Opinion
AC 43482
09-28-2021
Leonard TANNENBAUM v. Stacey TANNENBAUM
Janet A. Battey, with whom, on the brief, was Olivia M. Eucalitto, for the appellant (plaintiff). Jon T. Kukucka, with whom, on the brief, was Johanna S. Katz, Hartford, for the appellee (defendant).
Janet A. Battey, with whom, on the brief, was Olivia M. Eucalitto, for the appellant (plaintiff).
Jon T. Kukucka, with whom, on the brief, was Johanna S. Katz, Hartford, for the appellee (defendant).
Elgo, Alexander and Devlin, Js.
ALEXANDER, J. The plaintiff, Leonard Tannenbaum, appeals from the judgment of the trial court denying the motion for contempt filed by the defendant, Stacey Tannenbaum. On appeal, the plaintiff claims that the court improperly modified the existing travel related child custody order by requiring the plaintiff to accompany his minor child on any airline travel, except in the case of an emergency. Specifically, the plaintiff argues that (1) the court's order denying the defendant's motion for contempt constituted a modification because the existing travel related child custody order permitted the child's nanny or driver to accompany the child on air travel in lieu of the plaintiff not only in emergency circumstances, but also when the plaintiff had a health, work, or other family commitment, and (2) the alleged modification was improper because the court did not make findings that a substantial or material change had occurred, that the existing order was no longer in the child's best interests, or that the modification was in the child's best interests. We disagree that the court's order constituted a modification and, therefore, affirm the judgment of the trial court.
In its January 29, 2018 decision regarding a visitation order contained in the parties’ parenting plan, the trial court, Colin, J. , found the following relevant facts and procedural history. "The parties were divorced on April 26, 2017. At that time, the parties submitted an agreement on all matters including a parenting plan, except that they reserved certain issues for a future determination, including this: whether the parenting plan should require that a parent must accompany the minor child on any airline travel.
"This reserved issue was thereafter heard by [the] court and a decision was entered on June 21, 2017. The court ruled as follows: (1) Unless the parties otherwise agree in writing, a parent shall accompany the minor child on any airline travel; (2) Unless the parties otherwise agree in writing, any driver for the minor child must be at least twenty-one years of age; (3) Either parent may seek a modification of these orders after they first engage in good faith discussions regarding these issues with their coparenting coordinator."
At the time of this appeal, there are numerous other motions pending with the trial court, including (1) two postjudgment motions to modify the parenting plan filed by the plaintiff, (2) the defendant's postjudgment motion for contempt, and (3) the plaintiff's objection to the defendant's postjudgment motion for contempt. A hearing is currently scheduled on these matters for April 19, 2022.
The plaintiff filed a postjudgment amended motion for modification on December 11, 2017, requesting that the court modify the order "to permit the minor child to travel via airplane with the minor child's nanny, the driver, or any other adult with whom the child is comfortable as it is in the minor child's best interest." The parties, their counsel and the court-appointed guardian ad litem appeared in court on January 25, 2018, for an evidentiary hearing. After hearing testimony from numerous witnesses, the trial court granted the plaintiff's motion on January 29, 2018 (2018 order).
In the 2018 order, the court made the following findings of fact: "The [plaintiff], who resides primarily in Miami Beach, Florida (but who has many homes elsewhere, including in White Plains, New York), wants permission from the court to have his child's nanny and his driver/property manager fly with the child to and from the child's primary residence with his mother in Old Greenwich, Connecticut. The [plaintiff's] parenting time with his son is generally every other Friday at 5 p.m. until Sunday at 5 p.m. as well as holiday and vacation time. The court has reviewed the parties’ final parenting plan in general, and paragraph 2.2 (regular parenting schedule) in particular, and infers that the [plaintiff's] regular parenting time will usually take place in the vicinity of White Plains, New York. Thus, the number of times that the child is likely to travel to and from Florida will be limited. This is a reasonable inference since a three year old child should not be required to commute between Connecticut and Florida on alternating weekends and the court is confident that these two fine and caring parents feel the same way.
