Labieniec v. Megna

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Labieniec v. Megna

JENNIFER LABIENIEC v. ROBERT MEGNA
(AC 45809)
Suarez, Clark and Vertefeuille, Js.

Syllabus

The defendant father appealed from the trial court’s judgment denying his
postjudgment motion for an order seeking a passport for the parties’ minor
child and granting the plaintiff mother’s postjudgment motion to modify the
custody of the child. Held:

The trial court did not abuse its discretion in denying the defendant’s motion
for an order seeking a passport for the child, as there was evidence to
support the court’s finding that it was not in the child’s best interest to
grant the motion.

The trial court erred in granting the plaintiff’s postjudgment motion for
modification of custody of the child, as that court improperly determined
that the language of the parties’ agreement was clear and unambiguous as
to their intent with respect to the child’s schooling, and the case was
remanded for a determination of the parties’ intent after consideration of
relevant extrinsic evidence.
Argued May 13—officially released September 17, 2024

Procedural History

Application for custody of the parties’ minor child,
brought to the Superior Court in the judicial district of
New Haven, where the court, Goodrow, J., rendered
judgment regarding custody in accordance with the
agreement of the parties; thereafter, the court, Laskos,
J., granted the plaintiff’s postjudgment motion to mod-
ify custody, from which the defendant appealed to this
court; subsequently, the court, Laskos, J., denied the
defendant’s motion for order regarding a passport for
the parties’ minor child, and the defendant filed an
amended appeal to this court. Reversed in part; further
proceedings.
Campbell D. Barrett, with whom were Stacie L.
Provencher and, on the brief, Kelly A. Scott, for the
appellant (defendant).
Brette H. Fitton, for the appellee (plaintiff).
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Opinion

CLARK, J. In this custody dispute, the defendant,
Robert Megna, appeals from the judgment of the trial
court granting a postjudgment motion to modify cus-
tody of the parties’ minor child, C, filed by the plaintiff,
Jennifer Labieniec, and from the denial of his postjudg-
ment motion for a passport for C. On appeal, the defen-
dant claims that the trial court improperly (1) denied
his motion for order regarding a passport for C, and
(2) modified the agreement of the parties as to C’s
primary residence for school purposes. We disagree
with the defendant as to his first claim but agree with
him on his second claim. Accordingly, we affirm in part
and reverse in part the judgment of the trial court.
We begin by setting forth the relevant facts, as found
by the trial court, and procedural history of this case.
The parties, who were never married, are the parents
of C, a daughter born in September, 2016. The plaintiff
also has a minor child, P, who is C’s older half brother
from another relationship. The defendant currently
resides in New Haven, and the plaintiff currently resides
in Middletown.
On July 31, 2019, the plaintiff filed a custody applica-
tion, requesting, among other things, joint legal custody
and primary physical custody of C. On August 23, 2019,
the defendant filed a cross complaint, similarly seeking
joint legal custody and primary physical custody of C.
On September 12, 2019, the court, Goodrow, J.,
approved and incorporated into the judgment of the
court an agreement of the parties concerning C (agree-
ment), which provided in relevant part: ‘‘(1) The parties
shall share joint legal custody of [C] . . . . (5) Both
parties shall give thirty days advanced notice of any
vacations of three days or more they take with or with-
out [C]. There shall be no vacations with [C] out of the
country without mutual agreement and consent. . . .
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(10) [The defendant] shall have primary residence for
school purposes. It is the intention of the parties that
[C] will not be placed in the New Haven public school
system.’’
When C was ready to start kindergarten in the 2021–
2022 school year, the defendant attempted to enroll her
in a private school in North Haven, but she was denied
admission. Thereafter, the defendant proceeded to
enroll C in the New Haven public school system for
kindergarten.
On June 23, 2021, the plaintiff filed a motion for
modification seeking to modify section 10 of the parties’
agreement to award her primary residential custody of
C for school purposes, and to enroll C in the Middletown
public school system. Specifically, the plaintiff stated
in her motion: ‘‘Since the date of the [agreement], the
circumstances in this case have changed substantially,
as follows:
‘‘[The defendant] failed to enroll [C] in private school
as contemplated in the agreement. [The defendant] uni-
laterally enrolled [C] in [the] New Haven public [school
system] contrary to the agreement, and in violation of
joint legal custody. Further, he is attempting to unilater-
ally impose a change to the parenting schedule by telling
[the plaintiff] that [C] will stay with him throughout the
week, despite the existing court orders. It is in the best
interest of [C] to be enrolled in [the] Middletown public
[school system], where [P and the plaintiff] live. . . .
‘‘Further, throughout the pandemic [the] defendant
failed to consult or coordinate with [the plaintiff]
regarding his travel outside . . . of Connecticut and
outside [of] the United States . . . resulting in [the
plaintiff] having to choose risking exposure to Covid
or having parenting time with [C] at various points
throughout the pandemic.’’
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The defendant filed an objection to the plaintiff’s
motion on December 20, 2021, in which he stated: ‘‘In
her motion, the [plaintiff] states that the [defendant]
failed to enroll [C] in a private school as contemplated
by the agreement of the parties dated September 12,
2019. . . .
‘‘The agreement executed by the parties . . . states
in [section] 10 that ‘‘[t]he [defendant] shall have primary
residence for school purposes. It is the intention of the
parties that [C] will not be placed in the New Haven
public school system. . . .
‘‘In reality, the plaintiff unilaterally filed an applica-
tion to enroll [C] in the Middletown school district on
or around April 29, 2021, unbeknownst to the defendant.
She only withdrew that application in August, 2021.
. . .
‘‘In addition, the plaintiff went with the defendant to
enroll [C] in the New Haven [public school system] only
after [C] was not accepted in a private school which
was agreed upon by the parties. The plaintiff cooperated
in the enrollment of [C] in the New Haven public [school
system]. . . .
‘‘The plaintiff now disingenuously seeks to paint the
defendant as the culprit who has masterminded enroll-
ment of [C] in the New Haven public school system
distancing herself from a decision in which she partook.
Any [substantial change in circumstances] has been
caused by and agreed to by the plaintiff. . . .
‘‘There is no basis for the plaintiff’s modification of
custody including diminution of time spent with the
[defendant] by [C]. In fact, the defendant has helped
the plaintiff by offering his services to watch [C]. He
participates in [C’s] activities and interests. He loves
[C] and he is equally committed to providing for her
welfare. It is in [C’s] best interest for the parties to
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Labieniec v. Megna

