memorandum of decision filed on November 9, 2022, following a trial at which both parties and
the children’s guardian ad litem testified, the court,
Moukawsher, J., rendered judgment dissolving the parties’ marriage. The court ordered that the parties would
share joint legal and physical custody of the children
and that they would have a parenting schedule that
gave each of them parenting time on both the weekdays
and the weekends. The court reasoned that its schedule,
which was different than the schedules proposed by
1
The Sunriver Fund is an entity through which the defendant’s former
employer provides incentive fees and bonuses to its employees in the form
of carried interest.
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Briggs v. Briggs
the parties, would prevent the defendant from being a
‘‘weekend dad,’’ as the plaintiff had essentially proposed, and that it would require fewer transitions from
one household to the other, which the court found was
better for the children than the multiple transitions
proposed by the defendant. The court awarded decision-making authority over the children’s extracurricular activities to one party for spring/fall and to the other
for summer/winter with the seasons rotated on an
annual basis, despite the plaintiff’s request that the parties be required to agree upon all extracurricular activities.
In issuing its financial orders, the court found that
the defendant had learned during the pendency of the
dissolution proceedings that he would be terminated
from his then employment with Sunriver Capital Management on November 30, 2022, and, upon the termination of his employment, the defendant was to redeem
in cash the entirety of his interest in the Sunriver Fund,
which consisted primarily of bonuses paid as carried
interest. The court awarded the entirety of the defendant’s interest to him, observing that ‘‘it is the money
that [the defendant] periodically takes as a capital gain
to create the annual income that he is to share with
[the plaintiff]’’ and that ‘‘[h]e will keep this money—
even though he must take it out of [the] Sunriver
[Fund]—so [that] she can keep getting a portion of it.’’
Despite the defendant’s impending unemployment,
the court attributed to him an earning capacity of $1.5
million per year, one half of which would likely be taxed
as capital gains, leaving him $915,000 per year in aftertax income. The court found that, during the pendency
of the dissolution action, the defendant had taken out
a mortgage on the marital residence to purchase the
plaintiff a $1.4 million home outright. The court ordered
that the plaintiff, who stayed home with the parties’
four children, would keep the new house and that the
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Briggs v. Briggs
defendant would retain the marital residence, along
with the debt associated therewith. The court awarded
the plaintiff $6000 per month in child support2 until the
parties’ youngest children turn eighteen years old and
$3230.77 per week in alimony until November, 2031. In
issuing this alimony order, the court rejected several
of the expenses the plaintiff listed on her financial affidavit.
On November 28, 2022, the plaintiff filed a motion to
reargue/reconsider focused solely on the court’s parenting schedule, which the court, Moukawsher, J., summarily denied. This appeal followed.
On January 9, 2023, the plaintiff timely appealed. Subsequently, on June 9, 2023, she filed a motion for articulation of the court’s dissolution judgment, to which the
defendant objected. The court, Moukawsher, J., denied
the plaintiff’s motion, adopting the reasoning provided
in the defendant’s objection, which will be discussed
herein as necessary.
Before turning to the plaintiff’s claims on appeal,
we first set forth our standard of review and other
applicable legal principles. ‘‘[T]he standard of review
in family matters is well settled. 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 the facts presented. . . . In determining
2
Specifically, the court explained: ‘‘It finds the presumptive amount in
agreement with [the plaintiff’s] guideline calculation of $921 a week or $3991
a month. Because the court rejects her suggestion that she receive additional
child support as a percentage of [the defendant’s] income, it agrees with
her that a deviation from the guidelines is merited by the high cost of living
in Darien, where both parties live. Therefore, from roughly $4000 a month
in child support the court deviates upward to $6000 a month in child support,
modifiable but payable until the youngest children [who are twins] become
eighteen years old. The deviation includes any adjustment that might otherwise be merited by the parenting time ordered below.’’ Neither party has
challenged the child support order on appeal.
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Briggs v. Briggs
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.
. . . Appellate review of a trial court’s findings of fact
is governed by the clearly erroneous standard of review.
. . . A finding of fact is clearly erroneous when there
is no evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.
. . . Our deferential standard of review, however, does
not extend to the court’s interpretation of and application of the law to the facts. It is axiomatic that a matter
of law is entitled to plenary review on appeal. . . .
