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Lugo v. Lugo

Court of Appeals of Connecticut

September 5, 2017

WILLIAM LUGO
v.
TERESA LUGO

          Argued April 17

          Derek V. Oatis, for the appellant (defendant).

          Campbell D. Barrett, with whom were Johanna S. Katz and, on the brief, Jon T. Kukucka, for the appellee (plaintiff).

          Mullins, Beach and Harper, Js.

         Syllabus

         The defendant, whose marriage to the plaintiff previously had been dissolved, appealed to this court from the judgment of the trial court granting the plaintiff's postjudgment motion for modification of the parenting plan concerning the parties' minor child as set forth in the parties' separation agreement, which had been incorporated into the dissolution judgment. Under the separation agreement, the parties shared joint legal and physical custody of the child with a shared parenting plan. The plaintiff sought a modification of the parental access orders to allow him to have additional time with the child. Prior to a hearing on the motion for modification, the plaintiff filed his compliance with trial management orders, in which he requested sole custody of the minor child, and the trial court denied, inert alia, the defendant's motion in limine, in which she sought to preclude the admission of evidence on the issue of a change in custody. Following a hearing on the motion for modification, which was held on three days over a period of three months, the trial court awarded the plaintiff sole legal custody of the minor child. On appeal, the defendant claimed, inter alia, that the trial court improperly awarded sole custody to the plaintiff when the plaintiff failed specifically to include a claim for sole legal custody in his motion for modification, as required by the applicable rule of practice (§ 25-26), and, thus, that she lacked adequate notice that a change in legal custody was contemplated. Held that the trial court did not err in granting the plaintiff sole legal custody of the parties' minor child; although the plaintiff's motion for modification did not specifically request the relief of sole legal custody, the record showed that the defendant had notice that custody issues would be raised at the hearing, as the motion specifically requested a broader role for the plaintiff and the defendant had at least several months to prepare for the hearing on the motion for modification following the denial of her motion in limine concerning the issue of a change in custody, and because the defendant failed to provide this court with the transcripts of the three day hearing on the motion for modification, this court was unable to find an abuse of discretion by the trial court or to determine that the defendant was harmed by any degree of curtailed notice.

         Procedural History

         Action for the dissolution of a marriage, and for other relief, brought to the Superior Court in the judicial district of Hartford, and tried to the court, M. Taylor, J.; judgment dissolving the marriage and granting certain other relief in accordance with the parties' agreement; thereafter, the court, Ficeto, J., granted the plaintiff's motion for modification, and the defendant appealed to this court. Affirmed.

          OPINION

          BEACH, J.

         The defendant, Teresa Lugo, appeals from the trial court's judgment granting the postdissolution motion for modification filed by the plaintiff, William Lugo. On appeal, the defendant claims that the court erred in (1) granting the plaintiff's motion for modification by awarding the plaintiff sole legal custody of the minor child, and (2) denying her motion in limine seeking to prevent consideration of the question of sole legal custody. We affirm the judgment of the trial court.

         The following facts and procedural history are relevant. The parties were married on July 12, 2003. They have one minor child. In 2008, the plaintiff filed for a divorce. On August 10, 2010, the court, M. Taylor, J., rendered a judgment of dissolution that incorporated by reference a separation agreement entered into by the parties. The separation agreement provided that ‘‘[t]he parties shall have joint legal and shared physical custody of the minor child with a shared parenting plan for their child.''

         On April 10, 2014, the plaintiff filed a motion for modification in which he noted that the parties had joint legal and shared custody of the minor child and had a specific parenting schedule. He stated that ‘‘the current orders are not in the best interest of the minor child. The plaintiff respectfully requests that the court modify the parenting plan by altering the parties' parenting time to allow more time with the plaintiff father.'' The defendant requested that the court ‘‘modify the parental access orders to allow additional time with the plaintiff father, and such other and further relief as the court deems equitable.''

         A hearing on the motion was scheduled for September 3, 2015. On August 24, 2015, the plaintiff filed his compliance with trial management orders; in his compliance, he requested sole custody of the minor child. On August 26, 2015, the guardian ad litem for the minor child, Margaret Bozek, filed her proposed orders, which included a recommendation that the parties continue to have joint legal custody of the minor child, but that the plaintiff have final decision-making authority if the parties could not agree after consultation. In her August 31, 2015 proposed orders, the defendant requested that the parties continue to have joint legal custody of the minor child.

         The hearing on the plaintiff's motion for modification was held on three days, September 3, October 8 and November 12, 2015. On the first day of the hearing, the defendant filed a motion in limine seeking to preclude the admission of evidence on the issue of a change in custody of the minor child. The record reflects that the court, Ficeto, J., denied the defendant's motion on September 3, 2015. We do not know what reasoning was stated for the denial of the motion in limine because we do not have a transcript of the hearing. On September 15, 2015, the defendant filed a motion for a continuance of the next hearing, then scheduled for September 21, because she needed more time to obtain information from the minor ...


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