continue to have joint legal, shared physical custody
of [C].’’
Separately, on November 2, 2021, the defendant filed
a postjudgment motion for order seeking to have the
court direct the parties to cooperate in obtaining a
passport for C. The defendant further requested that
he retain the passport in his custody. The plaintiff did
not file any objection to the defendant’s motion. On
July 28 and August 8, 2022, the court, Laskos, J., held
a hearing on, inter alia, the plaintiff’s motion for modifi-
cation, the defendant’s objection to the plaintiff’s
motion for modification, and the defendant’s motion
for order seeking a passport for C. The court heard
testimony from both parties, a friend of the plaintiff,
and the guardian ad litem, Attorney Joseph DiSilvestro.1
On August 26, 2022, the court issued a written order
regarding the plaintiff’s motion for modification. The
court stated: ‘‘[The plaintiff] and [the defendant] are
the parents of [C] . . . . [C] is a well-adjusted, happy
child who loves both parents. She is social and has
many friends. The parties entered into an agreement
concerning [C]. . . . This agreement gave the [defen-
dant] primary residency for school purposes under the
assumption that [the defendant] would not place [C]
in a specific public school system. Section 10 of the
agreement . . . is clear as to purpose and intent. This
section states: ‘[The defendant] shall have primary resi-
dence for school purposes. It is the intention of the
We note that the guardian ad litem representing C on appeal is Attorney
1