As has often been explained, the foundation for [our
deferential] standard is that the trial court is in a clearly
advantageous position to assess the personal factors
significant to a domestic relations case . . . .’’ (Citation omitted; internal quotation marks omitted.) F. S.
v. J. S., 223 Conn. App. 763, 785,
310 A.3d 961 (2024).
With these principles in mind, we address the plaintiff’s
claims in turn.
I
The plaintiff first claims that the court erred in awarding the defendant the entirety of his interest in the
Sunriver Fund. We disagree.
On November 4, 2022, prior to trial, the parties filed
with the court a joint list of stipulated facts pertaining
to, inter alia, the Sunriver Fund. They stipulated: ‘‘The
defendant is currently employed at Sunriver Capital
Management in Greenwich, Connecticut but received
notice that he will be terminated from Sunriver Capital
Management effective November 30, 2022. . . . The
defendant’s compensation from Sunriver Capital Management consisted of wages, bonuses and incentive
fees. Incentive fees were received through Sunriver GP,
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Briggs v. Briggs
[LLC] and are transferred from Sunriver [GP, LLC] to
[the] Sunriver Fund . . . . The defendant’s [limited
partnership] interests in [the] Sunriver Fund . . . and
Sunriver GP, LLC, will be redeemed, incident to his
termination, at the capital balance as of October 31,
2022. . . . The defendant will receive a payment from
the redemption of his [limited partnership] interests in
[the] Sunriver Fund . . . and Sunriver GP, LLC, not
later than November 30, 2022, which payment will be
taxable to the defendant at ordinary income tax rates
and investment [tax rates]. . . . The defendant’s capital account balance for . . . [the] Sunriver Fund . . .
as of August 31, 2022, was $4,348,621.’’3
In issuing its financial orders, the court, as noted,
attributed to the defendant an earning capacity of $1.5
million per year. After noting that the defendant had
purchased a home for the plaintiff, the court posited:
‘‘What other property is available to divide?’’ The court
found that the defendant had ‘‘around $182,000 in the
bank, $546,000 in stocks, bonds and the like, and around
$1.2 million in retirement plans’’ and ordered the parties
to divide those assets equally. The court then explained:
‘‘[The plaintiff] also wants [one] half of [the defendant’s]
interest in [the] Sunriver Fund . . . . His interest in
[the] Sunriver Fund . . . is where his carried interest
resides. It was in his prior employer’s fund and carried
over to his most recent employer. It is the money that
he periodically takes as a capital gain to create the
annual income that he is to share with [the plaintiff].
He will keep this money—even though he must take it
out of [the] Sunriver [Fund]—so she can keep getting
a portion of it. This money will not be counted when
the parties divide accounts under the earlier provisions
of this order . . . .’’ The court indicated that it ‘‘will
leave [the defendant] the rest of his business interests
3
According to the defendant’s financial affidavit, his interest in the Sunriver Fund had a net value of $2,117,431.
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Briggs v. Briggs
as well. They aren’t nearly as substantial, and the court
is satisfied that its other orders have provided [the
plaintiff] with reasonable funds to make a future with.’’
In the plaintiff’s June 9, 2023 motion for articulation,
the plaintiff asked the court to articulate, inter alia,
whether it considered the defendant’s interest in the
Sunriver Fund to be property pursuant to General Statutes § 46b-81, and, if not, why not. The plaintiff also
asked the court to articulate the factual and legal bases
for its order awarding the entire interest in the Sunriver
Fund to the defendant ‘‘for the express purpose of paying his support despite assigning [him] an earning
capacity.’’
In his objection to the plaintiff’s motion for articulation, the defendant asserted that there was no ambiguity
in the court’s memorandum of decision that warranted
articulation. Specifically, as to the plaintiff’s requests
for articulation regarding the court’s orders pertaining
to the Sunriver Fund, the defendant argued that there
was no ambiguity in the court’s decision in that ‘‘[t]here
has never been a dispute that the interest in [the] Sunriver Fund . . . is property. The court acknowledged
it was property and both parties acknowledged the
same in their proposed orders.’’ The defendant also
argued that there is no ambiguity as to the legal and
factual bases for the court’s award of the interest in
the Sunriver Fund to him. Specifically, the defendant
recounted: ‘‘The court found that the money in [the]
Sunriver Fund . . . ‘is the money that [the defendant]
periodically takes as a capital gain to create the annual
income he is to share with [the plaintiff].’ . . . Additionally, the court found that ‘[the defendant] can
expect around $1,500,000 of annual income in the years
to come.’ . . . ‘The percentage of his income that
comes in the form of capital gains has varied in recent
years. The court believes it likely that 50 percent of
his income—$750,000—will continue to receive capital
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Briggs v. Briggs
gains treatment . . . .’ ’’ (Citations omitted.) The
defendant further noted that ‘‘[t]he court also provided
the legal basis for [its] orders when it stated as follows:
‘None of the court’s rulings . . . will reflect automatic
assumptions about gender roles nor will they reflect
percentage property division assumptions that may pertain in community property states but not in this state.