"The [defendant] objects to the [plaintiff's] request due to the child's age and her concerns about the difficulties that sometimes arise with air travel, such as diversions, delays, etc. She believes that a parent should be present if these travel difficulties occur. ... The [defendant's] concerns appear to be sincere and genuine. ...
"The [plaintiff's] position appears to be reasonable. He has an ear problem that is worsened during some air travel. This ear problem, as well as his work and other family commitments, may sometimes impact his ability to fly from Florida to Connecticut and back in a short time period. He has missed some parenting time as a result. His nanny and driver are both well known to the child. The child seems to enjoy spending time with them. The nanny, in particular, presented a very thorough and impressive description of how she plans for airline travel with the child. She has flown with the child (in the presence of the plaintiff and others) on private planes but never on commercial flights. It is clear that she knows how to properly care for the parties’ child and is able to handle the usual and customary travel related difficulties that sometimes arise. She appeared to be an extremely competent, experienced and caring childcare professional.
"The [guardian ad litem] supports the plaintiff's requests. The [guardian ad litem] had the opportunity to observe the child in the presence of the nanny and driver and described that interaction in very positive terms. ...
"The court finds that it is in the best interests of this child for his parent to accompany him on air travel, whenever possible, unless emergency circumstances arise that would cause the child to miss entirely his alternate weekend parenting time with the plaintiff. Since the parties generally reside so far from each other, it is important to this very young child for the [plaintiff's] parenting time to be regular and consistent. Thus, if work, family or health related circumstances arise such that the [plaintiff] is unable to accompany the child at all times via air travel, then the nanny and driver who testified in court are reasonable substitutes to step in, on an emergency and limited basis only , to accompany the child to/from Florida. The court expects that these circumstances would be infrequent . "It cannot be reasonably disputed that flexibility and trust is an important part of cooperative coparenting, and that principle is particularly important in this case when the parents live far apart from each other. The [plaintiff's] choice of the individuals who can handle the air travel appears to be quite reasonable and the [defendant] should trust his ability to make that decision during his parenting time in the limited circumstances contemplated by this decision (health, work or other family related emergency or commitment)." (Emphasis added.)
The court then issued the following orders: "(1) The current orders shall remain in effect until the child is age three. (2) Upon the child attaining age three, in the event that the [plaintiff] is unable to travel by air with the child for his weekend or holiday parenting time due to a health/work/other family emergency or commitment, then he shall immediately so notify the [defendant] in writing and by phone of the circumstances and who will be traveling with the child except that the choices shall be limited to the nanny and driver who testified in court. As previously noted, this should not be a regular and consistent occurrence since the plaintiff generally spends his weekend parenting time in the northeast and travel to/from Florida with the child does not appear to be a regular occurrence. It seems unlikely that these types of emergencies or commitments will frequently arise. To be clear, the first choice to travel by air with the child is a parent —the [defendant's] position in this regard is well founded. In the event that the [plaintiff] is not able to be with the child during the air travel, then he shall instruct the nanny and/or driver (one of whom must accompany the child during air travel in the [plaintiff's] absence) to keep the [defendant] reasonably informed of the child's whereabouts at all times, including keeping her informed of any delays, diversions and upon arrival. It should be noted that the [defendant] is certainly free to accompany the child during air travel if she so desires." (Emphasis added.)
On June 8, 2018, the defendant filed a postjudgment motion for contempt claiming that the plaintiff had violated the 2018 order. On June 12, 2019, the defendant amended her motion for contempt, and claimed, inter alia, that the plaintiff had violated the 2018 order on five separate occasions over the course of one year, three of which occurred over a period of three months. Specifically, the defendant claimed that the plaintiff failed to accompany the child on airline travel on May 28, 2018 (Memorial Day weekend), on June 17, 2018 (Father's Day weekend), on August 4, 2018, and on January 27 and March 31, 2019. The court, Truglia, J. , held an evidentiary hearing on the defendant's amended motion for contempt on June 28 and July 5, 2019. After the hearing, on July 5, 2019, the court entered an order denying the defendant's motion for contempt (2019 order), which is the subject of this appeal. The order provides: "After an evidentiary hearing, the court does not find that the defendant has carried her burden of proof by clear and convincing evidence that the plaintiff has wilfully violated a clear order of the court.