Richard W. Callahan. Attorney Callahan adopted the defendant’s appellate
brief as to the claim regarding the defendant’s motion for order regarding
a passport for C and requested that we reverse the judgment of the trial
court as to that claim. As to the defendant’s claim regarding the change in
primary custody for school purposes, the guardian ad litem stated, ‘‘If there
is reversible error as to [the defendant’s claim regarding primary custody
for school purposes], the guardian ad litem reserves the right on remand
to formulate an opinion as to what is in the best interest of [C].’’
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parties that [C] will not be placed in the New Haven
public school system.’
‘‘[The defendant] once tried to enroll [C] in a school
that would have satisfied the agreement, however [C’s]
admission was denied. Beyond this there was little to
no effort by [the defendant] to enroll [C] during her
second school year in a school consistent with the par-
ties’ agreement.
‘‘Before [C] entered school, and for this school year,
alternative school options that satisfy the agreement
of the parties exist[ed], including a school near [the
plaintiff’s] home and another school in between the
[parties’] residences. [The plaintiff] contacted [the
defendant] to discuss these options, however, these
options were rebuffed by [the defendant], and he
enrolled [C] in the school closest to his home. [The
plaintiff] did not consent to the enrollment of [C] in
this school, however, having no other option, she deter-
mined it was in the best interest of [C] to proceed with
the orientation process and file . . . this motion for
modification. After a full year of [C] attending her cur-
rent school, [the plaintiff] continues to disagree that
the current school meets the intent of the agreement,
and she believes that remaining in the current school
is not in [C’s] best interest.
‘‘Upon the 2022–2023 school year, there was no effort
by [the defendant] to apply to another school as
intended in the agreement. [The plaintiff] obtained
information to compare schools to determine what
school is in [C’s] best interest. [The defendant] did not
review this information and unilaterally determined that
the current school is in [C’s] best interest.
‘‘The current school and parenting schedule in place
resulted in an inequity between the parents because
[the plaintiff] had to adjust her work schedule so that
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she could transport [C] to the school near [the defen-
dant’s] home. The commute to [C’s] school, given [the
plaintiff’s] work schedule and additional expenses due
to [an] increase in gas prices, created stressors that are
not in [C’s] best interest. [The defendant] did not have
similar stressors. [The defendant] has more time and
has resources for [C’s] school transportation needs, in
part because he is retired.
‘‘[C] makes friends easily. She has expressed [a] will-
ingness to remain in her current school and/or to attend
another school. [C] has an admirable temperament. If
[C] remains in the same school, there is no certainty
that she would retain her current friends or teacher.
The [guardian ad litem] supported [C] remaining in her
current school or a change of school to a private school
if that option is available.
‘‘The court finds that the intent of the agreement was
not followed and that this resulted in a lack of trust
between the parties. This is not in [C’s] best interest.
‘‘The parties reached their agreement under the mis-
taken impression that [C] would be admitted to an alter-
native school. The court finds that this deviation from
the agreement is a material change in circumstances
that was not anticipated by either party when the agree-
ment was made an order of the court.
‘‘The court considers this evidence in light of the
relevant law found at [General Statutes] § 46b-56 (c).
When considering a modification of custody pursuant
to § 46b-56 (c) the court must consider the best interests
of the children utilizing the factors contained within
that statute.
‘‘The statutory factors most relevant to this decision
include:
‘‘1. The physical and emotional safety of the child;
[C] is physically and emotionally safe in both par-
ents’ homes.
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‘‘2. The temperament and developmental needs of the
child. [C] has an easygoing temperament.
‘‘3. The child’s adjustment to his or her home, school,
and community environments. [C] easily transitions
between the homes for parenting time. She makes
friends easily and can easily transition to a new school.
‘‘4. Any relevant and material information obtained
from the child, including the informed preferences of
the child. [C] is happy in her current school, however,
[C] has also expressed wanting to attend the same
school as [her] brother, [P], although [P] is older
than [C].
‘‘5. The willingness and ability of each parent to facili-
tate and encourage such continuing parent-child rela-
tionship between the child and the other parent as is
appropriate, including compliance with any court order.
Both parties had a clear understanding of the intent of
the agreement as to school when it was ordered. [The
plaintiff] followed this section of the court order even
though [C] was enrolled in a school that did not meet
the intent of the agreement. [The defendant] did not
follow the intent of the agreement.’’ The court ordered
that the plaintiff have primary residence of C for school
purposes, effective for the 2022–2023 school year. On
September 14, 2022, the defendant filed this appeal chal-
lenging the court’s August 26, 2022 decision on the
plaintiff’s motion for modification.
Subsequently, on November 28, 2022, the court
denied the defendant’s motion for order regarding
obtaining a passport for C. The court stated: ‘‘[C] was
five years old at the time of the hearing. The defendant
enjoys traveling and he would travel internationally
with [C], if allowed. The defendant failed to provide
the plaintiff with advance notice of any vacations of
three days or more taken with or without [C] as required
by court order. This resulted in the plaintiff having to
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choose risking exposure to Covid or having parenting
time with [C] at various points throughout the pan-
demic. The court finds the plaintiff’s concerns with
international travel are reasonable given [C’s] age and
development and that it is not in [C’s] best interest . . .
for the court to grant an order for a passport at this
time.’’ Thereafter, the defendant filed an amended
appeal to include the court’s November 28, 2022 denial
of his motion for order regarding obtaining a passport
for C.
On May 12, 2023, the defendant filed a motion for
articulation with respect to the court’s order that C’s
primary residence be with the plaintiff for school pur-
poses and its denial of the defendant’s motion for order
regarding a passport for C. On May 26, 2023, the trial
court denied the motion for articulation. The defendant
then filed a motion for review with this court on July
25, 2023. On September 13, 2023, this court granted
review, but denied the relief requested therein. Addi-
tional facts and procedural history will be set forth as
necessary.
I
The defendant first argues that the court erred in
denying his motion for order regarding a passport for
C. Specifically, the defendant argues that the court’s
finding that he did not comply with the agreement by
notifying the plaintiff of his vacations is clearly errone-
ous and that the court abused its discretion in denying
his motion because granting the motion is in C’s best
interest. We are not persuaded.
Section 46b-56 provides in relevant part: ‘‘(a) In any
controversy before the Superior Court as to the custody
or care of minor children . . . the court may make or
modify any proper order regarding the custody, care,
education, visitation and support of the children . . . .
(b) In making or modifying any [such] order . . . the
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rights and responsibilities of both parents shall be con-
sidered and the court shall enter orders accordingly
that serve the best interests of the child and provide
the child with the active and consistent involvement
of both parents commensurate with their abilities and
interests. . . .’’
‘‘An appellate court will not disturb a trial court’s
orders in domestic relations cases unless the court has
abused its discretion or it is found that it could not
reasonably conclude as it did, based on the facts pre-
sented. . . . In determining whether a trial court has
abused its broad discretion in domestic relations mat-
ters, we allow every reasonable presumption in favor
of the correctness of its action. . . . Appellate review
of a trial court’s findings of fact is governed by the
clearly erroneous standard of review. The trial court’s
findings are binding upon this court unless they are
clearly erroneous in light of the evidence and the plead-
ings in the record as a whole. . . . A finding of fact is
clearly erroneous when there is no evidence in the
record to support it . . . or when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction
that a mistake has been committed. . . . Therefore, to
conclude that the trial court abused its discretion, we
must find that the court either incorrectly applied the
law or could not reasonably conclude as it did.’’ (Inter-
nal quotation marks omitted.) De Almeida-Kennedy v.
Kennedy, 224 Conn. App. 19, 29–30, 312 A.3d 150 (2024).
In its order denying the defendant’s motion, the court
found that it was not in C’s best interest at that time
for it to order the plaintiff to cooperate with the defen-
dant in obtaining a passport for C. Specifically, the court
stated that ‘‘[C] was five years old at the time of the
hearing. The defendant enjoys traveling and he would
travel internationally with [C], if allowed. The defendant
