J. Y. v. M. R.

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J. Y. v. M. R.*
(AC 44312)
Elgo, Moll and Suarez, Js.

Syllabus

The defendant mother appealed to this court from the trial court’s adjudica-
tion of several postjudgment motions for modification of custody and
visitation orders relating to the parties’ minor child and its issuance of
additional orders related to the same. After the plaintiff father filed a
custody application, the trial court approved an agreement between the
parties, who had never been married, which provided that they would
share joint legal custody of the child, with the child’s primary residence
being with the mother, and set forth a parenting schedule. Approximately
one year later, the father filed a postjudgment motion to modify,
requesting an increase in overnight visits and that his residence be
designated as the child’s primary residence for school purposes. There-
after, the parties executed stipulation agreements revising the parenting
schedule, which the trial court approved. The mother then filed a post-
judgment motion for modification, seeking to impose certain restrictions
on the father’s parenting time. The trial court heard evidentiary hearings
on the parties’ motions for modification. Thereafter, it filed interim
orders indicating, inter alia, that the parties would continue to share
joint legal and physical custody of the child and were required to comply
with the applicable rule of practice (§ 25-26 (g)) in filing any future
motions for modification. A few months later, in response to health
concerns relating to the COVID-19 pandemic, the mother filed an applica-
tion for an emergency ex parte order of custody, along with a second
postjudgment motion for modification, which requested that the court
temporarily deny the father visitation. The trial court declined to award
ex parte relief but ordered a hearing to be held on the application
and the motion. That hearing was postponed and never rescheduled.
Thereafter, the trial court denied the mother’s second modification
motion and issued final orders relating to the parties’ initial modification
motions, which incorporated the interim orders. The final orders pro-
vided, inter alia, that the parties would continue to share joint legal and
physical custody of the child, with the father’s residence serving as the
child’s primary residence for school purposes and required the parties
to file a request for leave pursuant to Practice Book § 25-26 (g), in the
event that they wished to modify the final orders. The mother appealed
and, after being granted leave by the trial court, filed two additional
postjudgment motions for modification, seeking to modify the final
orders with respect to the parenting schedule and the child’s primary
residence for school purposes. Following a hearing, the trial court denied
the mother’s additional modification motions, and the mother amended
her appeal to encompass that denial. Held:
1. The trial court did not commit error in issuing the interim orders or the
final orders:
a. The defendant mother’s claim that the trial court improperly issued
interim orders was moot: the interim orders ceased to exist after they
were subsumed by the final orders, and, accordingly, there was no practi-
cal relief that the trial court could afford the mother with respect to the
interim orders; moreover, the ‘‘capable of repetition, yet evading review’’
exception to the mootness doctrine did not apply because the mother
failed to demonstrate that there was a reasonable likelihood that the
issue presented would arise again in the future.
b. The defendant mother’s claim that the trial court committed error in
issuing the final orders was unavailing: in issuing the final orders, the
court considered the child’s best interests as required by the applicable
statute ((Rev. to 2019) § 46b-56), and such orders were not fatally flawed
merely because they incorporated the interim orders, which the mother
argued were defective; moreover, the mother’s alternative argument that,
even if it is assumed that the interim orders properly modified the prior
custody and visitation orders, the trial court applied the wrong legal
standard in issuing the final orders was unavailing, as, at the time of
issuance, the court plainly stated that the interim orders were temporary
in nature and that final orders disposing of the initial orders were forth-
coming, and, accordingly, the interim orders did not constitute prior court
orders that required a material change in circumstances for modification;
furthermore, the mother failed to establish that the trial court abused
its discretion in transferring the child’s primary residence for school
purposes from the mother to the plaintiff father because, in issuing its
orders, the court did not engage in speculation but, rather, properly
considered the child’s best interests, and its determination was supported
by the guardian ad litem’s testimony and was reasonable despite the
amount of time between the issuance of the order and the start of the
child’s schooling in light of the history of extensive litigation between
the parties; additionally, the mother failed to demonstrate that the trial
court abused its discretion in issuing the order pursuant to Practice
Book § 25-26 (g), requiring the parties to seek leave of the court before
filing motions for modification of the final orders for a period of five
years because the order applied to both parties, the parties had filed
numerous modification motions following the initial judgment, and the
guardian ad litem had testified in favor of the order, considering it to
be appropriate in light of the length of the litigation, the financial and
emotional toll it was taking on the parties, and her belief that the child
had been affected by the distress the litigation caused to the parties.
2. The trial court did not err in denying the defendant mother’s two modifica-
tion motions filed after the issuance of the final orders: that court applied
the correct legal standard in denying the two modification motions,
as it properly determined that there had been no material change in
circumstances since the date the final orders were issued, and, in arguing
that exigent circumstances, including the COVID-19 pandemic, war-
ranted the court’s consideration of circumstances prior to the issuance
of the final orders, the mother was essentially attempting to use her
motions to mount an improper collateral attack on the final orders;
moreover, the mother’s alternative argument, that the trial court improp-
erly determined that she had failed to demonstrate that a material change
in circumstances had occurred since the issuance of the final orders,
was unavailing because the court was free to credit or reject all or part
of the conflicting testimony regarding such change in circumstances
that was presented by the parties.
3. The defendant mother’s claim that the trial court improperly had denied
her second modification motion, which she had filed between the issu-
ance of the interim orders and the final orders, was moot: the only
practical relief this court could have afforded the mother was a remand
to the trial court with direction to conduct an evidentiary hearing, which
would have been superfluous because the mother’s second modification
motion raised the same issues that were encompassed by one of the
modification motions she filed after the issuance of the final orders,
and the trial court conducted an evidentiary hearing on that motion,
giving the mother the opportunity to be heard and to submit evidence
as to those issues; accordingly, the mother already had received the
relief that she was seeking.
Argued March 7—officially released October 11, 2022

Procedural History

Application for custody as to the parties’ minor child,
brought to the Superior Court in the judicial district of
Waterbury and transferred to the judicial district of New
Haven, where the court, Klatt, J., rendered judgment
in accordance with the parties’ custody and parenting
agreement; thereafter, the plaintiff filed a motion for
modification; subsequently, the court, Klau, J., issued
an order modifying the judgment in accordance with
the parties’ agreement; thereafter, the defendant filed
a motion for modification; subsequently, the court,
Klau, J., issued interim orders pending the issuance of
final orders on the parties’ respective pending motions
for modification; thereafter, the court, Price-Boreland,
J., ordered that a hearing be held with respect to an
application for ex parte relief and a second motion for
modification filed by the defendant; subsequently, the
court, Klau, J., issued final orders disposing of the
plaintiff’s motion for modification and the defendant’s
initial motion for modification and denied the defen-
dant’s second motion for modification, and the defen-
dant appealed to this court; thereafter, after being
granted leave by the court, Goodrow, J., the defendant
filed two additional motions for modification, which
the court, Price-Boreland, J., denied, and the defendant
filed an amended appeal. Appeal dismissed in part;
affirmed.
Samuel V. Schoonmaker IV, for the appellant (defen-
dant).
James J. Healy, for the appellee (plaintiff).
Opinion

MOLL, J. In this custody dispute, the defendant, M.
R., appeals from the decisions of the trial court adjudi-
cating several postjudgment motions for modification
of custody and visitation orders. On appeal, the defen-
dant claims that the court improperly (1) issued interim
orders pending its issuance of final orders vis-à-vis two
motions for modification filed in 2018 and 2019, respec-
tively, (2) issued final orders disposing of the two afore-
said motions for modification, (3) denied two motions
for modification that she filed in 2021, following the
issuance of the final orders, and (4) denied a motion
for modification that she filed in 2020, in between the
issuance of the interim orders and the final orders.1 We
dismiss, as moot, the portions of the appeal challenging
the propriety of the interim orders and the denial of
the defendant’s motion for modification filed in 2020,
and we affirm the remainder of the trial court’s deci-
sions.
