Summary
concluding that trial court improperly awarded joint custody without pleading requesting joint custody, agreement of parties to joint custody, or motion for conciliation following motion for joint custody by one party
Summary of this case from Coleman v. BembridgeOpinion
(9465)
The defendant appealed to this court from the judgment of the trial court dissolving his marriage to the plaintiff, awarding joint custody of the parties' minor children and making certain financial awards. Held that because neither party sought joint custody, the trial court should not have ordered it; accordingly, the case was remanded to the trial court for a new trial as to custody and all financial orders.
Argued May 30, 1991
Decision released July 30, 1991
Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of New Haven and tried to the court, Freedman, J.; judgment dissolving the marriage and granting certain other relief, from which the defendant appealed to this court; thereafter, the court, Mihalakos, J., granted the plaintiff's motion for an order to compel the defendant to contribute to the payment of expenses of psychological therapy for one of the parties' minor children, and the defendant filed an amended appeal. Reversed; new trial.
Hugh F. Keefe, with whom, on the brief, were Mary Beattie Schairer, John J. Keefe, Jr., Charles Tiernan and Richard Lynch, for the appellant (defendant).
Gary I. Cohen, with whom was Lee Marlow, for the appellee (plaintiff).
Roberta S. Friedman, for the minor children.
The defendant appeals from the judgment of dissolution and the attendant orders determining child custody and financial awards. The defendant challenges the trial court's orders providing (1) joint custody of the parties' two minor children, (2) various financial orders, (3) certain postjudgment financial awards that are retroactive to the date of judgment, and (4) counsel fees for the minor children. Because our decision regarding the first claim is dispositive, we do not address the defendant's other claims.
The facts relevant to our resolution of this matter may be briefly summarized as follows. The parties were married on July 4, 1976, and, at the time of judgment there were two minor sons, ages nine and seven, that were issue of the marriage. The court, Freedman, J., dissolved the marriage after finding that it had broken down irretrievably. After noting that one of the major issues was the custody of the minor children, the court awarded joint custody but gave the plaintiff the final decision making authority regarding the children. The primary residence of the children was with the plaintiff and certain delineated visitation rights were granted to the defendant. The defendant was ordered to pay $150 per week for the support of each child, and certain provisions were made to ensure that health insurance was maintained. No alimony was awarded. The marital home was awarded to the plaintiff subject to the existing first mortgage that became her sole obligation. The contents of the marital home were also awarded to the plaintiff. The defendant was ordered to pay certain medical expenses and witness fees, and the counsel fees for the minor children.
A postjudgment hearing was held on November 20, 1990, during which the court, Mihalakos, J., entered further orders regarding the payment of psychotherapy costs for the two minor children and the payment of attorney's fees for the children.
As a preliminary matter, we must determine whether the court, under the circumstances of this case, was authorized to award joint custody.
General Statutes 46b-56a (a) provides: "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."
"A court may award joint legal custody, with or without joint physical custody, if the parties agree to joint custody or if one party seeks joint custody"; Emerick v. Emerick, 5 Conn. App. 649, 657, 502 A.2d 933 (1985), cert. dismissed, 200 Conn. 804, 510 A.2d 192 (1986); or by a motion for conciliation after a party has made a motion seeking joint custody. Id. "When one of the parties has sought joint custody in the pleadings, it is not error for the court, in the exercise of its discretion, to award joint custody." Giordano v. Giordano, 9 Conn. App. 641, 645, 520 A.2d 1290 (1987).
In this case, there is no pleading requesting joint custody. There is neither an agreement to joint custody nor a motion for conciliation by one of the parties following a motion for joint custody. Cf. Cabrera v. Cabrera, 23 Conn. App. 330, 344-47, 580 A.2d 1227, cert. denied, 216 Conn. 828, 582 A.2d 205 (1990).
General Statutes 46b-56a (b) provides: "There shall be a presumption, affecting the burden of proof, that joint custody is in the best interests of a minor child where the parents have agreed to an award of joint custody or so agree in open court at a hearing for the purpose of determining the custody of the minor child or children of the marriage. If the court declines to enter an order awarding joint custody pursuant to this subsection, the court shall state in its decision the reasons for denial of an award of joint custody."
General Statutes 46b-56a (c) provides: "If only one parent seeks an order of joint custody upon a motion duly made, the court may order both parties to submit to conciliation at their own expense with the costs of such conciliation to be borne by the parties as the court directs according to each party's ability to pay."
We might determine that the award of custody in this case is the functional equivalent of an award of sole custody because it grants the plaintiff ultimate authority in all decisions regarding the children's welfare. We reject this argument, however, because joint custody is the trial court's own determination of the meaning of its order. We, therefore, determine that some form of joint custody was awarded, and, because that award was made without agreement of the parties pursuant to General Statutes 46b-56a, or after motion by one of the parties, it was improperly granted.
See Emerick v. Emerick, 5 Conn. App. 649, 657 n. 9, 502 A.2d 933 (1985).
Having so concluded, we are required to remand this action for a new trial with respect to custody and to all financial issues. The issues involving custody of the minor children and division of property and financial orders are so interwoven as to require that they be decided as part of one integrated resolution. See Sunbury v. Sunbury, 210 Conn. 170, 174-75, 553 A.2d 612 (1989); Trella v. Trella, 24 Conn. App. 219, 223, 587 A.2d 162, cert. denied, 219 Conn. 902, 593 A.2d 132 (1991).