failed to provide the plaintiff with advance notice of
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any vacations of three days or more taken with or with-
out [C] as required by court order. This resulted in the
plaintiff having to choose risking exposure to Covid
or having parenting time with [C] at various points
throughout the pandemic. The court finds the plaintiff’s
concerns with international travel are reasonable given
[C’s] age and development and that it is not in [C’s]
best interest . . . for the court to grant an order for a
passport at this time.’’
The defendant argues that the record does not sup-
port the court’s finding that he failed to provide the
plaintiff with advance notice of any of his vacations
and that his lack of notice caused the plaintiff to risk
exposure to Covid in order to have parenting time with
C. The defendant argues that, although these allegations
were made in the plaintiff’s motion for modification,
there was no evidence presented at the hearing in sup-
port of these allegations and, therefore, the court’s find-
ings were clearly erroneous.
Although we agree with the defendant that there was
little or no evidence regarding the defendant’s alleged
lack of notice regarding his travel, the defendant ignores
the fact that there was evidence to support the court’s
additional findings in support of its order denying his
motion, namely, that it was not in C’s best interest for
the court to grant the order for a passport in light of
C’s age and development.
At the hearing on the defendant’s motion, the plaintiff
testified regarding her concerns about C travelling inter-
nationally. In response to a question from her attorney
on direct examination, she testified that her ‘‘biggest
concern [is with] C traveling [to] countries where she
doesn’t speak the language. God forbid anything were
to happen. I know [the defendant] travels alone. She
can’t tell you where she lives, her phone number, or
speak the language. That is my biggest concern.’’ The
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plaintiff then went on to testify about other concerns
she had, including concerns about the company that
the defendant keeps when he travels internationally.
At the time of the hearing, C was five years old. On
the basis of the plaintiff’s testimony about her concerns
regarding C’s age and development, it was reasonable
for the court to conclude that it was not in C’s best
interest to require the plaintiff to assist the defendant
in acquiring a passport for C at that time. Furthermore,
it bears mentioning that the parties’ agreement provides
in relevant part that ‘‘[b]oth parties shall give . . .
thirty . . . days advanced notice of any vacations of
[three] days or more they take with or without [C].
There shall be no vacations with [C] out of the country
without mutual agreement and consent.’’ Thus, the
agreement essentially gives each parent full veto power
over the other parent’s international travel with C.
Because the plaintiff had not agreed or consented to
allow C to travel internationally with the defendant (or
expressed any intention of allowing C to do so in the
future), had the court granted the motion for a passport,
the court essentially would have been facilitating the
defendant’s international travel with C, even though
under the agreement the plaintiff has full veto authority
over such travel. Accordingly, we cannot conclude on
this record that the court abused its discretion in deny-
ing the defendant’s motion for an order regarding a
passport.
II
The defendant next argues that the court improperly
granted the plaintiff’s motion for modification, which
changed C’s primary residence for school purposes
from the defendant’s address to the plaintiff’s address.
Specifically, the defendant argues that the court’s (1)
‘‘conclusion that the [defendant] did not follow the
intent of the agreement is contradicted by the plain
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language of the agreement,’’ (2) ‘‘reliance on [C’s] pref-
erences is logically inconsistent,’’ and (3) findings
regarding the plaintiff’s concerns with C’s placement
in the New Haven public school system are ‘‘flawed.’’
We agree with the defendant that the court improperly
granted the plaintiff’s motion for modification, but we
do so for a somewhat different reason. Specifically, we
conclude that the court improperly determined that the
language of the agreement was clear and unambiguous
with respect to the parties’ intent concerning where C
would attend school. Because the court’s order granting
the plaintiff’s motion for modification was predicated
on its determination that the relevant language of the
agreement was clear and unambiguous with respect to
where C would attend school, a remand is required so
that the court can consider extrinsic evidence concern-
ing the parties’ intent with respect to that ambiguous
provision of the agreement.
We begin by setting forth the principles of law rele-
vant to our resolution of this claim. ‘‘[Section] 46b-56
provides trial courts with the statutory authority to
modify an order of custody or visitation. When making
that determination, however, a court must satisfy two
requirements. First, modification of a custody award
must be based upon either a material change [in] cir-
cumstances 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.2 . . . Second, the court shall
consider the best interests of the child and in doing so
may consider several factors. General Statutes § 46b-
56 (c). . . . 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
2
In her motion for modification, the plaintiff argued only that there had
been a substantial change in circumstances, not that the original custody
order was not based upon the best interests of the child.
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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.
. . . The burden of proving a change to be in the best
interest of the child rests on the party seeking the
change. . . .
‘‘Not all changes occurring in the time between the
prior custody order and the motion for modification
are material. . . . Although there are no bright-line
rules for determining when a material change in circum-
stances warranting the modification of custody has
occurred, there are several relevant considerations,
including whether . . . the change was not known or
reasonably anticipated when the order was entered, and
the change affects the child’s well-being in a meaningful
way.’’ (Citations omitted; emphasis omitted; footnote
added; footnote omitted; internal quotation marks omit-
ted.) Clougherty v. Clougherty, 162 Conn. App. 857,
868–70, 133 A.3d 886, cert. denied, 320 Conn. 932, 134
A.3d 621 (2016), and cert. denied, 320 Conn. 932, 136
A.3d 642 (2016).
In the present case, the court’s determination that
there was a material change in circumstances was predi-
cated on its determination that section 10 of the agree-
ment was clear and unambiguous as to the parties’
intent with respect to C’s schooling and that the circum-
stances presented were not anticipated by the parties’
agreement. Specifically, the court found that ‘‘[s]ection
10 of the agreement . . . is clear as to purpose and
intent’’ and that ‘‘[b]oth parties had a clear understand-
ing of the intent of the agreement . . . .’’ The court
interpreted the agreement to mean that the defendant
would have ‘‘primary residency for school purposes
under the assumption that [he] would not place [C] in
[the New Haven public school system].’’ The court
stated that the defendant ‘‘once tried to enroll [C] in a
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school that would have satisfied the agreement, how-
ever [C’s] admission was denied. Beyond this there was
little to no effort by [the defendant] to enroll [C] during
her second school year in a school consistent with
the parties’ agreement.’’ The court concluded that ‘‘the
intent of the agreement was not followed . . . [and]
[t]he parties reached their agreement under the mis-
taken impression that [C] would be admitted to an alter-
native school. . . . [T]his deviation from the agree-
ment is a material change in circumstances that was
not anticipated by either party when the agreement was
made an order of the court.’’
For the reasons that follow, we disagree with the
trial court’s conclusion that section 10 of the parties’
agreement is clear and unambiguous. We begin with
the relevant legal principles.
‘‘It is well established that a separation agreement
that has been incorporated into a dissolution decree
and its resulting judgment must be regarded as a con-
tract and construed in accordance with the general
principles governing contracts. . . . When construing
a contract, we seek to determine the intent of the parties
from the language used interpreted in the light of the
situation of the parties and the circumstances con-
nected with the transaction. . . . [T]he intent of the
parties is to be ascertained by a fair and reasonable
construction of the written words and . . . the lan-
guage used must be accorded its common, natural, and
ordinary meaning and usage where it can be sensibly
applied to the subject matter of the contract. . . .
When only one interpretation of a contract is possible,
the court need not look outside the four corners of the
contract. . . . Extrinsic evidence is always admissible,
however, to explain an ambiguity appearing in the
instrument. . . .
‘‘If a contract is unambiguous within its four corners,
the determination of what the parties intended by their
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contractual commitments is a question of law [and our
review is plenary]. . . . When the language of a con-
tract is ambiguous, [however] the determination of the
parties’ intent is a question of fact, and the trial court’s
interpretation is subject to reversal on appeal only if it
is clearly erroneous. . . .