The following facts and procedural history are rele-
vant to our resolution of this appeal. The plaintiff, J.
Y., and the defendant, who never married, have a minor
child who was born in April, 2016. In January, 2017, the
plaintiff filed a custody application, requesting joint
legal custody of the child and that the child’s primary
residence be with him. On September 29, 2017, the
parties executed a custody and parenting agreement.
The agreement provided, inter alia, that the parties
would share joint legal custody of the child, with the
child’s primary residence being with the defendant, and
set forth a parenting schedule. Pursuant to the parenting
schedule, the child would have seven overnight visits
with the plaintiff over the course of a recurrent four
week schedule. The agreement further provided that,
‘‘[u]nless or until the [defendant] relocates to another
school district, the [t]own of Cheshire shall be consid-
ered the child’s primary town of residence for school
purposes.’’ The same day, the trial court, Klatt, J.,
approved the agreement and incorporated its terms into
the court’s judgment rendered that day.
On October 17, 2018, the plaintiff filed a postjudgment
motion to modify the September 29, 2017 judgment,
requesting, inter alia, an increase in the number of the
child’s overnight visits with him from seven to fourteen
and that his residence be designated as the child’s pri-
mary residence for school purposes. On January 16,
2019, the parties executed a stipulation agreeing, inter
alia, to a revised parenting schedule, which increased
the number of the child’s overnight visits with the plain-
tiff from seven to eight. On January 23, 2019, the court,
Tindill, J., approved the stipulation. On September 18,
2019, the parties executed an agreement further modi-
fying the parenting schedule, increasing the number of
the child’s overnight visits with the plaintiff from eight
to ten. The court, Klau, J., approved the agreement on
the same day. On November 25, 2019, the defendant
filed a postjudgment motion for modification, seeking,
inter alia, to impose certain limitations and restrictions
with respect to the plaintiff’s parenting time.
In December, 2019, the court held three evidentiary
hearings on the parties’ respective October 17, 2018 and
November 25, 2019 motions for modification (initial
modification motions). On January 7, 2020, the defen-
dant filed a motion to continue the evidentiary hearings
for personal medical reasons. On January 9, 2020, the
court ordered that a telephonic conference would be
held on January 13, 2020, to address the motion for
continuance. The court further ordered the parties’ trial
counsel to ‘‘be prepared to discuss whether a continu-
ance should be contingent upon the court entering a
temporary order adopting [a] proposed parenting
schedule [submitted by the plaintiff].’’ The plaintiff’s
proposed parenting schedule increased the number of
the child’s overnight visits with him from ten to four-
teen.
On January 13, 2020, during the telephonic confer-
ence, the court granted the defendant’s motion for con-
tinuance and reserved its decision as to whether it
would issue an interim order. The same day, the defen-
dant filed a memorandum in opposition to the court
issuing an interim order. On January 29, 2020, the plain-
tiff filed a motion for order requesting that the court
adopt his proposed parenting schedule on a temporary
basis. On February 6, 2020, the court held one additional
evidentiary hearing on the initial modification motions,2
and the parties’ trial counsel presented closing argu-
ments on February 13, 2020. Both parties submitted
proposed orders. The plaintiff requested, inter alia, sole
legal and physical custody, with the child attending
school in the town in which he resided, which, at all
relevant times, was Southington. The defendant sought,
inter alia, joint legal custody, with the child’s primary
residence being with her and the child attending kinder-
garten in Cheshire, where the defendant lived.
On February 26, 2020, citing Yontef v. Yontef, 185
Conn. 275, 440 A.2d 899 (1981), the court issued interim
orders (interim orders) pending the issuance of final
orders on the initial modification motions.3 The interim
orders provided that (1) the parties continued to share
joint legal custody of the child, (2) effective immedi-
ately, the parties were to share physical custody of
the child in accordance with the plaintiff’s proposed
parenting schedule, (3) the parties were required to
comply with Practice Book § 25-26 (g) in filing any
future motions for modification, and (4) all prior cus-
tody and visitation orders ‘‘not inconsistent’’ with the
temporary orders remained in full force and effect.4
On May 8, 2020, the defendant filed an application
for an emergency ex parte order of custody, seeking
temporary custody of the child with no visitation
allowed for the plaintiff. The defendant averred that,
during the plaintiff’s parenting time, the child was being
left with third parties and the plaintiff was not following
the then current guidelines set forth by the Centers
for Disease Control and Prevention with regard to the
nascent COVID-19 pandemic. Concurrently with the
application for ex parte relief, the defendant filed a
postjudgment motion for modification, requesting that
the court temporarily deny the plaintiff visitation (May
8, 2020 modification motion).5 The same day, the court,
Price-Boreland, J., declined to award ex parte relief
but ordered that a hearing would be held on June 5,
2020, as to the application and the May 8, 2020 modifica-
tion motion. Thereafter, the June 5, 2020 hearing was
postponed and never rescheduled. On September 1,
2020, without conducting a hearing, the court, Klau, J.,
denied the May 8, 2020 modification motion.
On September 1, 2020, the court issued a memoran-
dum of decision that resolved the initial modification
motions.6 The court stated that, in addition to issuing
related orders, it was incorporating the interim orders
into its final orders disposing of the initial modification
motions (final orders). The court ordered in relevant
part that (1) the parties shared joint legal and physical
custody of the child, with the plaintiff’s residence serv-
ing as the child’s primary residence for school purposes,
(2) the plaintiff’s proposed parenting schedule was
adopted and approved, (3) any party seeking to modify
the new custody and visitation orders within five years
was required to file a request for leave pursuant to
Practice Book § 25-26 (g), and (4) the new custody
and visitation orders superseded ‘‘all prior inconsistent
orders,’’ whereas ‘‘[p]rior orders not inconsistent’’ with
the new orders remained in full force and effect. On
September 18, 2020, the defendant filed a motion to
reargue, which the court denied on the same day.7 On
October 6, 2020, the defendant filed this appeal.8
On March 30, 2021, after being granted leave by the
court, Goodrow, J., in accordance with Practice Book
§ 25-26 (g) and the final orders, the defendant filed
two postjudgment motions for modification, seeking to
modify the final orders as to (1) the parties’ parenting
schedule and (2) the child’s primary residence for
school purposes (March 30, 2021 modification
motions).9 On April 22, 2021, the plaintiff filed objec-
tions. On August 11, 2021, following an evidentiary hear-
ing, the court, Price-Boreland, J., denied the March 30,
2021 modification motions. On August 30, 2021, the
defendant filed a motion for reconsideration and reargu-
ment, which the court denied on September 1, 2021.
The defendant subsequently amended her appeal to
encompass the court’s denials of the March 30, 2021
modification motions.10 Additional facts and procedural
history will be set forth as necessary.
Before addressing the defendant’s claims, we set
forth the following relevant legal principles. ‘‘General
Statutes § 46b-56 provides trial courts with the statutory
authority to modify an order of custody or visitation.
General Statutes (Rev. to 2019) § 46b-56 (c) directs the
court, when making or modifying any order regarding
the custody, care, education, visitation and support of
children, to consider the best interests of the child, and
in doing so [the court] may consider, but shall not be
limited to, one or more of [sixteen enumerated] factors11
. . . . The court is not required to assign any weight
to any of the factors that it considers . . . .’’ (Footnote
in original; internal quotation marks omitted.) Dolan
v. Dolan, 211 Conn. App. 390, 398–99, 272 A.3d 768,
cert. denied, 343 Conn. 924, 275 A.3d 626 (2022).