"The defendant has carried her burden of proof by clear and convincing evidence that the plaintiff has violated clear orders of this court regarding visitation. The court's [2018 order] states unambiguously that the [the plaintiff] will accompany the child on airline flights, not the nanny or driver, unless he is unable ‘due to a health/work/other family emergency.’ There was no emergency and therefore no exception over the 2018 Memorial Day weekend, or the 2018 Father's Day weekend. Similarly, there was no emergency for the August 3 [through] August 10, 2018 parenting time or for the regularly scheduled January 25 [through January] 27, 2019 parenting time. The defendant correctly points out that the court's order clearly contemplates that the child flying without a parent should be a rare occurrence in emergency situations only. It is also clear that the plaintiff's time with the child is generally scheduled well in advance.
"The court cannot find, however, the plaintiff intentionally and wilfully violated the court's orders. The plaintiff appears to have acted on advice of his own counsel and the court-appointed guardian ad litem. The court cannot find, therefore, that the plaintiff intentionally violate[d] a clear court order without sufficient justification or excuse.
"The motion is denied.
"The court does not find the plaintiff in contempt.
"The plaintiff is ordered, however, to abide strictly with the court's orders henceforth requiring him to be the person who travels by air with the child except in the case of emergency, not his convenience ." (Emphasis added.)
The plaintiff then filed a postjudgment motion to reargue, claiming that the 2019 order effectively modified the 2018 order. The defendant objected to the plaintiff's motion to reargue. The court held a hearing on the motion on September 23, 2019, and denied the motion on the same day. This appeal followed.
On appeal, the plaintiff claims that the court's 2019 order, in which it denied the defendant's motion for contempt but ordered the plaintiff to be the person travelling with the child by air except "in cases of emergency, and not his convenience," constituted an improper modification, and not a clarification, of the 2018 order. Specifically, the plaintiff argues that the 2018 order permitted the child's nanny or driver to accompany the child on air travel in the plaintiff's stead not only in emergencies, but also whenever the plaintiff had a health, work, or other family commitment. The plaintiff further contends that the 2019 order constitutes a modification because it requires him to accompany his minor child on any airline travel, except in the case of emergency, eliminating the exception he was provided in the 2018 order for health, work, or other family commitments. We disagree.
Because we conclude that the 2019 order did not constitute an improper modification of the 2018 order, we do not address the plaintiff's additional claims.
We begin our analysis by setting forth the relevant standard of review and 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 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. ... [T]o conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did. ... Appellate review of a trial court's findings of fact is governed by the clearly erroneous standard of review." (Internal quotation marks omitted.) Clark v. Clark , 150 Conn. App. 551, 568, 91 A.3d 944 (2014). We are mindful, however, that the construction of an order or judgment of the court is a question of law over which our review is plenary. See Perry v. Perry , 130 Conn. App. 720, 724, 24 A.3d 1269 (2011) ("[b]ecause [t]he construction of [an order or] judgment is a question of law for the court ... our review ... is plenary" (internal quotation marks omitted)). "As a general rule, [orders and] judgments are to be construed in the same fashion as other written instruments. ... The determinative factor is the intention of the court as gathered from all parts of the [order or] judgment. ... The interpretation of [an order or a ] judgment may involve the circumstances surrounding [its ] making .... Effect must be given to that which is clearly implied as well as to that which is expressed. ... The [order or] judgment should admit of a consistent construction as a whole." (Emphasis added; internal quotation marks omitted.) Id.