‘‘Accordingly, [t]he threshold determination in the
construction of a separation agreement . . . is
whether, examining the relevant provision in light of
the context of the situation, the provision at issue is
clear and unambiguous, which is a question of law over
which our review is plenary. . . . Contract language is
unambiguous when it has a definite and precise mean-
ing . . . concerning which there is no reasonable basis
for a difference of opinion . . . . The proper inquiry
focuses on whether the agreement on its face is reason-
ably susceptible of more than one interpretation. . . .
It must be noted, however, that the mere fact that the
parties advance different interpretations of the lan-
guage in question does not necessitate a conclusion
that the language is ambiguous. . . . A court will not
torture words to import ambiguity where the ordinary
meaning leaves no room for ambiguity . . . .’’ (Cita-
tions omitted; internal quotation marks omitted.) Fazio
v. Fazio, 162 Conn. App. 236, 243–45, 131 A.3d 1162,
cert. denied, 320 Conn. 922, 132 A.3d 1095 (2016).

‘‘In contrast, a contract is ambiguous if the intent of
the parties is not clear and certain from the language
of the contract itself. . . . [A]ny ambiguity in a contract
must emanate from the language used by the parties.
. . . The contract must be viewed in its entirety, with
each provision read in light of the other provisions . . .
and every provision must be given effect if it is possible
to do so. . . . If the language of the contract is suscepti-
ble to more than one reasonable interpretation, the
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Labieniec v. Megna