Before modifying a custody order, ‘‘a court must sat-
isfy two requirements. First, modification of a custody
award must be based upon either a material change
[in] 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. . . . Second, the
court shall consider the best interests of the child and
in doing so may consider several factors. . . . Before
a court may modify a custody order, it must find that
there has been a material change in circumstances since
the prior order of the court, but the ultimate test is the
best interests of the child. . . . These requirements are
based on the interest in finality of judgments . . . and
the family’s need for stability.’’ (Footnotes omitted;
internal quotation marks omitted.) Petrov v. Gueorguieva,
167 Conn. App. 505, 511–12, 146 A.3d 26 (2016); see also
Cleveland v. Cleveland, 161 Conn. 452, 459–60, 289 A.2d
909 (1971) (material changes in circumstances require-
ment was developed, in part, ‘‘to give effect to the principle
of res judicata’’). ‘‘The burden of proving a change to be
in the best interest of the child rests on the party seeking
the change.’’ (Internal quotation marks omitted.) Petrov
v. Gueorguieva, supra, 512. ‘‘The power of the trial court
to modify the existing order does not . . . include the
power to retry issues already decided . . . or to allow
the parties to use a motion to modify as an appeal. . . .
Rather, the trial court’s discretion includes only the power
to adapt the order to some distinct and definite change
in the circumstances or conditions of the parties. . . .
[I]ts inquiry is necessarily confined to a comparison
between the current conditions and the last court order.’’
(Citations omitted.) Borkowski v. Borkowski, 228 Conn.
729, 738, 638 A.2d 1060 (1994).
In considering whether to modify visitation orders, as
opposed to custody orders, a court ‘‘is not required to
find as a threshold matter that a change in circumstances
has occurred. . . . Instead, [i]n modifying an order con-
cerning visitation, the trial court shall be guided by the
best interests of the child . . . .’’ (Citations omitted; foot-
note omitted; internal quotation marks omitted.) Balaska
v. Balaska, 130 Conn. App. 510, 515–16, 25 A.3d 680 (2011).
‘‘Our standard of review of a trial court’s decision
regarding custody [and] visitation . . . orders is one of
abuse of discretion. . . . [T]he authority to exercise the
judicial discretion [authorized by § 46b-56] . . . is not
conferred [on] this court, but [on] the trial court, and . . .
we are not privileged to usurp that authority or to substi-
tute ourselves for the trial court. . . . A mere difference
of opinion or judgment cannot justify our intervention.
Nothing short of a conviction that the action of the trial
court is one [that] discloses a clear abuse of discretion
can warrant our interference. . . .
‘‘The trial court has the opportunity to view the parties
[firsthand] and is therefore in the best position to assess
the circumstances surrounding a dissolution action, in
which such personal factors as the demeanor and attitude
of the parties are so significant. . . . [E]very reasonable
presumption should be given in favor of the correctness
of [the trial court’s] action. . . . We are limited in our
review to determining whether the trial court abused its
broad discretion to award custody based upon the best
interests of the child as reasonably supported by the evi-
dence.’’ (Citations omitted; internal quotation marks omit-
ted.) Dolan v. Dolan, supra, 211 Conn. App. 399–400. ‘‘Our
deferential standard of review, however, does not extend
to the court’s interpretation of and application of the law
to the facts. It is axiomatic that a matter of law is entitled
to plenary review on appeal.’’ (Internal quotation marks
omitted.) Coleman v. Bembridge, 207 Conn. App. 28, 34,
263 A.3d 403 (2021).
I
We first address the defendant’s claims that, as to the
initial modification motions, the trial court committed
error in issuing (1) the interim orders and (2) the final
orders. We consider each claim in turn.
A
The defendant asserts that the court improperly issued
the interim orders pursuant to Yontef v. Yontef, supra,
185 Conn. 275.12 The defendant maintains that Yontef does
not authorize a court, postjudgment, to modify custody
and visitation orders on an interim basis without first
satisfying the statutory requirements of § 46b-56. In addi-
tion to addressing the merits of this claim, the plaintiff
argues that this claim is moot because the interim orders
were superseded by the final orders. We agree with the
plaintiff that the claim is moot.13
‘‘Mootness implicates [the] court’s subject matter juris-
diction and is thus a threshold matter for us to resolve.
. . . It is a well-settled general rule that the existence of
an actual controversy is an essential requisite to appellate
jurisdiction; it is not the province of appellate courts to
decide moot questions, disconnected from the granting
of actual relief or from the determination of which no
practical relief can follow. . . . Because mootness impli-
of law over which our review is plenary. . . . Mootness
presents a circumstance wherein the issue before the
court has been resolved or had lost its significance
because of a change in the condition or affairs between
the parties. . . . A case is moot when due to intervening
circumstances a controversy between the parties no
longer exists.’’ (Internal quotation marks omitted.) Barber
v. Barber, 193 Conn. App. 190, 220–21, 219 A.3d 378 (2019).
In the present case, the interim orders, issued on Febru-
ary 26, 2020, ceased to exist after they were subsumed
by the final orders issued on September 1, 2020. Thus,
we conclude that there is no practical relief that we may
afford the defendant vis-à-vis the interim orders, and,
therefore, her claim challenging the interim orders is
moot. See, e.g., Schult v. Schult, 40 Conn. App. 675, 692,
672 A.2d 959 (1996) (claim regarding temporary custody
order was moot when order merged with final dissolution
decree), aff’d, 241 Conn. 767, 699 A.2d 134 (1997).
The defendant argues that her claim is not moot
because, in incorporating the interim orders into the final
orders, the court ‘‘reiterat[ed]’’ the interim orders and
left them ‘‘largely unchanged.’’ As we have explained,
however, the interim orders became inoperative following
the issuance of the final orders. Insofar as the defendant
takes issue with the interim orders as integrated into the
final orders, her redress is to challenge the propriety of
the final orders. See part I B of this opinion.
The defendant further argues that, even if her claim is
moot, it is subject to appellate review under the ‘‘capable
of repetition, yet evading review’’ exception to the moot-
ness doctrine. We disagree.
‘‘[F]or an otherwise moot question to qualify for review
under the ‘capable of repetition, yet evading review’
exception, it must meet three requirements. First, the
challenged action, or the effect of the challenged action,
by its very nature must be of a limited duration so that
there is a strong likelihood that the substantial majority
of cases raising a question about its validity will become
moot before appellate litigation can be concluded. Sec-
ond, there must be a reasonable likelihood that the ques-
tion presented in the pending case will arise again in the
future, and that it will affect either the same complaining
party or a reasonably identifiable group for whom that
party can be said to act as surrogate. Third, the question
must have some public importance. Unless all three
requirements are met, the appeal must be dismissed as
moot.’’ Loisel v. Rowe, 233 Conn. 370, 382–83, 660 A.2d
323 (1995).
Focusing on the second prong of the exception, the
analysis ‘‘entails two separate inquiries: (1) whether the
question presented will recur at all; and (2) whether the
interests of the people likely to be affected by the question
presented are adequately represented in the current litiga-
tion. A requirement of the likelihood that a question will
recur is an integral component of the ‘capable of repeti-
tion, yet evading review’ doctrine. In the absence of the
possibility of such repetition, there would be no justifica-
tion for reaching the issue, as a decision would neither
provide relief in the present case nor prospectively resolve
cases anticipated in the future.’’ Id., 384. The second prong
‘‘does not provide an exception to the mootness doctrine
when it is merely possible that a question could recur,
but rather there must be a reasonable likelihood that the
question presented in the pending case will arise again
in the future . . . .’’ (Emphasis in original; internal quota-
tion marks omitted.) Russo v. Common Council, 80 Conn.
App. 100, 110, 832 A.2d 1227 (2003).
In arguing that the second prong of the exception is
satisfied in the present case, the defendant broadly asserts
that, ‘‘if allowed, family courts [in reliance on Yontef] will
render many more ‘interim’ modifications in this and other
custody cases . . . .’’ Although it is possible that this
issue will reoccur, the defendant has not demonstrated
that there is a reasonable likelihood that it will. Her con-
cern is purely speculative. See New Hartford v. Connecti-
cut Resources Recovery Authority, 291 Conn. 502, 510,
970 A.2d 578 (2009) (‘‘speculation and conjecture . . .
have no place in appellate review’’ (internal quotation
marks omitted)). Accordingly, we conclude that the ‘‘capa-
ble of repetition, yet evading review’’ exception does not
apply to enable us to review the defendant’s moot claim.