To resolve the plaintiff's claim, we must determine, as an initial matter, whether the 2019 order constituted a modification or a clarification of the 2018 order. General Statutes § 46b-56 governs the modification of child custody orders. Subsection (b) of § 46b-56 provides in relevant part: "In making or modifying any order as provided in subsection (a) of this section, the rights and responsibilities of both parents shall be considered and the court shall enter orders accordingly that serve the best interests of the child ...." This court has recognized that, "[a]fter the final decree, [our Supreme] [C]ourt has limited the broad discretion given the trial court to modify custody orders under ... § 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." (Citations omitted.) Hall v. Hall , 186 Conn. 118, 122, 439 A.2d 447 (1982).
To determine if the court's 2019 order was a clarification of the 2018 order, rather than an alteration or modification, we begin by "examining the definitions of both alteration and clarification. An alteration is defined as [a] change of a thing from one form or state to another; making a thing different from what it was without destroying its identity. ... An alteration is an act done upon the instrument by which its meaning or language is changed. If what is written upon or erased from the instrument has no tendency to produce this result, or to mislead any person, it is not an alteration. ... Similarly, a modification is defined as [a] change; an alteration or amendment which introduces new elements into the details or cancels some of them, but leaves the general purpose and effect of the subject-matter intact. ... Conversely, to clarify something means to free it from confusion. ... Thus, the purpose of a clarification is to take a prior statement, decision or order and make it easier to understand ." (Citations omitted; emphasis added; internal quotation marks omitted.) Perry v. Perry , supra, 130 Conn. App. at 725–26, 24 A.3d 1269. On the basis of our thorough review of the record and the language and context of the orders, we conclude that the court clarified, rather than modified, the 2018 order.
First, we examine the terms of the 2018 order, which provides in relevant part: "Upon the child attaining age three, in the event that the [plaintiff] is unable to travel by air with the child for his weekend or holiday parenting time due to a health/work/other family emergency or commitment, then he shall immediately so notify the [defendant] in writing and by phone of the circumstances and who will be traveling with the child except that the choices shall be limited to the nanny and driver who testified in court. As previously noted, this should not be a regular and consistent occurrence since the plaintiff generally spends his weekend parenting time in the northeast and travel to/from Florida with the child does not appear to be a regular occurrence. It seems unlikely that these types of emergencies or commitments will frequently arise." On appeal, the plaintiff claims that this language provided an exception not only for emergencies, but also for any health, work, or family commitments. We do not agree.
We acknowledge that, viewed in isolation, the terms in the 2018 order are ambiguous, specifically with respect to the meaning of the term "commitment" relative to the "health, work or other family emergency" language that precedes it. Our precedent nonetheless instructs that, when ambiguity exists in a postdissolution order, clarification is appropriate so long as there is no substantive change to the original order. See Almeida v. Almeida , 190 Conn. App. 760, 767, 213 A.3d 28 (2019) ("[m]otions for clarification ... may be appropriate where there is an ambiguous term in a judgment or decision ... but, not where the movant's request would cause a substantive change in the existing decision" (internal quotation marks omitted)). As this court has explained, "[i]n order to determine whether the trial court properly clarified ambiguity in the judgment or impermissibly modified or altered the substantive terms of the judgment, we must first construe the trial court's judgment. ... In construing a trial court's judgment, [t]he determinative factor is the intention of the court as gathered from all parts of the judgment .... The interpretation of a judgment may involve the circumstances surrounding the making of the judgment. ... Effect must be given to that which is clearly implied as well as to that which is expressed. ... The judgment should admit of a consistent construction as a whole." (Emphasis added; internal quotation marks omitted.) Id., at 766, 213 A.3d 28.
Indeed, we note that, although the court did not find that the plaintiff wilfully violated this order, it nevertheless found that the plaintiff did, in fact, violate the terms of the 2018 order. The plaintiff has not challenged the propriety of that determination on appeal. Moreover, the determination that the plaintiff violated the terms of the 2018 order was made following a full evidentiary hearing that required, in addition to evidence of the plaintiff's conduct, a determination of the proper meaning of the terms of the 2018 order by the court, which, in turn, required the court to clarify the parameters of the visitation order in question.
