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Clougherty v. Clougherty

Court of Appeals of Connecticut

February 9, 2016


Argued November 18, 2015

Appeal from Superior Court, judicial district of New London, Regional Family Trial Docket at Middletown, Gordon, J. [dissolution judgment]; Adelman, J. [motion to modify custody, motion for counsel fees].

William H. Cashman, for the appellant-appellee (defendant).

Kenneth J. McDonnell, for the appellee-appellant (plaintiff).

Paige S. Quilliam, guardian ad litem, for the minor child.

Lavine, Beach and Mihalakos, Js.



The defendant, Kevin Clougherty, appeals from the judgment of the trial court denying his postdis-solution motion to modify the court’s custody order regarding the parties’ minor child. The defendant claims that the trial court abused its discretion by denying his motion to modify physical custody. The plaintiff, Leticia Clougherty, cross appeals from the judgment of the trial court denying her motion for additional attorney’s fees. We affirm the judgment of the trial court.

The following undisputed facts found by the court, and procedural history, are relevant to this appeal. The parties were married in Texas in 2003. Originally, the plaintiff was from Texas, and the defendant was from Massachusetts. They moved to Connecticut in 2004 because the defendant had a job opportunity in this state. The plaintiff worked for her family’s business, Aztec Roofing and Sheet Metal Corporation (Aztec Roofing), in Houston, Texas, and continued to do so when the parties moved to Connecticut. She traveled back and forth to Houston on a regular basis during the marriage. Her travel became a major issue between her and the defendant. The couple had a son in 2006. By June, 2008, the marriage had broken down irretrievably, and the plaintiff commenced an action for dissolution of marriage. The plaintiff wanted to return to Houston with the child because of her family and employment ties to Texas, but the defendant wanted the child to remain in Connecticut.

The court, Gordon, J., granted the judgment of dissolution on December 15, 2009. As this court recounted in a previous appeal in this case: ‘‘The court also awarded the parties joint legal custody and shared physical custody of their child. In doing so, the court observed that living in Connecticut had made the plaintiff physically and emotionally ill because her life was completely integrated in Texas, where she enjoyed ‘a rich and wonderful life.’ The court found that the plaintiff lacked a job or any significant ties in Connecticut, and had not thrived living away from her family of origin and the family business, which provided her with the identity that she needed. In discussing where the child primarily would reside, the court determined that the plaintiff was ‘doing a little bit better of a job as a parent’ than the defendant at that time but not in any great qualitative sense. The court expressed concern over the child’s ‘failure to thrive’ during the disintegration of the parties’ relationship. The court also observed that the child had a close relationship with the plaintiff’s large, extended family in Texas, which resulted in his experiencing a richer and more vivacious life there than in Connecticut. The court, therefore, concluded that itwas in the child’s best interest to allow the plaintiff to return to Texas with the child. Accordingly, the court ordered the parties to maintain two residences for the child, one in Texas with the plaintiff and the other in Connecticut with the defendant, and it set forth a visitation schedule for the defendant.’’ Clougherty v. Clougherty, 131 Conn.App. 270, 271–72, 26 A.3d 704, cert. denied, 302 Conn. 948, 31 A.3d 383 (2011).

‘‘[T]he defendant filed (1) a motion seeking to have a supplemental examination of the plaintiff and her family in Texas, (2) a motion to clarify the judgment with respect to various terms of the visitation schedule, and (3) a motion to open the judgment.’’ Id., 272. Judge Gordon denied all of the motions, and the defendant appealed claiming that the trial court erred in allowing the plaintiff to relocate to Texas with the child. Id. This court affirmed the judgment.

A little more than five months later, on February 23, 2012, the defendant filed the motion for modification of custody at issue in the present appeal, claiming that there had been a material change in circumstances and that it was in the best interests of the child to modify the custody order. On July 12, 2012, the court, Shluger, J., ruled on a number of motions filed by the plaintiff. Judge Shluger awarded her $15, 000 in attorney’s fees to defend the defendant’s motion for modification of custody. On December 12, 2013, the plaintiff moved for additional attorney’s fees, stating that she had exhausted the initial award of $15, 000. She filed an affidavit of attorney’s fees on April 14, 2014, seeking an additional $22, 003.87.

The court, Adelman, J., held a hearing on the defendant’s motion for modification and the plaintiff’s motion for additional attorney’s fees on April 9 through April 11, 2014. The court heard testimony from both parties, a friend and former coworker of the defendant in Texas, and the guardian ad litem, Attorney Susan Perrin Geenty.[1] The parties presented evidence, including copies of numerous e-mail and text messages between them, and a written psychological evaluation prepared by Keith Roeder, doctor of psychology, in June, 2013, that updated Roeder’s initial psychological evaluation completed in 2009. The court issued a memorandum of decision on May 5, 2014, finding that there was no material change in circumstances warranting a change of physical custody, and therefore denied the defendant’s motion to modify custody. The court also denied the ...

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