Instead, our General Statutes §§ 46b-81 and 46b-82 create a fact flexible scheme for considering alimony and
property distributions that focuses on what the parties
contributed to the marriage, the length of the marriage,
the parties’ needs, their ages, their health, along with
their prospects of making money and acquiring property
as shaped by their opportunities, their education, and
their work experience. This needed to be said here
because several of the factors happen to yield some
outcomes that conform to old stereotypes about how
courts craft their orders, but they come to that based
on these unique facts, not because they fit most circumstances.’ . . . [T]he trial court is required to consider
the statutory criteria, as the court expressly acknowledged [that] it did . . . . The court has provided both
factual and legal bases for its decision and there is no
ambiguity that needs clarification.’’ (Citations omitted.)
The court summarily denied the plaintiff’s motion for
articulation and expressly stated that it ‘‘agrees with
and adopts the reasoning of the objection to articulation
filed by [the defendant].’’
The following legal principles govern our resolution
of the plaintiff’s challenge to the court’s order pertaining
to the defendant’s interest in the Sunriver Fund. ‘‘In
dissolution proceedings, the court must fashion its
financial orders in accordance with the criteria set forth
in . . . § 46b-81 (division of marital property) . . . .
Pursuant to § 46b-81 (c), the court shall consider the
length of the marriage, the causes for the annulment,
dissolution of the marriage or legal separation, the age,
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Briggs v. Briggs
health, station, occupation, amount and sources of
income, earning capacity, vocational skills, education,
employability, estate, liabilities and needs of each of
the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also
consider the contribution of each of the parties in the
acquisition, preservation or appreciation in value of
their respective estates. . . .
‘‘While the trial court must consider the delineated
statutory criteria . . . no single criterion is preferred
over others, and the court is accorded wide latitude in
varying the weight placed upon each item under the
peculiar circumstances of each case. . . . A trial court
. . . need not give each factor equal weight . . . or
recite the statutory criteria that it considered in making
its decision or make express findings as to each statutory factor. . . .
‘‘Importantly, § 46b-81 (a) permits the farthest
reaches from an equal division as is possible, allowing
the court to assign to either the husband or wife all or
any part of the estate of the other. . . . On the basis
of the plain language of § 46b-81, there is no presumption in Connecticut that marital property should be
divided equally prior to applying the statutory criteria.
. . . Additionally, [i]ndividual financial orders in a dissolution action are part of the carefully crafted mosaic
that comprises the entire asset reallocation plan. . . .
Under the mosaic doctrine, financial orders should not
be viewed as a collection of single disconnected occurrences, but rather as a seamless collection of interdependent elements. . . . [W]e 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 the
facts presented.’’ (Citations omitted; emphasis omitted;
internal quotation marks omitted.) Pencheva-Hasse v.
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Briggs v. Briggs
Hasse, 221 Conn. App. 113, 129–30,
300 A.3d 1175
(2023).
‘‘[W]hen a trial court states in its memorandum of
decision that it has considered the factors listed in
§ 46b-81 (c) in fashioning an order distributing marital
property, the judge is presumed to have performed [his
or her] duty unless the contrary appears [from the
record].’’ (Internal quotation marks omitted.) Kammili
v. Kammili, 197 Conn. App. 656, 672,
232 A.3d 102,
cert. denied, 335 Conn. 947,
238 A.3d 18 (2020).
We first note that the court expressly stated that it
considered the factors listed in § 46b-81 and expressly
explained its consideration of several of them. Therefore, at the outset, we presume that the court properly
fulfilled its mandate to equitably distribute the marital
assets. The plaintiff nevertheless challenges the court’s
award of the entirety of the defendant’s interest in the
Sunriver Fund to the defendant.
The plaintiff’s challenge to the court’s award of the
defendant’s interest in the Sunriver Fund is twofold.