B
The defendant next claims that the court committed
error in issuing the final orders. The defendant raises four
contentions: (1) the final orders are ‘‘taint[ed]’’ because
they incorporate the allegedly flawed interim orders; (2)
assuming that the interim orders operated to modify the
prior custody and visitation orders, the court applied the
wrong legal standard in failing to consider the present
best interests of the child and whether circumstances had
changed since the issuance of the interim orders; (3)
the court abused its discretion in transferring the child’s
primary residence for school purposes from the defendant
to the plaintiff, and (4) the court abused its discretion in
ordering the parties, for a period of five years, to comply
with Practice Book § 25-26 (g) in filing motions to modify
the final orders. These contentions are unavailing.
1
The defendant’s first contention is that the final orders
are fatally flawed because they incorporate the interim
orders, which, as summarized in part I A of this opinion,
the defendant maintains were defective. The defendant
argues that the defects that plagued the interim orders
carried over into the final orders. We disagree.
Resolving the defendant’s claim requires us to construe
the final orders. ‘‘As we previously set forth in this opinion,
[o]ur deferential standard of review [in domestic relations
cases] . . . does not extend to the court’s interpretation
of and application of the law to the facts. It is axiomatic
that a matter of law is entitled to plenary review on appeal.
. . . Moreover, [t]he construction of [an order or] judg-
ment is a question of law for the court . . . [and] our
review . . . is plenary.’’ (Internal quotation marks omit-
ted.) Coleman v. Bembridge, supra, 207 Conn. App. 34.
In issuing the final orders, the court cited the statutory
factors delineated in General Statutes (Rev. to 2019) § 46b-
56 (c) and considered the child’s best interests. This analy-
sis applied to the final orders in toto, including the portion
of the final orders that assimilated the interim orders. In
other words, in incorporating the interim orders into the
final orders, the court considered the child’s best interests
as required by statute. Even if we assume arguendo that
the court committed a legal error in issuing the interim
orders, that error was not transferred to the final orders
simply by virtue of the fact that the final orders contain
the interim orders. Accordingly, we reject the defendant’s
argument.
2
The defendant’s second contention is that, assuming
that the interim orders functioned to modify the prior
custody and visitation orders, the court applied the wrong
legal standard in issuing the final orders because the court
neither considered whether there had been a material
change in circumstances since February 26, 2020, when
the court issued the interim orders, nor examined the
present best interests of the child. The crux of the defen-
dant’s argument is that the interim orders, when issued,
became the ‘‘prior court order[s]’’ for purposes of any
future modifications. The defendant asserts that, because
no evidentiary record was developed for the period
between the issuance of the interim orders and the final
orders, the court had no basis on which to issue the final
orders. We are not persuaded.
The question of whether the court applied the correct
legal standard is a question of law subject to plenary
review. See In re Paulo T., 213 Conn. App. 858, 867, 279
A.3d 766, cert. granted, 344 Conn. 904, A.3d (2022).
‘‘Before a court may modify a custody order, it must find
that there has been a material change in circumstances
since the prior order of the court, but the ultimate test is
the best interests of the child.’’ (Emphasis added; internal
quotation marks omitted.) Petrov v. Gueorguieva, supra,
167 Conn. App. 511–12. We disagree with the defendant’s
legal premise that, at the time that the final orders were
issued, the interim orders constituted the ‘‘prior court
order[s]’’ in effect. In issuing the interim orders, which
followed the close of evidence on the initial modification
motions, the court plainly stated that the interim orders
were temporary in nature and that final orders disposing
of the initial modification motions were forthcoming. We
cannot conclude that such temporary orders established
the starting point for the court’s modification analysis vis-
à-vis the final orders. Accordingly, the defendant’s argu-
ment fails.
3
The defendant’s third contention is that the court
abused its discretion in transferring the child’s primary
residence for school purposes from the defendant to the
plaintiff. The defendant argues that the modified school
residence order was not in the child’s best interests and
that the court speculated as to the suitability of the school
district in which the plaintiff lives, particularly given that
the child would not start attending kindergarten until the
fall of 2021. We disagree.
The following additional facts and procedural history
are relevant. The parties’ 2017 custody and parenting
agreement, as incorporated into the September 29, 2017
judgment, provided that, unless or until the defendant
relocated, the town of Cheshire was designated as the
child’s primary residence for school purposes. In their
respective proposed orders filed in connection with the
initial modification motions, the parties separately
requested that their respective residences be deemed as
the child’s primary residence and that the child attend
school in their respective towns.
During the evidentiary hearings held on the initial modi-
fication motions, the guardian ad litem for the minor
child testified that it was ‘‘appropriate’’ for the court to
designate the child’s primary residence for school pur-
poses in advance of the child attending kindergarten in
the fall of 2021 in light of, in part, the parties’ lengthy
litigation history. The guardian ad litem further testified
that deeming the plaintiff’s residence as the child’s pri-
mary residence for school purposes would be ‘‘appro-
priate’’ if the court was ‘‘concern[ed] about [his] position
in the child’s life’’ and wanted to ‘‘fortify that position a
little bit for him . . . .’’ Along those lines, the guardian
ad litem testified, inter alia, that she was ‘‘concerned that
[the defendant] doesn’t seem to value . . . [the plaintiff’s]
role as [the child’s] father,’’ was ‘‘concerned for [the
child’s] future relationship with [the plaintiff] if [the defen-
dant] cannot embrace in a way that [the child] can see
and feel the importance of [the plaintiff] in [the child’s]
life,’’ did not believe that the defendant was able to
‘‘acknowledge that . . . [the plaintiff] has redeemable
qualities as a parent,’’ and did not believe that the defen-
dant ‘‘[saw] the value to [the plaintiff’s] time with [the
child] . . . to the same degree that she values her own
time as a parent with [the child].’’
The guardian ad litem also offered testimony comparing
the Cheshire and Southington school districts. She testi-
fied that both towns had full day kindergarten programs
starting at approximately the same time and that, although
Cheshire’s school system ranked higher than South-
ington’s school system on the basis of a report that she
had reviewed, the data indicated that students from both
schools were scoring ‘‘very close’’ on various tests.14
After hearing the parties’ closing arguments on Febru-
ary 13, 2020, the court stated on the record that, ‘‘[g]iven
the history of the litigation between the parties, I do think
it is better, even at this point, rather than waiting to the
fall [of] 2021 when [the child] starts school, to make a
decision [as to the child’s primary residence for school
purposes] one way or the other. I really don’t want to
leave doors open that sort of invite issues in the future.
I think it needs to be decided, subject of course always
to the parties’ right to seek modifications, setting aside
the issue of the request [for] leave [requirement of Practice
Book § 25-26 (g)].’’
In the final orders, the court transferred the child’s
primary residence for school purposes from the defendant
to the plaintiff. Before issuing its orders, the court found
in relevant part that ‘‘[t]he parties’ relationship effectively
ended about ten months after their [child’s] birth in April,
2016. The [defendant] was, and still is, uncertain about
the role she wants the [plaintiff] to play in the child’s life.’’
The court further found that, although ‘‘the [defendant]
believes it is important for [the child] to have a father
figure in [the child’s] life, it is questionable whether she
believes that the [plaintiff] should play that role. Obvi-
ously, this leads to significant tensions in the parties’
ongoing relationship.’’