Accordingly, this court is obligated to consider the intention of the court, as gathered from all parts of the 2018 order as well as the circumstances surrounding its enactment. Such review convinces us that the trial court intended to provide a very limited exception to the general rule that a parent was to accompany the minor child on any airline travel. In the 2018 order, the court repeatedly emphasized that the exception was available only on a limited basis in emergency circumstances. To construe the isolated language in question from the 2018 order to grant the plaintiff an exception for any work, health, or family commitment, as the plaintiff urges, simply cannot be reconciled with the plain language of the 2018 order as a whole, which expressly provides that the exception was available "on an emergency and limited basis only" and that such circumstances "would be infrequent." An exception that expanded the range of work, health, or family commitments to include those that are not emergency in nature would not be a "limited" exception; rather it would subsume the general requirement set forth in the 2018 order of parent supervised child air travel. As the court observed at the hearing on the plaintiff's motion to reargue, the plaintiff "always has a commitment. ... [H]e's a busy guy. ... [The plaintiff's construction of the language in question] makes the language of Judge Colin's order completely meaningless." We therefore conclude that the 2018 order did not provide a broad exception for any work, health, or family commitment, but rather one for emergencies that may occur in limited circumstances.
Next, we turn to the terms of the 2019 order to determine what effect it had on the court's 2018 order. The plaintiff claims that the 2019 order constituted a modification of the 2018 order because it eliminated the exception for "situations involving a health, work, or other family commitment" by requiring the plaintiff to be "the person who travels by air with the child except in the case of emergency, not his convenience." We disagree. Having construed the 2018 order as providing the plaintiff with a very limited exception for emergency situations, we conclude that the 2019 order was not a modification. In the 2019 order, the intention of the court was to clarify the scope of the exception created in the 2018 order. This is especially evident given the testimony and exhibits presented at the 2019 hearing that led the court to iterate that the plaintiff must not act based on his "convenience" but must adhere strictly to the terms of the order. For example, the plaintiff testified, concerning airline travel on Memorial Day weekend of 2018, that "I did not want to fly back and forth on the same day and then have a meeting in the—I think it was in the morning on the Tuesday." When questioned about the airline travel on August 4, 2018, the plaintiff did not answer in detail and stated, "I'm sure I complied with the order. I'm sure I had a business meeting or a family issue, and I'm sure I notified [the defendant] of that ...." He responded similarly with regard to the January 27, 2019 airline travel, stating, "I'm sure on Monday I had work a work commitment or multiple work commitments." Further, with respect to the March 31, 2019 airline travel, the following colloquy took place:
"[The Defendant's Counsel]: With respect to spring break 2019, do you recall when you selected that spring break vacation?
"[The Plaintiff]: No.
"[The Defendant's Counsel]: Was it months in advance?
"[The Plaintiff]: Yes.
"[The Defendant's Counsel]: And [your child] was scheduled to return on a Sunday, wasn't he?
"[The Plaintiff]: It sounds right.
"[The Defendant's Counsel]: But you had a work commitment on Monday. "[The Plaintiff]: Okay.
"[The Defendant's Counsel]: That's not Sunday. The transition day and the work commitment are two different dates. Do you agree with that?
"[The Plaintiff]: The transition and the work day are two different dates, yes. "[The Defendant's Counsel]: Yes. They don't fall on the same day. They don't conflict."
The transcript of the 2019 hearing demonstrates that, despite the clear mandate of the court's 2018 order, the plaintiff did not understand the limited nature of the visitation order contained therein. It therefore was incumbent upon the court to provide him with a clarification of the terms of that order and explain that the terms of the 2018 order did not permit the plaintiff to act based on mere "convenience," particularly given the context of a contempt proceeding in which the court had found a violation of the 2018 order.