First, the plaintiff argues that the court’s order was
based on an erroneous factual finding that the Sunriver
Fund ‘‘ ‘create[s] the annual income’ ’’ that the defendant needs to satisfy the financial orders. The plaintiff
argues that the court erroneously found that the Sunriver Fund was, and treated it as, an ‘‘ ‘income producing
asset . . . .’ ’’ This argument merits little discussion. It
is clear from the court’s decision that it understood
that the defendant’s interest in the Sunriver Fund was
comprised of the defendant’s past earnings and, accordingly, treated his interest in the fund as property in
awarding it to him. The court confirmed this when it
expressly adopted the rationale in the defendant’s
objection to the plaintiff’s request for articulation,
wherein the defendant posited that the court found that
his interest in the Sunriver Fund was property. We thus
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Briggs v. Briggs
reject the plaintiff’s contention that the court erroneously characterized and treated the defendant’s interest
in the Sunriver Fund as an income producing asset
when it awarded it to the defendant.4
The plaintiff also argues that the court’s award of the
defendant’s entire interest in the Sunriver Fund to the
defendant ‘‘results in an inequitable windfall to the
defendant’’ that constituted an abuse of its discretion.
The plaintiff contends that the court erred in awarding
the defendant his interest in the Sunriver Fund in its
entirety because it had ‘‘divided all other marital property mostly equally between the parties.’’ She contends
that the court only mentioned § 46b-81 at the beginning
of its decision and that it failed to ‘‘expressly state that
it considered all of the statutory criteria at any point
in its decision.’’ As stated previously in this opinion, it
is well established that the court was not required to
do so. The court also thoroughly explained the basis
for its financial orders, citing many of those statutory
factors that the plaintiff complains the court did not
consider, including the parties’ respective ages, employability and contributions to the marriage.
The plaintiff complains that the court’s financial
orders, particularly its award of the entire interest in
the Sunriver Fund to the defendant, ‘‘precludes [her]
from meeting the existing standard of living to which
she and her family were accustomed.’’ (Emphasis omitted.) The plaintiff’s argument ignores the court’s other
financial orders that provided for her future financial
support. First, the defendant took out a mortgage on
the marital residence, his home going forward, to purchase a new home for the plaintiff in Darien, where the
4
The plaintiff argues that the court’s allegedly erroneous finding was the
sole basis for the court’s order awarding the interest in the Sunriver Fund
in its entirety to the defendant. This argument is belied by the court’s express
consideration of several of the enumerated statutory factors that govern
the distribution of marital property.
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Briggs v. Briggs
parties lived during the marriage, that was unencumbered by a mortgage. The court ordered that the plaintiff
would retain that home for herself, free and clear of
any claim by the defendant. Although the defendant
retained the marital home, that home now was encumbered by a substantial mortgage that did not exist prior
to the commencement of this action. Thus, not only did
the plaintiff receive $1.4 million of marital assets by
virtue of that transaction, but the defendant assumed
a liability in that amount. The court also deviated from
the child support guidelines on the basis of the high
cost of living in Darien, the location of the unencumbered home that the defendant purchased for the plaintiff, and awarded the plaintiff $2000 per month more
child support than contemplated by the guidelines. The
court also awarded the plaintiff a significant amount
of periodic alimony. The court found that the defendant
had ‘‘around $182,000 in the bank, $546,000 in stocks,
bonds and the like, and around $1.2 million in retirement
plans,’’ which he ordered the parties to divide equally.
In short, this is not a case in which the plaintiff was
left with nothing, and, as stated herein, the court was
not required to split the marital assets equally. See
O’Brien v. O’Brien, 326 Conn. 81, 122–23,
161 A.3d 1236
(2017) (court upheld property distribution ratio of 78
percent to 22 percent); Sweet v. Sweet, 190 Conn. 657,
664,
462 A.2d 1031 (1983) (court upheld distribution
awarding 90 percent of marital estate to one party).
Given the entire mosaic of the court’s financial orders,
we are not persuaded by the plaintiff’s argument that
the court’s orders were inequitable. Accordingly, we
conclude that the court did not abuse its discretion in
awarding the defendant the entirety of the interest in
the Sunriver Fund.
II
The plaintiff next claims that the court erred in establishing a parenting schedule that was ‘‘unsupported by
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Briggs v. Briggs
the evidence and in contrast to the schedules suggested
by both parties.’’5 We disagree.