We conclude that the court, in transferring the child’s
primary residence for school purposes from the defendant
to the plaintiff, properly considered the child’s best inter-
ests and did not engage in speculation. Although the child
was not scheduled to begin kindergarten until the fall of
2021, approximately one year following the issuance of
the final orders, the court reasonably determined that
issuing the modified school residence order immediately
was proper ‘‘[g]iven the history of the litigation between
the parties’’ and to avoid ‘‘leav[ing] doors open that sort
of invite issues in the future.’’ This determination was
buttressed by the guardian ad litem’s testimony advocat-
ing for swift action on the school residence issue. More-
over, against the backdrop of the guardian ad litem’s
testimony that designating the plaintiff’s residence as the
child’s primary residence for school purposes would be
‘‘appropriate’’ if the court was ‘‘concern[ed] about [his]
position in the child’s life’’ and wanted to ‘‘fortify that
position a little bit for him,’’ the court found that the
defendant was ‘‘uncertain about the role she wants the
[plaintiff] to play in the child’s life’’ and that it was ‘‘ques-
tionable’’ whether the defendant believed that the plaintiff
should be a ‘‘father figure’’ for the child. Finally, the record
contained evidence indicating that the Southington and
Cheshire school systems, although not identical, were
comparable in educational quality.
In sum, we conclude that the defendant has not estab-
lished that the court abused its discretion in modifying
the prior custody orders by transferring the child’s primary
residence for school purposes from the defendant to the
plaintiff.
4
The defendant’s fourth contention is that the court
abused its discretion in ordering the parties, for a period
of five years, to seek leave of the court to file motions
for modification of the final orders in accordance with
Practice Book § 25-26 (g). The defendant maintains that
an order pursuant to § 25-26 (g) can be issued only in
cases presenting ‘‘ ‘extreme, compelling situation[s].’ ’’
The defendant argues that the court did not find that
the present matter constituted an ‘‘ ‘extreme, compelling
[situation]’ ’’ and that, even if it had, the record does not
support such a finding. We are not persuaded.
Practice Book § 25-26 ‘‘governs a litigant’s ability to file
a postdissolution motion for modification of a custody or
visitation order.’’ Morera v. Thurber, 162 Conn. App. 261,
269, 131 A.3d 1155 (2016). Section 25-26 (g) provides in
relevant part: ‘‘[U]pon or after entry of a judgment or final
order of custody and/or visitation . . . the judicial
authority may order that any further motion for modifica-
tion of a final custody or visitation order shall be appended
with a request for leave to file such motion . . . . The
specific factual and legal basis for the claimed modifica-
tion shall be sworn to by the moving party or other person
having personal knowledge of the facts recited therein.
If no objection to the request has been filed by any party
within ten days of the date of service of such request on
the other party, the request for leave may be determined
by the judicial authority with or without hearing. If an
objection is filed, the request shall be placed on the next
short calendar, unless the judicial authority otherwise
directs. At such hearing, the moving party must demon-
strate probable cause that grounds exist for the motion
to be granted. . . .’’
In proposing that a Practice Book § 25-26 (g) order may
be issued in ‘‘ ‘extreme, compelling situation[s]’ ’’ only,
the defendant cites several appellate cases addressing
either a trial court’s refusal to consider motions or a trial
court’s orders restricting a party’s ability to file motions.
See Ahneman v. Ahneman, 243 Conn. 471, 484–85, 706
A.2d 960 (1998) (recognizing that exceptions to general
rule that court must consider and decide ‘‘on a reasonably
prompt basis’’ all motions properly before it may exist in
‘‘extreme, compelling situation,’’ such as case involving
harassing or vexatious litigation, and concluding that
record did not support conclusion that circumstances
existed to justify court’s refusal to consider motions); see
also Ramin v. Ramin, 281 Conn. 324, 339, 915 A.2d 790
(2007) (quoting Ahneman in concluding that case did
not present ‘‘ ‘extreme and compelling circumstance’ ’’
supporting court’s refusal to consider motion); Eisenlohr
v. Eisenlohr, 135 Conn. App. 337, 346–48, 43 A.3d 694
(2012) (concluding that court did not abuse its discretion
in restricting defendant’s ability to file motions for modifi-
cation of custody and parenting access orders in light of
‘‘troubling facts’’ of case, including court’s findings that
defendant had failed to comply with prior court orders
and had engaged in ‘‘lengthy pattern of contemptuous
conduct’’); Strobel v. Strobel, 92 Conn. App. 662, 665, 886
A.2d 865 (2005) (order prohibiting parties from filing
motions or pleadings without prior approval was deemed
‘‘praiseworthy’’ when record reflected that parties had
filed ‘‘barrages of repetitive and abusive motions in an
apparently ceaseless war of hostility and vindictiveness
toward one another and that those motions are not only
abusive to the system but, more importantly, to their now
teenage son’’). We do not construe these cases as curbing
a court’s discretion to impose filing restrictions by limiting
such orders to cases with circumstances deemed to be
extreme and compelling. Indeed, neither Eisenlohr nor
Strobel, which were decided after Ahneman, cites Ahne-
man or instructs that orders imposing filing restrictions
are reserved for such cases. See Eisenlohr v. Eisenlohr,
supra, 346–48; Strobel v. Strobel, supra, 665.
We perceive no clear abuse of discretion underlying
the court’s inclusion of the Practice Book § 25-26 (g)
order, which applies to both parties, in the final orders.15
The parties’ child was nearly one and one-half years old
when the September 29, 2017 judgment was rendered,
and the child was four years old at the time of the final
orders. As the court stated in issuing the final orders, less
than one year following the September 29, 2017 judgment,
the parties began filing ‘‘[a] slew of . . . motions’’ con-
cerning the child. Moreover, during the evidentiary hear-
ings held on the initial modification motions, the guardian
ad litem for the minor child testified in favor of the court
issuing a § 25-26 (g) order, considering such an order to
be ‘‘an appropriate mechanism to use’’ in light of the
length of the litigation, the financial and emotional toll of
the litigation on the parties, and the guardian ad litem’s
belief that the child was ‘‘not unscathed by the distress
that [the parties] ha[d] gone through.’’ See Eisenlohr v.
Eisenlohr, supra, 135 Conn. App. 347 n.5 (in concluding
that trial court did not abuse its discretion in imposing
filing restrictions on defendant, this court cited guardian
ad litem’s testimony that case warranted imposition of
such order and that such order ‘‘ ‘would be best’ ’’ for
minor child).
‘‘An appellant who seeks to reverse the trial court’s
exercise of judicial discretion assumes a heavy burden.’’
(Internal quotation marks omitted.) Id., 347. We conclude
that the defendant has failed to demonstrate that the court
abused its discretion in issuing the Practice Book § 25-
26 (g) order.16
II
We next turn to the defendant’s claim that the trial
court improperly denied her March 30, 2021 modification
motions. The defendant asserts that the court (1) applied
the wrong legal standard in denying these motions or,
alternatively, (2) incorrectly determined that there had
not been a material change in circumstances since the
issuance of the final orders. We disagree.
The following additional facts and procedural history
are relevant. In the March 30, 2021 modification motions,
the defendant sought to modify the portions of the final
orders incorporating the plaintiff’s proposed parenting
schedule and designating the plaintiff’s residence as the
child’s primary residence for school purposes. As to the
parenting schedule, the defendant argued that (1) in adopt-
ing and approving the parenting schedule in the final
orders, the court had no evidence before it regarding the
COVID-19 pandemic, and (2) the plaintiff was unavailable
to spend sufficient time with the child, frequently leaving
the child with his girlfriend or family members during
his parenting time. As to the school residence order, the
defendant argued that (1) at the time it issued the final
orders, the court had no evidence before it regarding (a)
the suitability of the Southington school system or (b)
how the Cheshire and Southington school systems were
addressing the COVID-19 pandemic, and (2) the child was
developing strong ties with the town of Cheshire. In her
proposed orders filed in connection with the March 30,
2021 modification motions, the defendant requested that
the court, inter alia, (1) adopt a new parenting schedule
reducing the number of the child’s overnight visits with
the plaintiff, (2) order that the child would attend kinder-
garten in Cheshire, and (3) order that the parties would
continue to share joint legal custody, with the defendant’s
residence being designated as the child’s primary resi-
dence.
