Opinion
LLIFA104009253S
07-31-2018
Jennifer M. ROGERS v. Marc J. ROGERS
UNPUBLISHED OPINION
Bentivegna, J.
I
STATEMENT OF CASE
This matter concerns a postjudgment motion to modify relating to school placement. A judgment of dissolution was entered pursuant to the parties’ Agreement and Stipulation (# 116) on August 3, 2010. Article II, Custody and Access, § 3.1 provides that "[t]he parties shall share physical and legal custody of the minor children ... and primary residence shall be with the Mother. The parties agree to discuss major issues concerning their children, such as education, medical decisions, dental treatment, religious upbringing and their general welfare."
The parties later stipulated on November 26, 2014, that the "[c]hildren shall remain in the Plymouth school district through graduation from elementary school. Starting in sixth grade, the children shall attend the New Hartford School District." At the December 17, 2014 hearing, the parties and the guardian ad litem (GAL) affirmed under oath that the stipulation was fair and equitable, and in the best interests of the children. Transcript, December 17, 2014, pp. 3 & 5. Thereafter, the court, Marano, J., found the agreement to be fair and equitable, and in the best interests of the children. The court thereby accepted the agreement, making it an order of the court. Transcript, December 17, 2014, p. 7.
On October 23, 2017, the plaintiff filed a postjudgment motion for modification of the parties’ parenting plan. Among other requests, the plaintiff moved to modify the school placement order so that the children continue in their current school district in the school system that they have attended since pre-kindergarten, which is the Plymouth School District. The children are now eleven and ten years old, respectively.
On March 21, 2018, the parties entered into an agreement regarding all of the outstanding issues except school placement. The plaintiff filed an amended postjudgment motion for modification of parenting plan on April 9, 2018. On June 18, 2018, the defendant filed a motion to dismiss the plaintiff’s amended postjudgment motion for modification arguing that the motion fails to allege facts supporting a finding of material change in circumstances as required by General Statutes § 46b-56; fails to comply with Practice Book § 25-26(e), as the allegations are facially insufficient to invoke properly the court’s jurisdiction for the claimed modification of custody; and, therefore, the court lacks subject matter jurisdiction under Practice Book § 10-30(a)(1).
On July 2, 2018, the plaintiff filed a memorandum in opposition to defendant’s motion to dismiss. The plaintiff argues that the defendant is misreading the applicable law, and that the motion to dismiss must be denied.
The parties appeared before the court to argue their respective positions on July 16, 2018. The defendant concedes that there is information obtained from the children that their preference is to remain in the Plymouth School District. For the reasons stated below, the defendant’s motion to dismiss is granted, and the plaintiff’s motion for modification is denied.
II
DISCUSSION
"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 ... [T]he court may assign parental responsibility for raising the child to the parents jointly, or may award custody to either parent or to a third party, according to its best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable." General Statutes § 46b-56(a). The trial court "continues to have jurisdiction over custody and visitation matters subject to a motion to modify pursuant to General Statutes § 46b-56." Ruggiero v. Ruggiero, 76 Conn.App. 338, 346 n.6, 819 A.2d 864 (2003).
"[Our Supreme 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." (Emphasis added; internal quotation marks omitted.) Walshon v. Walshon, 42 Conn.App. 651, 657, 681 A.2d 376 (1996), citing Hall v. Hall, 186 Conn. 118, 122, 439 A.2d 447 (1982). See also Senior v. Senior, 4 Conn.App. 94, 97, 492 A.2d 523 (1985) (in exercising limited discretion trial court may deny motion for modification of custody finding no material change of circumstances altering original court’s best interests of children finding). The statutory "requirements are based on the interest in finality of judgments ... and the family’s need for stability ... The burden of proving a change to be in the best interest of the child rests on the party seeking the change ... Not all changes occurring in the time between the prior custody order and the motion for modification are material ... Although there are no bright-line rules for determining when a material change in circumstances warranting the modification of custody has occurred, there are several relevant considerations, including whether ... the change was not known or reasonably anticipated when the order was entered, and the change affects the child’s well-being in a meaningful way." (Citations omitted; internal quotation marks omitted.) Clougherty v. Clougherty, 162 Conn.App. 857, 868-70, 133 A.3d 886, cert. denied, 320 Conn. 932, 134 A.3d 621 (2016).