In considering the parties’ access to the minor children, the court set forth the following facts. ‘‘The parties
and the [guardian ad litem] agree that the . . . children
are stable and adaptable. The parties will have joint
legal and physical custody of their four children . . . .
‘‘The children have been splitting time between their
parents’ homes for around two years while the divorce
has been pending. Under the agreement they made during the lawsuit, they spend more weekday time with [the
plaintiff] and more weekend time with [the defendant].
‘‘[The plaintiff] has more time with the children now,
but she does have more time for them. [The defendant]
has more time than he used to, but he still does not
have the unlimited time [that the plaintiff] does.
‘‘Naturally, [the plaintiff] has this free time only
because [the defendant] labors to create it for her.
Doubtless, he resents that his obligation to do this also
puts him in a subordinate position as a parent. He might
even see this subordination as a kind of competition
between them that [the plaintiff] wants to win. And
perhaps it is. [The plaintiff] is a good parent. In most
ways a reasonable parent. But parenting is her only job,
and she wants to dominate it. If true, this isn’t good
for the children, and it isn’t fair to [the defendant].
‘‘Dividing time here is a tough question. Perhaps [the
plaintiff] should dominate the children’s schedule
because she does have more time for them. But perhaps
she is keeping the children too much from being part
of [the defendant’s] everyday world, including his work
obligations and their school obligations. Indeed, while
5
The three parenting schedules proposed to the court, one by each party
and one by the guardian ad litem, all provided for shared legal and physical
custody of the minor children and shared several similarities.
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Briggs v. Briggs
the [guardian ad litem] leaned toward the existing
schedule with a minor difference, she fully acknowledged the reasonableness of the [defendant’s] view and
felt the children would fully adapt to it or any other
reasonable approach.
‘‘In the end, the court thinks [the plaintiff’s] proposed
schedule leaves [the defendant] a weekend dad. But
[the defendant’s] schedule shifts the children around
too much. It makes some sense that both parents enjoy
weekend time with the children, but his version of it
means they can’t settle in with a parent for a continuous
stretch of days. They bounce around more. This happens too with the [plaintiff’s] suggestion of periodic
dinners with [the defendant] on Mondays. The court
believes that fewer transitions are better and that it is
good when those transitions can happen mostly at
school to reduce the chilly interactions between the
parties the court has heard about.’’
The court then set forth a parenting schedule rotating
every two weeks, which provided more weekday parenting time to the plaintiff and more weekend parenting
time with the defendant.6 The court explained: ‘‘This
schedule will be simple for the children to learn. It will
keep them together for longer blocks with each parent.
6
Specifically, the court ordered the following parenting schedule:
‘‘Week one:
‘‘[The Plaintiff]: Monday from 9 a.m. or pickup at school on school days
until 9 a.m. on Thursday or drop off at school on school days. ([The plaintiff]
has three overnights).
‘‘[The Defendant]: Thursday from 9 a.m. or pick up from school on school
days to Monday at school drop off on school days or 9 a.m. ([The defendant]
has four overnights).
‘‘Week two:
‘‘[The Plaintiff]: Sunday at 9 a.m. until 9 a.m. on Thursday or drop off at
school on school days. ([The plaintiff] has four overnights).
‘‘[The Defendant]: Thursday from pickup at school on school days or 9
a.m. to Sunday at 9 a.m. ([The defendant] has three overnights).’’
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Briggs v. Briggs
[The defendant] does get a lot of his time on the weekend, but [the plaintiff] picks up a Sunday and [the defendant] increases his weekday time.’’7
In the plaintiff’s June 9, 2023 motion for articulation,
the plaintiff asked the court to articulate, inter alia,
the factual and legal bases for its finding that ‘‘ ‘fewer
transitions are better’ ’’ for the minor children. The
defendant filed an objection to the plaintiff’s motion,
arguing, as to the particular request, that ‘‘[t]he [plaintiff] testified herself that ‘it is most important for our
children to have structure and stability and less transitions . . . .’ ’’ He further argued that the plaintiff ‘‘also
testified that ‘our children do best without a lot of
transitions.’ . . . Additionally, the guardian ad litem
testified that, ‘based on my conversations with the children’s therapists, any schedule that’s predictable and
has, you know, a limited number of transitions is in
their best interest.’ . . . It is disingenuous for the
[plaintiff] to make assertions to the court that, in turn,
the court accepts and essentially adopts and then seek
the factual basis for the court subscribing to her own
claims. . . . The [plaintiff’s] attempt to change her
position from trial on appeal is disingenuous and there
is no ambiguity for the court to clarify. Therefore, articulation of this issue is unnecessary.’’ (Citations omitted.)