On August 11, 2021, the court, Price-Boreland, J., held
an evidentiary hearing on the March 30, 2021 modification
motions, during which the plaintiff and the defendant
testified. At the conclusion of the hearing, the court orally
denied the March 30, 2021 modification motions. The
same day, the court issued a written order stating that,
in denying the March 30, 2021 modification motions, it
determined that ‘‘there has been no material or substantial
change in circumstances since September 1, 2020, when
[the final orders were] entered.’’
A
The defendant first contends that the court applied
the wrong legal standard in denying her March 30, 2021
modification motions. The defendant maintains that the
court should have considered whether there had been a
material change in circumstances since February or
March, 2020,17 rather than September 1, 2020, when the
final orders were issued. We are not persuaded.
Whether the court applied the correct legal standard
is a question of law subject to plenary review. See In
re Paulo T., supra, 213 Conn. App. 867. The defendant
acknowledges the well established legal principles requir-
ing courts, when entertaining motions to modify custody,
to compare the current circumstances to those that
existed at the time of the prior court orders. See Petrov
v. Gueorguieva, supra, 167 Conn. App. 511–12. The defen-
dant posits, however, that the ‘‘exigent circumstances’’ of
this case require us to recognize an exception to the
settled rule governing modifications of custody orders
and to conclude that the court committed error by not
examining the circumstances that existed prior to the final
orders. The defendant cites ‘‘numerous impediments’’ that
arose between February, 2020, and September, 2020, that
deprived her of ‘‘an ‘adequate opportunity to litigate . . .
fully’’ the initial modification motions. These ‘‘impedi-
ments’’ include (1) emergency orders issued by the execu-
tive and judicial branches in response to the COVID-19
pandemic affecting court operations, (2) the court’s denial
on August 19, 2020, of a motion that she filed on March
16, 2020, seeking to open the evidence as to the initial
modification motions,18 and (3) the court’s failure to con-
duct an evidentiary hearing prior to denying her May 8,
2020 modification motion.19 The defendant further argues
that the evidentiary record vis-à-vis the final orders con-
tained no evidence regarding the effects of the COVID-
19 pandemic, such that, by not considering circumstances
that existed prior to the final orders, the court ‘‘forever
overlook[ed] seven of the most tumultuous months in the
history of parenting.’’
The defendant’s arguments are unavailing. In essence,
the defendant is attempting to use her March 30, 2021
modification motions to mount a collateral attack on the
final orders, which is a maneuver that cannot be counte-
nanced. See Borkowski v. Borkowski, supra, 228 Conn.
738 (‘‘[t]he power of the trial court to modify the existing
order does not . . . include the power to retry issues
already decided . . . or to allow the parties to use a
motion to modify as an appeal’’ (citation omitted)). The
March 30, 2021 modification motions sought to modify
portions of the final orders issued on September 1, 2020,
and the court, in accordance with the law, correctly com-
pared the current circumstances with those existing as of
September 1, 2020. Notwithstanding the unique conditions
created by the onset of the COVID-19 pandemic, it would
strain logic for us to conclude that, in deciding whether
to modify the final orders issued on September 1, 2020,
the court committed error by failing to analyze the circum-
stances that existed prior to September 1, 2020.
In sum, we conclude that the court applied the correct
legal standard in denying the March 30, 2021 modification
motions.
B
In the alternative, the defendant asserts that the court
improperly determined that she failed to demonstrate that
a material change in circumstances had occurred since
the issuance of the final orders. The defendant argues
that ‘‘[t]he record shows the onset of [the COVID-19]
pandemic, disputes over health and safety of the minor
child, school closings, and the parties using self-help
because existing orders were insufficient,’’ such that the
court could not reasonably have determined that there
had been no material change in circumstances. We dis-
agree.
The following additional facts and procedural history
are relevant. The defendant offered testimony during the
August 11, 2021 evidentiary hearing. As to the parties’
child, who was five years old at the time of the hearing,
the defendant testified that (1) the child was experiencing
difficulties with respect to transitions from the defen-
dant’s home to the plaintiff’s home, feeling ‘‘stressed,’’
‘‘upset,’’ and ‘‘traumatized’’ the day before the start of the
plaintiff’s parenting time and ‘‘beg[ging]’’ to stay home
with her, (2) the child was struggling to sleep at the
plaintiff’s home, (3) the plaintiff oftentimes left the child
with his girlfriend or others during his parenting time,
and (4) the plaintiff, who is employed as a firefighter and
a landscaper, had started working more hours, and the
defendant anticipated that, as a result of his increased
work schedule, the plaintiff would have future availability
issues, thereby creating inconsistencies in the parties’ par-
enting schedule. With respect to the school issue, the
defendant testified that (1) her research indicated that
Cheshire had a better school system than Southington,
(2) the child expressed a desire to attend school in Chesh-
ire, and (3) all of the child’s friends in Cheshire were
attending kindergarten in Cheshire. The defendant further
testified that the child participated in various extracurricu-
lar activities in Cheshire. With regard to the COVID-19
pandemic, the defendant testified that she was concerned
about the child’s well-being in light of potential disruptions
in the parties’ parenting schedule stemming from the pan-
demic, particularly if the child had to attend school part-
time or be subject to remote learning in the fall of 2021.
The defendant further testified that, during the pandemic,
while the plaintiff continued to work full-time, she worked
from home and watched the child when the child’s dayc-
are was closed.
The plaintiff, who also testified during the evidentiary
hearing, disputed most of the defendant’s testimony. He
testified that neither his career nor his work schedule
had changed since the issuance of the final orders. He
further testified that he never left the child with strangers
and that, although on occasion his sisters watched the
child if he had to ‘‘run out . . . for an hour or two,’’ he
did not routinely leave the child with his significant other
or family members. As to the child, he testified that the
child was not a heavy sleeper in general but that the child
was ‘‘always . . . happy when [he woke the child] up,’’
and he disagreed with the defendant’s characterization of
the child being ‘‘traumatized’’ to go to his home. With
respect to the school issue, the defendant testified that
he was not concerned about the child making friends in
Southington, that he lived one quarter of a mile from the
school that he planned for the child to attend, and that
he had no intent to relocate. As to the COVID-19 pandemic,
the plaintiff testified that there was a time when the child’s
daycare was closed as a result of the pandemic but that
the parties ‘‘just worked it out amongst [themselves] and
kind of co-parented . . . .’’
At the conclusion of the evidentiary hearing, the court
stated: ‘‘The court has listened to the testimony and con-
siders some, but not all, of the testimony to be credible.
The court takes into consideration that there was a trial
held for a four day period [on the initial modification
motions] in which the court made some decisions after
some significant consideration of the circumstances. At
that point [the court] had the opportunity to hear exten-
sive testimony, view the witnesses, and come to some
final decision. I think at that time the court took into
consideration that the [plaintiff] does live in Southington
and is employed as a firefighter and a landscaper. And
to the degree that the landscaping business . . . has
expanded . . . the reality is that that sometimes happens
as parents and we make the necessary judgment about
how we ensure that our child continues to be appropri-
ately cared for.’’ In its written order denying the March
30, 2021 modification motions, the court concluded that
there had been no substantial or material change in cir-
cumstances since the issuance of the final orders.
On the basis of the record before us, we conclude that
the court reasonably determined that the defendant failed
to demonstrate a material change in circumstances since
the issuance of the final orders warranting modification.
Faced with conflicting testimony from the parties, ‘‘the
court was free to credit or reject all or part of the testimony
[presented] . . . . On review, we do not reexamine the
court’s credibility assessments.’’ Zilkha v. Zilkha, 167
Conn. App. 480, 489, 144 A.3d 447 (2016). Thus, we con-
clude that the court did not abuse its discretion in denying
the March 30, 2021 modification motions.
III
Last, we address the defendant’s claim that the trial
court improperly denied her May 8, 2020 modification
motion. The defendant’s sole argument is that the court
failed to hold an evidentiary hearing before denying the
motion. The plaintiff, in addition to disagreeing with the
merits of the defendant’s claim, argues that this claim has
been rendered moot, inter alia, by virtue of the August
11, 2021 evidentiary hearing held on the defendant’s March
30, 2021 modification motions. We agree with the plaintiff
that the claim is moot.