Accordingly, we conclude that the 2019 order was not a modification because it did not alter the meaning or substantive terms of the 2018 order. See Almeida v. Almeida , supra, 190 Conn. App. at 766, 213 A.3d 28. Both orders, when construed in their entirety and considering all relevant circumstances surrounding their making, contemplate that the exception to parent supervised child air travel would apply only in the limited case of an emergency. The 2019 order made clear that the exception contained in the 2018 order was available to the plaintiff only "in the case of emergency, not his convenience" and did not broadly apply to all types of health, work, or other family commitments. In light of the foregoing, we reject the plaintiff's contention that the 2019 order constituted an improper modification of the 2018 visitation order.
The judgment is affirmed.
In this opinion ELGO, J., concurred.
DEVLIN, J., dissenting. The appeal in this case arises from the trial court's denial of the motion for contempt filed by the defendant, Stacey Tannenbaum. In her motion for contempt, the defendant asserted that, on five occasions over a period of approximately one year, the plaintiff, Leonard Tannenbaum, did not personally accompany the parties’ minor child on air travel between Connecticut and Florida due to work commitments. At the time that the contempt motion was filed, the operative parenting time order was the January 29, 2018 order entered by the court, Colin, J . On July 5, 2019, the court, Truglia, J ., denied the defendant's motion for contempt after finding that, although the plaintiff had violated Judge Colin's order, such violation was not wilful. The order further provided: "The plaintiff is ordered, however, to abide strictly with the court's orders henceforth requiring him to be the person who travels by air with the child except in the case of emergency, not his convenience." It is from this order that the plaintiff appeals.
The majority aptly summarizes the procedural history of the parenting time orders issued by Judges Colin and Truglia, as well as the details of Judge Colin's January 29, 2018 order. I agree that the construction of the two orders are questions of law for the court and that our standard of review is plenary. I also agree that in determining whether Judge Truglia's 2019 order constituted a modification or a clarification of Judge Colin's 2018 order, it is appropriate to examine the practical effect of one order on the other. In that regard, I also agree that "[t]he determinative factor is the intention of the court as gathered from all parts of the [order or] judgment. ... Effect must be given to that which is clearly implied as well as to that which is expressed. ... The [order or] judgment should admit of a consistent construction as a whole." (Internal quotation marks omitted.) Lawrence v. Cords , 165 Conn. App. 473, 485, 139 A.3d 778, cert. denied, 322 Conn. 907, 140 A.3d 221 (2016).
In his 2018 order, Judge Colin found that it was "in the best interests of this child for his parent to accompany him on air travel, whenever possible, unless emergency circumstances arise that would cause the child to miss entirely his alternate weekend parenting time with the plaintiff." The majority accurately emphasizes the "emergency circumstances" language in the finding. Likewise, the majority emphasizes that portion of Judge Colin's order finding that the "nanny or driver who testified in court are reasonable substitutes to step in, on an emergency and limited basis only, to accompany the child to/from Florida."
On the basis of these findings, the majority concludes that the exception allowing the nanny or the driver to accompany the child applied only in emergency circumstances and that Judge Truglia's 2019 order simply made that clear. Considering Judge Colin's 2018 order as a whole, however, I see it as allowing accompaniment by the nanny or the driver in circumstances beyond emergencies. There is a thread through Judge Colin's findings and his ultimate order demonstrating the court's intention to foster the development of a father/son relationship between the plaintiff and his child. The court observed that the original order resulted in the plaintiff missing some parenting time. The court further noted the importance to the young child of regular and consistent parenting time with his father. At the conclusion of its findings, the court emphasized the importance of flexibility and trust in a coparenting relationship and encouraged the defendant to trust the plaintiff to make the decision to have the nanny or the driver substitute for him during his parenting time "in the limited circumstances contemplated by this decision (health, work or other family related emergency or commitment)." Likewise, the actual order entered by the court provides: "[I]n the event that the [plaintiff] is unable to travel by air with the child for his weekend or holiday parenting time due to a health/work/other family emergency or commitment , then he shall immediately so notify the [defendant] in writing and by phone of the circumstances and who will be traveling with the child .... It seems unlikely that these types of emergencies or commitments will frequently arise." (Emphasis added.)