As noted herein, the court summarily denied the plaintiff’s motion for articulation and expressly stated that
it ‘‘agrees with and adopts the reasoning of the objection
to articulation filed by [the defendant].’’
The plaintiff claims on appeal that the court’s order
was improper in that it was not requested by either
party or the guardian ad litem8 and it was not supported
7
The court also issued orders as to holidays and vacation, which are not
at issue in this appeal.
8
On November 16, 2022, the court issued the following order: ‘‘The trial
having concluded and with no motions remaining regarding custody, the
appointment of the guardian ad litem is hereby terminated.’’
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by the evidence. Our Supreme Court has explained that
‘‘[it] has consistently held in matters involving child
custody [and visitation] . . . that while the rights,
wishes and desires of the parents must be considered
it is nevertheless the ultimate welfare of the child [that]
must control the decision of the court. . . . In making
this determination, the trial court is vested with broad
discretion which can . . . be interfered with [only]
upon a clear showing that that discretion was abused.
. . . Thus, a trial court’s decision regarding child custody [or visitation] must be allowed to stand if it is
reasonably supported by the relevant subordinate facts
found and does not violate law, logic or reason. . . .
Under [General Statutes] § 46b-56 (c), the court, in
determining custody, must consider the best interests
of the child and, in doing so, may consider, among
other factors, one or more of the [seventeen] factors
enumerated in the provision.9
9
General Statutes § 46b-56 (c) provides: ‘‘In making or modifying any
order as provided in subsections (a) and (b) of this section, the court shall
consider the best interests of the child, and in doing so, may consider, but
shall not be limited to, one or more of the following factors: (1) The physical
and emotional safety of the child; (2) the temperament and developmental
needs of the child; (3) the capacity and the disposition of the parents to
understand and meet the needs of the child; (4) any relevant and material
information obtained from the child, including the informed preferences of
the child; (5) the wishes of the child’s parents as to custody; (6) the past
and current interaction and relationship of the child with each parent, the
child’s siblings and any other person who may significantly affect the best
interests of the child; (7) the willingness and ability of each parent to
facilitate and encourage such continuing parent-child relationship between
the child and the other parent as is appropriate, including compliance with
any court orders; (8) any manipulation by or coercive behavior of the parents
in an effort to involve the child in the parents’ dispute; (9) the ability of
each parent to be actively involved in the life of the child; (10) the child’s
adjustment to his or her home, school and community environments; (11)
the length of time that the child has lived in a stable and satisfactory
environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily
leaves the child’s family home pendente lite in order to alleviate stress in the
household; (12) the stability of the child’s existing or proposed residences,
or both; (13) the mental and physical health of all individuals involved,
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‘‘[T]he authority to exercise the judicial discretion
[authorized by § 46b-56] . . . is not conferred [on our
appellate courts], but [on] the trial court, and . . . we
are not privileged to usurp that authority or to substitute
ourselves for the trial court. . . . A mere difference of
opinion or judgment cannot justify our intervention.
Nothing short of a conviction that the action of the trial
court is one [that] discloses a clear abuse of discretion
can warrant our interference.’’ (Citations omitted; footnote added; internal quotation marks omitted.) Zhou v.
Zhang, 334 Conn. 601, 632–33,
223 A.3d 775 (2020).
‘‘[T]rial courts have a distinct advantage over an appellate court in dealing with domestic relations, where all
of the surrounding circumstances and the appearance
and attitude of the parties are so significant. . . . It is
a rare case in which a disappointed litigant will be able
to demonstrate abuse of a trial court’s broad discretion
in . . . matters [concerning the care and custody of
children].’’ (Citations omitted; internal quotation marks
omitted.) Yontef v. Yontef, 185 Conn. 275, 279,
440 A.2d
899 (1981).