The court agrees with the defendant’s argument that educational matters, including school placement, are a component of custody. See Carroll v. Carroll, 55 Conn.App. 18, 25-26 (1996) (" ‘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 difference between a sole custodian and a joint legal custodian is that the sole custodian has the ultimate authority to make all decisions regarding a child’s welfare, such as education, religious instruction and medical care whereas a joint legal custodian shares the responsibility for those decisions.’ [citations omitted; emphasis added; internal quotation marks omitted.] ). Connecticut School Law also recognizes education as a component of legal custody. See General Statutes § § 10-15b, 10-16e, 10-18d, and 46b-56(g) ("A parent not granted custody of a minor child shall not be denied the right of access to the academic, medical, hospital or other health records of such minor child, unless otherwise ordered by the court for good cause shown.") Moreover, in the present case, the judgment of dissolution reflects the parties’ original, shared view of education as a custody issue. (See Agreement and Stipulation, # 116, p. 2.)
In modifying a custody order, the court must make a finding of either: a material change of circumstances, or that the order sought to be modified was not based upon an evidentiary determination as to the children’s best interests. "To obtain a modification, the moving party must demonstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it. 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 ... Rather, the trial court’s discretion only includes the power to adapt the order to some distinct and definite change in the circumstances or conditions of the parties." (Citations omitted; internal quotation marks omitted.) Kelly v. Kelly, 54 Conn.App. 50, 55-56, 732 A.2d 808 (1999).
In the present case, the plaintiff is requesting modification of the order relating to the children’s school placement. Citing to § 46b-56(c), the plaintiff alleges that: (1) "relevant and material information has been obtained from the child(ren) since the filing of the Motion for Modification"; (2) the court must consider: the informed preference of the child; each parent’s ability to be actively involved in the life of the child; the child’s adjustment to his or her home, school and community environments; and, the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment; (3) the "GAL has received relevant and material information from the children, who must also consider their informed preferences in making a determination as to their best interests; and, (4) the children, in their ongoing therapeutic sessions, have communicated their preferences to their health care professional, whose testimony, pursuant to statute, must be heard in determining the children’s best interests." The requested relief is that the children remain "in their current school district in the school system they have attended since pre-kindergarten until graduation from high school."
The plaintiff’s amended motion for modification makes no mention of either a material change of circumstances which alters the original court’s finding of the children’s best interests, or that the custody order sought to be modified was not based upon the best interests of the children. In the present circumstances, in order to provide the plaintiff with the relief requested, the court must find a distinct and definite change in the circumstances or conditions of the parties. Construing the plaintiff’s amended motion to modify in a manner most favorable to her, the court finds that the plaintiff has failed to sufficiently allege changed circumstances which would be unjust or inequitable to hold either party to the original court order. The allegations pleaded in the plaintiff’s motion do not constitute new circumstances; therefore, because the allegation of changed circumstances is a condition precedent to the plaintiff’s relief, a modification of the existing order is not warranted.
In addition, the children’s stated school preference does not rise to the level of a material change in circumstances. In Malave v. Ortiz, 114 Conn.App. 414, 416, 970 A.2d 743 (2009), the Appellate Court held that the trial court did not fail to give proper weight to the child’s expressed wishes when it concluded that the child’s stated preference, in and of itself, was not a demonstration of a material change of circumstances, and, furthermore, that the child’s informed preference was irrelevant to the determination of whether a material change in circumstances had occurred. Id., 430. Because the trial court had determined that "the child’s wish" was not a material change in circumstances, there was no reason to consider the factors affecting the best interest of the child, because the child’s best interests are considered only after determining that a material change in circumstances has occurred. Id., 427. On appeal, the Appellate Court noted that the movant’s argument seemed to conflate child’s preference with the best interest of the child standard. Id., 430.
In the present case, this court reaches the same conclusion for similar reasons. The plaintiff’s rationale for the modification, i.e., the children’s expressed preference to remain in the Plymouth School District, does not constitute a material change of circumstances, rendering the motion for modification facially insufficient. Additionally, when the parties entered into the stipulation, they were in agreement that the change in school systems was in the best interests of the children. Moreover, because the parties expressly stipulated to this change in school districts, the change was both known and reasonably anticipated. The plaintiff has failed to allege and demonstrate that the custody order sought to be modified was not based upon the best interests of the children, or that a material change of circumstances has altered the original court’s finding of the best interests of the children.
III
CONCLUSION
For the above-stated reasons, the defendant’s motion to dismiss is granted, and the plaintiff’s motion for modification is denied.
SO ORDERED.