contract is ambiguous.’’ (Internal quotation marks omit-
ted.) Parisi v. Parisi, 315 Conn. 370, 383–84, 107 A.3d
920 (2015).
As noted, section 10 of the parties’ agreement pro-
vides in relevant part that ‘‘[the defendant] shall have
primary residence for school purposes. It is the inten-
tion of the parties that [C] will not be placed in the
New Haven public school system.’’ The first sentence
of section 10 of the agreement appears to have little
meaning outside of the context of enrollment in a public
school system. A child’s residence is important for
school purposes precisely because it dictates where a
child is entitled to attend public school. See General
Statutes § 10-184 (‘‘[s]ubject to the provisions of this
section and section 10-15c, each parent or other person
having control of a child five years of age and over and
under eighteen years of age shall cause such child to
attend a public school regularly during the hours and
terms the public school in the district in which such
child resides is in session’’ (emphasis added)); General
Statutes § 10-220 (a) (‘‘[e]ach local or regional board
of education . . . shall make such provisions as will
enable each child of school age residing in the district
to attend some public day school for the period required
by law’’ (emphasis added)). Thus, the provision of the
agreement stating that ‘‘[the defendant] shall have pri-
mary residence for school purposes’’ strongly suggests
that the parties intended for C to attend public school
in New Haven—the city in which the defendant resides.
The second sentence of section 10, however, goes
on to state that ‘‘it is the intention of the parties that
[C] will not be placed in the New Haven public school
system.’’ The ambiguity caused by these two sentences
of section 10 of the agreement is manifest on its face.
Indeed, the two sentences are entirely inconsistent. See
Thoma v. Oxford Performance Materials, Inc., 153
Conn. App. 50, 60, 100 A.3d 917 (2014) (‘‘[i]rreconcilable
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inconsistent provisions have been treated by this court
and our Supreme Court as creating an ambiguity within
the contract’’).
The parties’ competing interpretations further eluci-
date this ambiguity. The defendant claims that, although
the second sentence reflects the parties’ wishes and
desires that C attend a private school instead of the
New Haven public schools, the second sentence was
not obligatory or mandatory on the parties. He contends
that, if C were unable to attend private school for what-
ever reason (such as not being admitted by the private
school), C necessarily would have to attend public
school and the agreement made clear that C would
attend the public schools based on his residence—New
Haven. He claims that his interpretation of the agree-
ment is the only way to give effect to both sentences
of the provision.
The plaintiff, on the other hand, contends that the
plain language of section 10 demonstrated that the par-
ties agreed that C would be enrolled in a private school,
not in the New Haven public schools. The plaintiff
argues that, because C did not get into the private school
to which the defendant applied, and because the defen-
dant did not apply to any other private schools on behalf
of C, there was a material change in circumstances
because neither party contemplated C not being admit-
ted to a private school. She fails to address the meaning
or purpose of the first sentence of section 10, however.
In concluding that the language of section 10 is clear
and unambiguous and that it reflected the parties’ intent
that C not be placed in New Haven public schools under
any circumstances and that, instead, the parties
intended only that she be placed in a private school,
the trial court focused exclusively on the second sen-
tence of section 10, making little attempt to explain
how the language stating that the defendant, who lives
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Labieniec v. Megna