That order provides in relevant part that, "[u]nless the parties otherwise agree in writing, a parent shall accompany the minor child on any airline travel."
The majority construes Judge Truglia's 2019 order as a clarification of Judge Colin's 2018 order, concluding: "[T]he 2018 order did not provide a broad exception for any work, health or family commitment, but rather one for emergencies which may occur in limited circumstances." This construction seems to me to be at odds with the actual language of Judge Colin's order, the parties’ understanding of that order, and, most importantly, the best interest of the minor child. Accordingly, I respectfully dissent.
In examining Judge Colin's 2018 order, a reasonable first step is to look at the meaning of the words that he used in his order, namely, "emergency" and "commitment." "Emergency" is defined as "an unforeseen combination of circumstances or the resulting state that calls for immediate action"; Merriam-Webster's Collegiate Dictionary (11th Ed. 2003) p. 407; while "commitment" is defined as "an agreement or pledge to do something in the future." Id., p. 250. Therefore, emergencies are unforeseen and require immediate action whereas commitments are promises of future conduct. The terms describe entirely different types of situations, and Judge Colin provided for both in his order.
In his motion to modify, the plaintiff sought unfettered ability to have the child's nanny or his driver accompany the child on air travel. Judge Colin's order did not go that far, but, as written, it was not limited only to emergencies. As previously discussed, the order clearly contemplated an exception, albeit to be invoked infrequently, for commitments as well. Judge Truglia conflated these two separate exceptions in his order, in which he states: "[Judge Colin's order] states unambiguously that the [plaintiff] will accompany the child on airline flights, not the nanny or driver, unless he is unable to ‘due to a health/work/other family emergency.’ There was no emergency and therefore no exception over [the dates listed in the contempt motion]." By limiting the exception to emergencies only, Judge Truglia failed to consider the alternative exception for designated commitments that is plainly part of the order. Based on the defendant's motion for contempt, it is evident that the parties understood Judge Colin's order as applying to nonemergency situations. The defendant's motion repeatedly makes reference to various instances in which the plaintiff asserted a "work conflict" or "work commitment" as a reason not to accompany the child on air travel. The defendant's assertion, and basis for the motion for contempt, was not that these instances did not qualify as emergencies but, rather, that these work conflicts were either (1) not on Sunday travel days, or (2) related to parenting time scheduled months in advance. This interpretation was in accord with the language of the order that provided for a commitment exception, as previously discussed. Moreover, this interpretation was shared by both the plaintiff's lawyer and the court-appointed guardian ad litem who, as noted by Judge Truglia, advised the plaintiff that his conduct was in compliance with Judge Colin's order.
Our Supreme Court has observed that "a modification is defined as [a] change; an alteration or amendment which introduces new elements into the details, or cancels some of them, but leaves the general purpose and effect of the subject-matter intact. ... Conversely, to clarify something means to free it from confusion. ... Thus, the purpose of a clarification is to take a prior statement, decision or order and make it easier to understand. Motions for clarification, therefore, may be appropriate where there is an ambiguous term in a judgment or decision ... but, not where the movant's request would cause a substantive change in the existing decision." (Citations omitted; internal quotation marks omitted.) In re Haley B. , 262 Conn. 406, 413, 815 A.2d 113 (2003).