In challenging the parenting schedule ordered by the
court, the plaintiff argues that ‘‘the court’s decision
appears to elevate its own wisdom above not only the
respective positions of the parties but also that of the
guardian ad litem.’’ She complains that the parenting
schedule ordered by the court ‘‘was created of its own
except that a disability of a proposed custodial parent or other party, in
and of itself, shall not be determinative of custody unless the proposed
custodial arrangement is not in the best interests of the child; (14) the child’s
cultural background; (15) the effect on the child of the actions of an abuser,
if any domestic violence, as defined in section 46b-1, has occurred between
the parents or between a parent and another individual or the child; (16)
whether the child or a sibling of the child has been abused or neglected,
as defined respectively in section 46b-120; and (17) whether the party satisfactorily completed participation in a parenting education program established pursuant to section 46b-69b. The court is not required to assign any
weight to any of the factors that it considers, but shall articulate the basis
for its decision.’’
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volition.’’ This argument ignores the fundamental principle that it is the court’s role and responsibility to
determine the best interests of the minor children. A
court’s failure to do so would constitute a dereliction
of its statutory duty. The plaintiff’s claim that the court
should have adopted a parenting schedule that was
suggested by one of the parties or the guardian ad litem
finds no support in the law. At trial, the court was
presented with three proposed parenting schedules,
one from each party and one from the guardian ad litem.
The plaintiff testified that she did not believe that the
schedule proposed by the guardian ad litem was in the
children’s best interests. She likewise did not support
the defendant’s proposed schedule. Thus, the plaintiff’s
real complaint is that the court did not order her proposed schedule. It is axiomatic that the court was not
required to do so. As noted previously in this opinion,
the wishes and desires of the parents are only one
factor for the court’s consideration and that factor is
overridden by the court’s consideration of the best interests of the children, which the court expressly considered.
The plaintiff’s claim that the court’s schedule was
unsupported by the record also is misplaced. As the
defendant noted in his objection to the plaintiff’s
request for articulation, the plaintiff and the guardian
ad litem both testified that the children would fare best
under a schedule with fewer transitions, and the court
credited that testimony and established a parenting
schedule that minimized transitions. Additionally, the
plaintiff testified that she was better suited to meeting
the children’s weekday needs and providing the structure and routine that they need during the school week
whereas the defendant ‘‘shines’’ on the weekends. She
repeatedly emphasized that she is very organized and
ensures that the children have the structured routine
that they need during the school week. She also testified
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that her schedule is flexible and allows her to adapt
to changes that occur in the children’s schedules. She
stated that she was proposing that the defendant get
‘‘a disproportionate amount of the weekend parenting
time’’ just as he had by way of the pendente lite schedule. She testified that it was important for the defendant
to have more weekend time with the children than she
because ‘‘[h]is parenting skills during downtime are
very strong’’ and the children enjoy spending their
downtime with the defendant.
On the basis of the testimony of the parties and the
guardian ad litem, we cannot conclude that the parenting schedule ordered by the court was unsupported by
the evidence. Although the schedule ordered by the
court was not the exact schedule that either party
requested and leaves the plaintiff with minimal weekend time with the children, it is evident from the court’s
decision that it carefully considered the schedules proposed by the parties and the guardian ad litem and all
of the testimony presented and ordered a schedule that
it deemed to be in the best interests of the children.
We cannot conclude that the court abused its discretion
in doing so.
III
The plaintiff also claims that the court erred by alternating final decision-making authority as to the children’s extracurricular activities evenly between the parties because it also required the parties to equally divide
the costs of all the children’s extracurricular activities
rather than only those expenses on which they mutually
agreed.10
10
General Statutes § 46b-56a provides in relevant part: ‘‘(a) For the purposes of this section, ‘joint custody’ means an order awarding legal custody
of the minor child to both parents, providing for joint decision-making by
the parents and providing that physical custody shall be shared by the
parents in such a way as to assure the child of continuing contact with both
parents. The court may award joint legal custody without awarding joint
physical custody where the parents have agreed to merely joint legal custody.
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In the proposed orders that the defendant filed with
the court and at trial, the defendant asked the court to
issue an order affording each party an opportunity to
be the final decision maker as to the children’s participation in extracurricular activities if they could not come
to an agreement. In her trial testimony, the guardian
ad litem also recommended that the court issue such
an order. In the plaintiff’s proposed orders, she proposed that the parties equally share the cost of any
agreed upon extracurricular activities. She did not propose any order as to decision-making authority.
