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Firstenberg v. Madigan

Court of Appeals of Connecticut

March 26, 2019


          Argued December 3, 2018

         Procedural History

         Action for custody of the parties' minor child, brought to the Superior Court in the judicial district of Fairfield, where the court, Sommer, J., rendered judgment granting the parties joint legal custody of the minor child in accordance with the parties' agreement; thereafter, the court denied the motion to intervene filed by the minor child's maternal grandfather, and the maternal grandfather appealed to this court. Improper form of judgment; judgment directed.

          Eric Firstenberg, self-represented, the appellant (maternal grandfather).

          David A. McGrath, with whom was Carla Zahner, for the appellee (defendant).

          Alvord, Bright and Norcott, Js.


          NORCOTT, J.

         This appeal stems from a custody action between the plaintiff, Olivia Anna Firstenberg, and the defendant, Matthew C. Madigan, regarding their minor child. The appellant, Eric Firstenberg (appellant), the child's maternal grandfather, appeals from the judgment of the trial court denying his motion to intervene in the custody action under General Statutes § 46b-57.[1]On appeal, the appellant raises a number of claims, including that the court improperly interpreted his motion seeking visitation pursuant to General Statutes § 46b-59[2] as a motion to intervene seeking custody. We conclude that even if we assume, arguendo, that the appellant's motion to intervene was in fact a petition for visitation, as the appellant contends, he has failed to satisfy the threshold jurisdictional requirements under § 46b-59. Accordingly, we reverse the judgment of the court and remand the case with direction to dismiss the petition for visitation for lack of subject matter jurisdiction.

         The following facts are relevant on appeal. The plaintiff and the defendant are the unmarried parents of a child born in July, 2011. The plaintiff filed a custody application in October, 2013. Throughout the pendency of the litigation the appellant filed numerous motions to intervene. On June 24, 2015, the plaintiff and the defendant, at the time the only parties to the custody action, entered into a parenting access agreement regarding the custody of their minor child. After this agreement was reached, the appellant, on August 27, 2015, filed the operative motion to intervene wherein he allegedly sought visitation pursuant to § 46b-59.[3]

         The August 27, 2015 motion focused largely on the past conduct of the defendant, as the appellant sought to put the fitness of the defendant as a parent at issue. Of the appellant's eleven page motion, only three sentences mention the nature of the appellant's relationship with the minor child. First, when recounting an outburst of the minor child toward the appellant after the minor child returned from a visit with the defendant, the appellant stated, ‘‘I have a loving relationship with my grandson-his behavior toward me was out of character and alarming.'' The only other references in the appellant's motion pertaining to his relationship with his grandson were the statements, ‘‘I am the proud father of [the plaintiff] and the adoring, maternal grandfather of [the minor child], '' and ‘‘I love my daughter and grandson to infinity and beyond.'' The motion contained not a single allegation regarding any harm the minor child would suffer if the appellant's request for visitation was denied. Additionally, the relief requested in the motion focused solely on the defendant. Specifically, the appellant requested that ‘‘(1) [his] motion to intervene be granted as it is in the best interest of the minor child . . . (2) [the] defendant be held in con- tempt for deliberately and wilfully committing fraud on the court in connection with the ex parte hearing; (3) as ordered by Judge Sommer, the parties' June 24, 2015 agreement be nullified as it is not in the best interest of the minor child . . . (4) [the defendant's attorney] be held in contempt for his failure to inform the court of the material misrepresentations he made to the court in connection with the ex parte proceeding; (5) further fact-finding take place to determine if [the] defendant tampered with the e-mail dated April 22, 2015; [and] (6) [the] defendant be ordered to receive ongoing psychiatric treatment with report backs to the court.'' Nowhere in the appellant's request for relief was visitation mentioned.

         The court heard argument on the appellant's motion at a hearing held on October 15, 2015, at which the plaintiff, the defendant, their respective attorneys, and the appellant were present. At the hearing, the court questioned the appellant as to why intervention should be granted when both parents were represented by counsel and had actively participated in the case. The gravamen of the appellant's argument was simply that ‘‘the Connecticut Supreme Court said if there [was] a claim that one of the parents [was] unfit, the standard of review would be different [than articulated in Roth v. Weston, 259 Conn. 202, 789 A.2d 431 (2002).]'' No evidence was presented at the hearing.

         On February 26, 2016, the appellant filed a motion seeking to have his motion to intervene reassigned to another judge because the court had not issued a decision on the underlying matter within 120 days as required by Practice Book § 11-19 (b) and the parties had not agreed to waive the time limit. The court, on March 1, 2016, issued an order granting the appellant's motion to intervene, finding that he had ‘‘satisfied the requirements of [§] 46b-59 (b) by clear and convincing evidence that a parent-like relationship exists and denial of visitation would cause harm to the child.''

         The defendant subsequently filed a motion to reargue in which he claimed that the court had not applied § 46b-59 properly because the order contained a finding of ‘‘harm'' instead of ‘‘real and significant harm'' as required under the statute. The court granted the motion to reargue and issued a memorandum of decision in which it vacated its prior order and denied the appellant's motion to intervene. Although the basis for the defendant's motion to reargue was that the court had applied the wrong standard for harm under § 46b-59, the court denied the motion to intervene under a custody analysis pursuant to § 46b-57.[4]

         On appeal the appellant raises numerous arguments pertaining to the court's granting of the defendant's motion to reargue and its resultant denial of the appellant's motion to intervene.Of particular relevance to our analysis, the appellant argues that the court incorrectly considered his motion to intervene as seeking custody pursuant to § 46b-57, when he was actually seeking visitation under § 46b-59. In response, the defendant argues that if the appellant's motion is treated as a petition for visitation, then it should have been ...

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