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Baronio v. Stubbs

Court of Appeals of Connecticut

December 19, 2017

PASCAL BARONIO
v.
DONNA M. STUBBS ET AL.

          Submitted on briefs October 12, 2017

          Albert J. Oneto IV filed a brief for the appellant (named defendant).

          Christopher M. Hansen filed a brief for the appellee (plaintiff).

          Alvord, Prescott and Beach, Js.

          OPINION

          ALVORD, J.

         The defendant, Donna Stubbs, appeals from the judgment of the trial court awarding her and the plaintiff, Pascal Baronio, joint legal custody of their minor child. On appeal, the defendant claims that the court: (1) ‘‘erred in presuming that shared physical custody was in the child's best interest where there was not an agreement by the defendant to an award of joint legal custody within the meaning of General Statutes § 46b-56a (b)''; and (2) ‘‘committed plain error by stating during pendente lite proceedings that it wanted to see an increase in the plaintiff's parenting time, and by indicating before it heard all the evidence at trial that it was inclined to award joint legal custody to the plaintiff.'' We affirm the judgment of the trial court.

         The following facts and procedural history are relevant to our decision. The parties were involved in a relationship for approximately thirteen years and have one child together. The parties lived together until October, 2014, when the plaintiff moved out. The plaintiff filed an application for joint custody on December 1, 2014. The defendant filed an objection to the plaintiff's application on December 11, and an application for emergency ex parte order of custody on December 16. The court scheduled a hearing on January 8, 2015. On that date, the parties agreed upon a temporary parenting plan, which was made an order of the court. The parents' agreement permitted the plaintiff to see their child every Sunday from 9 a.m. to 6 p.m., to have telephone contact daily, and to see their child at school. On January 14, 2015, the plaintiff filed a motion for appointment of a guardian ad litem, which the court granted.

         On February 11, 2015, the parties appeared before the court, Goodrow, J. The court heard testimony from both parties regarding, inter alia, the plaintiff's request for additional parenting time. The court found that it was in the best interest of their child to have overnights with the plaintiff, and ordered that the plaintiff have parenting time on alternating weekends from 10 a.m. on Saturday until 4 p.m. on Sunday. The parties were ordered to report back to the court on March 3, 2015, to address any concerns. On that date, the parents entered into a further agreement, and were again ordered to report back on March 31, 2015. On March 31, the plaintiff made a request for additional parenting time. Specifically, he requested parenting time with their child through Monday morning to bring their child to school on those weekends that he had overnight parenting time. Counsel for the defendant objected to the request as did the guardian ad litem, Attorney David Crow, citing the child's adjustment to a new environment in the plaintiff's home. The court denied the plaintiff's request without prejudice, ordered the parties to return in two weeks, and ordered the guardian ad litem to provide a report on that date. On April 14, 2015, the guardian ad litem recommended that the plaintiff's parenting time be increased to include Sunday night through Monday morning. The parents entered into an agreement, which the court adopted, that included this additional parenting time.

         The parties next appeared before the court on September 11, 2015, for a contested hearing on the plaintiff's application for joint custody. The plaintiff filed with the court proposed orders in which he requested joint legal and shared physical custody. The defendant did not file proposed orders with the court. In addition to the testimony of the plaintiff and the defendant, the court also heard testimony from Susan Falato, an art therapist with Shoreline Wellness in West Haven, Cheryl Iannucci, a care coordinator for Beacon Health Options in Rocky Hill, Allyson Popel, the child's kindergarten teacher, and Attorney Crow. The court issued an oral decision on February 1, 2016, in which it ordered joint legal custody and shared physical custody, and further ordered the plaintiff's proposed parenting time. The parties subsequently agreed upon a parenting plan, which the court approved. This appeal followed.

         I

         We first address the defendant's claim that the court ‘‘misapplied the law governing awards of joint legal custody under General Statutes § 46b-56a.'' Specifically, she claims that the statute permits a presumption that joint custody is in the best interests of the child only if the parties have agreed to an award of joint custody. She claims that ‘‘the record was insufficient to support a finding that the defendant agreed to share joint legal custody'' with the plaintiff, and thus, ‘‘there was no legal basis upon which the family court could presume, as it did, that shared physical custody was in the child's best interests.'' We disagree.

         The following additional facts are relevant to this claim. On September 11, 2015, at the start of the contested hearing on custody, the plaintiff provided the court with proposed orders in which he requested joint legal and shared physical custody. Specifically, the plaintiff sought a biweekly custodial plan, pursuant to which he would have parenting time with their child from 10 a.m. Saturday through Wednesday morning on week one, and from 6 p.m. Sunday through Wednesday morning on week two. The defendant did not submit proposed orders to the court. When the court therefore inquired as to what the defendant was requesting, her counsel stated that ‘‘the status quo should be maintained. The present orders should be maintained.'' The court then inquired as to whether the defendant was objecting to joint legal custody, and her counsel replied that she was not.

         During the testimony of Attorney Crow on the final day of the hearing, the court inquired as to whether he had ‘‘a recommendation as to custody, whether it should be joint or sole.'' Attorney Crow responded that he wanted to see joint legal custody, to which the court responded: ‘‘I do, too. Here's my concern, they don't seem to be able to communicate.'' Attorney Crow then expressed his opinion that the parties, despite a number of minor issues on both sides, had been working together. At the conclusion of evidence, the court heard argument from both parties. The court specifically requested that the parties address what they were asking the court to order and the statutory factors the court has to consider. The following colloquy occurred between the court, Attorney Christopher Hansen for the plaintiff, and Attorney Joseph DePaola for the defendant:

‘‘The Court: [A]s I understand it, Attorney Hansen, you're asking for joint legal custody with a split fifty/ fifty time split. Is that correct?
‘‘[The Plaintiff's Counsel]: Not in-Judge, we are asking for shared physical, but it's actually about fifty-five/ forty-five, the fifty-five being with the mother.
‘‘The Court: All right. That's based on your last- what you put on the record when we began.
‘‘[The Plaintiff's Counsel]: Yes. And it's . . . in the proposed orders, Your Honor.
‘‘The Court: And, Attorney DePaola, what is it, specifically, that you're asking for?
‘‘[The Defendant's Counsel]: I'm asking for the current order to remain in effect, taking into account the [guardian ad litem's (GAL)] suggestion that an additional evening be inserted.
‘‘The Court: And joint legal custody?
‘‘[The Defendant's Counsel]: Joint legal custody, primary physical residence with my client, final decision making authority with my client, and the current order is to remain in effect except for that extra day during the week that was suggested by Mr. Crow.
‘‘The Court: How does the court entertain a join- your-you're-I infer you're also requesting joint ...

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