By restricting the exception to emergencies only, Judge Truglia cancelled the commitment aspect of the order. This was a substantive change and a modification of Judge Colin's order. It was not a clarification. As the majority emphasizes, clarification is appropriate when there is an ambiguous term in a judgment or decision. See id. Indeed, the case cited by the majority, Perry v. Perry , 130 Conn. App. 720, 24 A.3d 1269 (2011), is just such a case. In Perry , the parties had agreed that the father would have visitation with the minor children every other weekend, but, due to a scrivener's error, the judgment provided that the father would have visitation every weekend. Id., at 722, 24 A.3d 1269. When the error was brought to the attention of the trial court, the judgment was clarified to reflect every other weekend visitation. Id., at 723, 24 A.3d 1269. On appeal, this court noted the ambiguities in the judgment and rejected the father's claim that the clarification was, in fact, an improper modification. Id., at 726–27, 24 A.3d 1269. Likewise, in Bauer v. Bauer , 308 Conn. 124, 126, 60 A.3d 950 (2013), the parties had agreed to split equally the defendant's pension. In its memorandum of decision, however, the trial court did not enter any orders regarding the pension. Id., at 127, 60 A.3d 950. Our Supreme Court ruled that a subsequent order requiring the defendant to split his pension with the plaintiff constituted a clarification of the judgment, as opposed to a modification. Id., at 129, 60 A.3d 950.
On the other hand, where a subsequent order causes a substantive change in an earlier order, such subsequent order modifies rather than clarifies the earlier order. See Perry v. Perry , supra, 130 Conn. App. at 726, 24 A.3d 1269 ; see also In re Haley B. , supra, 262 Conn. at 414, 815 A.2d 113 (holding that trial court's ruling decreasing visitation from once per week to once per month constituted modification of original decision); Almeida v. Almeida , 190 Conn. App. 760, 768, 213 A.3d 28 (2019) (holding that trial court's order expanding defendant's obligation regarding property transfer from quitclaiming his interest to taking steps to ensure that plaintiff acquired 100 percent interest in property amounted to improper modification of marital dissolution judgment).
Judge Colin's 2018 order provided the plaintiff with the ability, under certain nonemergency conditions, to have the child's nanny or his driver accompany the minor child on air travel. Judge Truglia's order took that away, and, in so doing, Judge Truglia modified Judge Colin's order. Construed as a modification, Judge Truglia's order was improper because it contained no findings as to the best interests of the minor child. It is well established that in ruling on a motion to modify visitation, "the trial court shall be guided by the best interests of the child ...." (Internal quotation marks omitted.) Balaska v. Balaska , 130 Conn. App. 510, 515–16, 25 A.3d 680 (2011) ; see Stahl v. Bayliss , 98 Conn. App. 63, 68, 907 A.2d 139 ("[i]t is statutorily incumbent upon a court entering orders concerning ... visitation or a modification of such order to be guided by the best interests of the child" (internal quotation marks omitted)), cert. denied, 280 Conn. 945, 912 A.2d 477 (2006) ; see also Kelly v. Kelly , 54 Conn. App. 50, 57, 732 A.2d 808 (1999) (holding that trial court improperly granted motion to modify visitation without hearing and evidence concerning children's best interests).
I agree that the plaintiff pushed the limits of Judge Colin's 2018 order—possibly beyond its intended scope. Nevertheless, if, following the hearing on the defendant's contempt motion, Judge Truglia had ordered that only commitments on travel days counted as an exception, that would have constituted a clarification. Judge Truglia's ruling, however, went much further and eliminated the commitment exception entirely. This, in my view, constitutes a modification.
In the present case, the trial court made no findings regarding the best interests of the child, nor did it receive any evidence from the guardian ad litem. This is significant because the more restrictive order entered by Judge Truglia may or may not be in the child's best interests. The majority notes the comment by Judge Truglia that, given the plaintiff's responsibilities, to construe Judge Colin's order as including commitments would render his order completely meaningless. In my view, to address his concern regarding the "commitment" language in the order, Judge Truglia should have advised the parties that he was considering modifying the order and conducted a hearing at which the parties and guardian ad litem could testify, and, after which, the court could make findings as to what was in the best interests of the child. It is not inconceivable that, following such a hearing, the judge might be persuaded that the "commitment" exception did not render Judge Colin's order meaningless, but, rather, represented the judge's effort to foster a meaningful and nurturing relationship between this young boy and his busy father who lives 1300 miles away.
Because such a hearing did not take place, I respectfully dissent.