In its memorandum of decision, the court explained:
‘‘Sometimes the parties can’t agree on extracurricular
activities and camps. The court agrees with the [guardian ad litem] that alternating final decision-making
authority can work here because the parties are both
reasonable. Therefore, when they can’t agree, in odd
years [the plaintiff] will make final decisions about fall
and spring activities and [the defendant] will make final
…
‘‘(d) In any proceeding before the Superior Court involving a dispute
between the parents of a minor child with respect to the custody, care,
education and upbringing of such child, the parents shall file with the court,
at such time and in such form as provided by rule of court, a proposed
parental responsibility plan that shall include, at a minimum, the following:
(1) A schedule of the physical residence of the child during the year; (2)
provisions allocating decision-making authority to one or both parents
regarding the child’s health, education and religious upbringing; (3) provisions for the resolution of future disputes between the parents, including,
where appropriate, the involvement of a mental health professional or other
parties to assist the parents in reaching a developmentally appropriate resolution to such disputes; (4) provisions for dealing with the parents’ failure
to honor their responsibilities under the plan; (5) provisions for dealing
with the child’s changing needs as the child grows and matures; and (6)
provisions for minimizing the child’s exposure to harmful parental conflict,
encouraging the parents in appropriate circumstances to meet their responsibilities through agreements, and protecting the best interests of the child.
‘‘(e) The objectives of a parental responsibility plan under this section
are to provide for the child’s physical care and emotional stability, to provide
for the child’s changing needs as the child grows and to set forth the authority
and responsibility of each parent with respect to the child. . . .’’
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decisions about winter and summer activities. Each
year they will switch the two seasons allocated to them.
The parties will evenly divide all extracurricular
expenses.’’
The plaintiff argues that the court should have put a
cap on the cost of extracurricular activities and that
the court’s order is not fair to her because the defendant
has more money than she does to pay for the extracurricular activities and allowing him to have final decision-making authority for one half of each year as to which
activities the children will participate in exposes her
to a financial burden that improperly diminishes the
court’s child support order. The plaintiff did not, however, raise these arguments before the trial court.
Despite the fact that this issue was clearly raised by
the defendant, in both his proposed orders and at trial,
and the guardian ad litem,11 the plaintiff did not, at
any time, express opposition to or concern with the
imposition of such an order. She did not argue that she
would be unduly burdened by an order affording both
parties the opportunity to make the final decisions as
to the children’s extracurricular activities, nor did she
ask the court to issue an order imposing a cap on the
cost of the children’s extracurricular activities. We
therefore decline to review this claim that the plaintiff
11
At trial, the guardian ad litem testified: ‘‘The one addition I would make
to the joint legal custody paradigm is I would include language that provides
for either [the plaintiff] or [the defendant] in an alternating way to be final
decision makers over extracurricular activities for the children should they
be unable to reach consensus so that there isn’t a stalemate with regard to
what activities the children can participate in.
‘‘The [defendant] has suggested a paradigm that I think the court should
adopt, which is one that provides for an alternating schedule based on spring
and summer activities—or, I’m sorry—winter and summer activities with
one parent and fall and spring activities with the other and then flipping
on the alternate year so that there would be . . . an alternating schedule.’’
She explained: ‘‘I’m hoping that they can work cooperatively. It’s really a
fallback default protocol. You know, they have to work cooperatively to
reach consensus and if they can’t, then there’s a fallback.’’
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is raising for the first time on appeal.12 Dessa, LLC v.
Riddle, 223 Conn. App. 457, 464,
308 A.3d 1051 (2024)
(‘‘It is well known that this court is not bound to consider a claim unless it was distinctly raised at the trial
or arose subsequent to the trial. Practice Book § 60-5.
The requirement that [a] claim be raised distinctly
means that it must be so stated as to bring to the attention of the court the precise matter on which its decision
is being asked. . . . The reason for the rule is obvious:
to permit a party to raise a claim on appeal that has
not been raised at trial—after it is too late for the trial
court . . . to address the claim—would encourage
trial by ambuscade, which is unfair to both the trial
court and the opposing party.’’ (Internal quotation
marks omitted.)).
The judgment is affirmed.
In this opinion the other judges concurred.
12
The plaintiff argues that ‘‘[t]he court did not articulate the reasons for
its orders, including why it did not establish a cap on the fees for any
particular extracurricular activity or require that all extracurricular activities
be agreed upon by the parties, despite being asked to by the plaintiff.’’ In
so arguing, the plaintiff cites to her motion for articulation and her motions
for review of the denial of her motion for articulation. Contrary to the
plaintiff’s representation, she did not, in either of those filings, ask the court
to articulate its order pertaining to extracurricular activities.