‘‘Mootness implicates [this] court’s subject matter juris-
diction and is thus a threshold matter for us to resolve.
. . . It is a [well settled] general rule that the existence of
an actual controversy is an essential requisite to appellate
jurisdiction; it is not the province of appellate courts to
decide moot questions, disconnected from the granting
of actual relief or from the determination of which no
practical relief can follow. . . . An actual controversy
must exist not only at the time the appeal is taken, but
also throughout the pendency of the appeal. . . . When,
during the pendency of an appeal, events have occurred
that preclude an appellate court from granting any practi-
cal relief through its disposition of the merits, a case has
become moot.’’ (Internal quotation marks omitted.) Aldin
Associates Ltd. Partnership v. State, 209 Conn. App. 741,
753, 269 A.3d 790 (2022).
The following additional facts and procedural history
are relevant. In the May 8, 2020 modification motion,
the defendant requested that the plaintiff temporarily be
denied visitation with the child because he allegedly had
been ‘‘continu[ing] to put the health and safety of the
child at risk daily.’’ In the affidavit accompanying her
corresponding application for an ex parte order of cus-
tody, the defendant averred in relevant part that (1) the
plaintiff was not abiding by guidelines issued at the time
by the Centers for Disease Control and Prevention in
relation to the COVID-19 pandemic in that he was not
social distancing or wearing masks or gloves when in the
company of others, thus putting himself and the child at
risk, and (2) the plaintiff was leaving the child with third
parties for extended periods of time during his parenting
time. In conjunction with its denial of the defendant’s
request for ex parte relief, the court, Price-Boreland, J.,
ordered a hearing to be held on June 5, 2020, on the
application as well as the May 8, 2020 modification motion;
however, as a result of the pandemic, that hearing was
postponed and never rescheduled. On September 1, 2020,
the court, Klau, J., denied the May 8, 2020 modification
motion without conducting a hearing.
While the original appeal filed on October 6, 2020, was
pending, the defendant filed the March 30, 2021 modifica-
tion motions. One of those motions sought to modify the
parties’ parenting schedule on the basis of (1) the COVID-
19 pandemic and (2) assertions that the plaintiff regularly
was leaving the child in the care of his girlfriend or family
members during his parenting time. On August 11, 2021,
the court held an evidentiary hearing on the March 30,
2021 modification motions and denied both motions on
the same day.
With respect to the defendant’s claim vis-à-vis the denial
of the May 8, 2020 modification motion, the only practical
relief that we could afford her is a remand to the trial
court with direction to conduct an evidentiary hearing.
Under the circumstances of this case, however, we con-
clude that such relief would be superfluous. The defen-
dant’s March 30, 2021 modification motion concerning
the parties’ parenting schedule raised the same issues
encompassed by the May 8, 2020 modification motion,
namely, whether modification was warranted in light of
(1) the COVID-19 pandemic, in particular its effect on the
health and safety of the child, and (2) assertions that the
plaintiff was leaving the child with third parties during
his parenting time. The court conducted an evidentiary
hearing on the March 30, 2021 modification motion,
thereby giving the defendant an opportunity to be heard
and to submit evidence as to those issues. Put simply, in
effect, the defendant has received the relief that she seeks
as to the denial of her May 8, 2020 modification motion,
thereby rendering her claim moot.20 See, e.g., Wilkens v.
Wilkens, 10 Conn. App. 576, 579–80, 523 A.2d 1371 (1987)
(claim raised challenging ‘‘correctness of’’ evidentiary
hearing held on defendant’s first motion to modify pen-
dente lite unallocated alimony and support order was
deemed moot because defendant had been afforded relief
by virtue of evidentiary hearing held, during pendency of
appeal, on second motion to modify).
The portions of the appeal taken from the court’s Febru-
ary 26, 2020 decision issuing the interim orders and the
court’s September 1, 2020 denial of the defendant’s May
8, 2020 postjudgment motion for modification are dis-
missed as moot; the decisions are affirmed in all other
respects.
In this opinion the other judges concurred.
* In accordance with federal law; see 18 U.S.C. § 2265 (d) (3) (2018), as
amended by the Violence Against Women Act Reauthorization Act of 2022,
Pub. L. No. 117-103, § 106, 136 Stat. 49; we decline to identify any person
protected or sought to be protected under a protection order, protective order
or a restraining order that was issued or applied for, or others through whom
that person’s identity may be ascertained.
1
For ease of reference, we address the defendant’s claims in a different
order than they are presented in her appellate briefs.
2
Prior to the evidentiary hearings held in December, 2019, the court con-
ducted several evidentiary hearings on certain motions for contempt that are
not relevant to this appeal. The parties and the court agreed that the evidentiary
record as to the initial modification motions would include the evidence intro-
duced during the contempt proceedings.
3
In his proposed orders filed in relation to the initial modification motions,
the plaintiff requested that the court issue ‘‘an immediate interim postjudgment
order in accordance with the [plaintiff’s proposed orders] regarding custody
and parenting access. [The plaintiff asserted that] [t]he court ha[d] authority
to do so pursuant to [Yontef] . . . .’’
4
The court initially issued the interim orders on February 21, 2020. On
February 24, 2020, the plaintiff filed a motion, which the court treated as a
motion to reargue, requesting that the court alter a portion of the interim orders
identifying the start date of the temporary parenting schedule. On February
26, 2020, the court vacated the February 21, 2020 interim orders and issued
the operative interim orders.
5
The defendant filed the application seeking ex parte relief and the May 8,
2020 modification motion as a self-represented party.
6
The September 1, 2020 decision reflects that, in addition to the initial
modification motions, the court resolved a postjudgment motion that the defen-
dant filed on August 2, 2018, seeking to modify the parties’ parenting schedule.
In her principal appellate brief, however, the defendant states that the August
2, 2018 motion had been disposed of by stipulations executed by the parties
and was no longer at issue at the time of the evidentiary hearings held on the
initial modification motions. Whether the defendant’s August 2, 2018 motion
was properly before the court does not affect our resolution of the defendant’s
claims on appeal, and, therefore, we need not discuss the issue further.
7
On September 18, 2020, the defendant also filed (1) a motion for articulation,
(2) a motion to open, vacate, and/or modify, and (3) a motion to correct, all
of which were substantively similar to her motion to reargue. The court denied
these motions.
8
On July 16, 2021, counsel for the guardian ad litem for the minor child filed
a statement adopting the appellate brief filed by the plaintiff. See Practice Book
§ 67-13.
9
On March 10, 2021, the defendant filed requests for leave to file the March
30, 2021 motions for modification, which the court granted on March 24, 2021.
10
Following the September 29, 2017 judgment, the parties filed other postjudg-
ment motions for modification not mentioned in this opinion, none of which
is relevant to this appeal.
11
‘‘The statutory factors are as follows: ‘(1) The temperament and develop-
mental needs of the child; (2) the capacity and the disposition of the parents
to understand and meet the needs of the child; (3) any relevant and material
information obtained from the child, including the informed preferences of the
child; (4) the wishes of the child’s parents as to custody; (5) the past and
current interaction and relationship of the child with each parent, the child’s
siblings and any other person who may significantly affect the best interests
of the child; (6) the willingness and ability of each parent to facilitate and
encourage such continuing parent-child relationship between the child and the
other parent as is appropriate, including compliance with any court orders;
(7) any manipulation by or coercive behavior of the parents in an effort to
involve the child in the parents’ dispute; (8) the ability of each parent to be
actively involved in the life of the child; (9) the child’s adjustment to his or
her home, school and community environments; (10) the length of time that
the child has lived in a stable and satisfactory environment and the desirability
of maintaining continuity in such environment, provided the court may consider
favorably a parent who voluntarily leaves the child’s family home pendente
lite in order to alleviate stress in the household; (11) the stability of the child’s
existing or proposed residences, or both; (12) the mental and physical health
of all individuals involved, except that a disability of a proposed custodial
parent or other party, in and of itself, shall not be determinative of custody
unless the proposed custodial arrangement is not in the best interests of the
child; (13) the child’s cultural background; (14) the effect on the child of the
actions of an abuser, if any domestic violence has occurred between the parents
or between a parent and another individual or the child; (15) whether the child
or a sibling of the child has been abused or neglected, as defined respectively
in section 46b-120; and (16) whether the party satisfactorily completed participa-
tion in a parenting education program established pursuant to section 46b-
69b.’ General Statutes (Rev. to 2019) § 46b-56 (c).’’ Dolan v. Dolan, 211 Conn.
App. 390, 398–99 n.6, 272 A.3d 768, cert. denied, 343 Conn. 924, 275 A.3d
626 (2022).
12
As this court recently summarized, ‘‘[i]n Yontef, our Supreme Court noted
that pendente lite custody orders do not survive the rendition of a judgment
and that the judgment itself, being automatically stayed by operation of Practice
Book (1981) § 3065 (now § 61-11), is not binding for twenty days. Yontef v.
Yontef, supra, 185 Conn. 291. The court further noted that, ‘[i]n this twenty-
day gap period, the parties arguably may revert to their common law rights,
under which both are entitled, without preference, to take custody.’ Id. The
court found that such a resolution was both ‘unseemly’ and ‘inconsistent with
the concern, repeatedly enunciated in the statutes and the cases, for the best
interests of the children.’ Id. The court therefore advised that ‘[a] trial court
rendering a judgment in a disputed custody case should . . . consider entering
protective orders sua sponte to ensure an orderly transition that protects the
primary interests of the children in a continuous, stable custodial placement.’
Id., 291–92.
‘‘More specifically, the court stated: ‘In the interest of minimizing the emo-
tional trauma so often imposed upon the children of divorce, a trial court
should, at or before the time of its judgment, inquire whether its custody order
is apt to be acceptable to the parties or is apt to be further litigated upon
appeal. If an appeal appears likely, the court should enter whatever interim
postjudgment order it deems most appropriate, in the exercise of its broad
discretion, taking into consideration the needs of the minor children for continu-
ity, stability and well-being as well as the need of the parent who appeals for
a fair opportunity fully to present his or her case. These legitimate needs are
not, in all probability, apt to be protected if dissatisfied parties are able to
intervene unilaterally, without judicial supervision, to effect changes in custody
pending appeal. A court exercising its equitable jurisdiction with regard to
custody has the duty to assure itself that its judgment will be implemented
equitably to serve the best interests of the children for the near as well as for
the more distant future.’ Id., 293–94.’’ (Footnote omitted.) Thunelius v. Posacki,
193 Conn. App. 666, 687–89, 220 A.3d 194 (2019).
As this court further explained, ‘‘[our Supreme Court’s] concern in Yontef
was to ensure an orderly transition [from prejudgment status to postjudgment
status] that protects the primary interests of the children in a continuous, stable
custodial placement during the period in which the enforcement of the judgment
is stayed. . . . In 1986, however, Practice Book § 61-11 was amended to
exclude custody and visitation orders from operation of the automatic stay
of execution provision. . . . Such orders, once issued, are now immediately
enforceable, and, thus, there is no longer a gap period between pendente lite
custody orders and the final orders. . . . Thus . . . Yontef-type protective
orders may be superfluous in most cases involving issues of custody and
visitation.’’ (Citations omitted; emphasis omitted; internal quotation marks omit-
ted.) Id., 690 n.20.
13
The plaintiff also argues that (1) the defendant did not appeal from the
interim orders, (2) any such appeal would be subject to dismissal for lack of
a final judgment, and (3) the defendant did not object to the interim orders
and, thus, has waived her claim on appeal. We note that the defendant’s appeal
form reflects that her original appeal, filed on October 6, 2020, encompassed
the interim orders. As to the plaintiff’s remaining arguments, we need not
address them further in light of our conclusion that the defendant’s claim
is moot.
14
During an evidentiary hearing held on December 18, 2019, while subject
to direct examination by the plaintiff’s trial counsel, the guardian ad litem
testified as to research that she had performed comparing the Cheshire and
Southington school districts. The defendant’s trial counsel moved to strike that
testimony on the basis that the guardian ad litem was testifying from facts
not in evidence, and the court ordered that testimony to be stricken. During
subsequent evidentiary hearings held on December 19, 2019, and February 6,
2020, on cross-examination, the defendant’s trial counsel asked the guardian
ad litem about the research that she had performed regarding the Cheshire
and Southington school districts. The guardian ad litem proceeded to testify
as to her research. The defendant’s trial counsel did not move to strike that testi-
mony.
15
Notably, in their respective proposed orders vis-à-vis the initial modification
motions, both parties requested that the court impose restrictions with respect
to the filing of motions for modification. The plaintiff requested an order
providing that (1) neither party was permitted to file motions for modification
of custody, child support, or the parenting schedule for a period of five years,
unless there was an ‘‘ ‘emergency’ involving the safety and the physical well-
being of the minor child,’’ in which case the movant was required to file a
request for leave to file a motion for modification pursuant to Practice Book
§ 25-26 (g), and (2) either party could file motions for modification of custody,
child support, or the parenting schedule after five years, provided that attendant
requests for leave were filed in accordance with § 25-26 (g). The defendant
requested an order providing that, in the event that a dispute arose between
the parties regarding ‘‘the health, education, or general welfare of the child,’’
the parties were required to attend at least five counseling sessions with a co-
parenting counselor before filing any motion to modify.
16
The defendant also asserts that the Practice Book § 25-26 (g) order will
lead to unnecessary and harmful delays. This argument is unavailing. As noted
in footnote 15 of this opinion, the defendant requested an order requiring the
parties to participate in a minimum of five counseling sessions before filing a
motion for modification. Such an order, if issued, unquestionably would have
caused significant delays if either party sought to file a motion to modify.
17
The defendant proposes four different dates as starting points from which
the court should have considered whether a material change in circumstances
had occurred: (1) February 6, 2020, when the evidentiary record closed as to
the initial modification motions; (2) February 26, 2020, when the court issued
the interim orders; (3) March 10, 2020, when Governor Ned Lamont declared
a public health emergency and a civil preparedness emergency regarding the
COVID-19 pandemic throughout the state; see Gonzalez v. Commissioner of
Correction, 211 Conn. App. 632, 635, 273 A.3d 252, cert. denied, 343 Conn. 922,
275 A.3d 212 (2022); or (4) March 18, 2020, when the chief court administrator
issued a statement providing that, effective March 19, 2020, Superior Court
operations were limited to ‘‘Priority 1 functions’’ in certain designated buildings.
Statement from Judge Patrick L. Carroll III, Chief Court Administrator (March
18, 2020), available at https://jud.ct.gov/HomePDFs/JudgeCarrollStatement.pdf
(last visited October 3, 2022).
18
The defendant’s motion to open the evidence stated that there was ‘‘newly
discovered evidence concerning the plaintiff’s ability to care for the child
. . . .’’ The defendant has not raised a claim on appeal challenging the court’s
denial of the motion to open the evidence.
19
We address the defendant’s separate claim as to the denial of the May 8,
2020 modification motion in part III of this opinion.
20
In her principal appellate brief, the defendant suggests that she is not
certain that a hearing on the May 8, 2020 modification motion is necessary.
As the defendant states, ‘‘[b]y the time this appeal is resolved, perhaps mask
wearing and social distancing will be a concern of the past, and maybe there
will be no present reason for a hearing on the [May 8, 2020 modification
motion]. . . . [If the matter is remanded for a hearing, she] can decide at that
time whether or not she still wants to proceed based on present circumstances.’’
(Citation omitted; emphasis added; footnote omitted.)