in New Haven, would have primary residence for school
purposes could be reconciled with the second provision
of the agreement. Although the parties have advanced
competing interpretations of the contractual language
at issue, it is not the role of this court to determine
which interpretation is more reasonable. The ambiguity
in the contractual language gives rise to an issue of
fact that must be resolved, in the first instance, by the
trial court.
On the basis of the conflicting language of section
10 of the agreement, we conclude that the agreement
is ambiguous as to C’s schooling. In light of this ambigu-
ity, the court should have considered extrinsic evidence
with respect to the parties’ intent under section 10 of
the agreement. See Parisi v. Parisi, supra, 315 Conn.
385 (if language of contract is ambiguous, parties’ intent
is question of fact that trial court is required to consider
and resolve after considering extrinsic evidence and
surrounding circumstances). Because the court’s deter-
mination that there was a material change in circum-
stances was predicated on its determination that sec-
tion 10 of the agreement was clear and unambiguous
as to the parties’ intent with respect to C’s schooling,
we must remand the case to the trial court to determine
the intent of the parties’ after consideration of any rele-
vant extrinsic evidence.3 See Casablanca v. Casa-
blanca, 190 Conn. App. 606, 620–21, 212 A.3d 1278 (‘‘[o]n
the basis of our conclusion that the court erroneously
determined that the provision was unambiguous, we
3
‘‘We recognize . . . that none of the parties on remand has an obligation
to present extrinsic evidence, whether testimonial or documentary, to
resolve this ambiguity. Nor does any party have an obligation to present
evidence as to who drafted the agreement, such that, in the event that
extrinsic evidence did not resolve the ambiguity, the contra proferentem
rule could properly be applied. We simply note that a [a party] who fails to
present any evidence that would permit the fact finder to resolve a material
ambiguity risks failing to satisfy [their] burden of proof.’’ Murchison v.
Waterbury, 218 Conn. App. 396, 415 n.19, 291 A.3d 1073 (2023).
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conclude that a remand to the trial court is necessary
for the court to hold a new hearing on the parties’
motions and to determine the intent of the parties after
consideration of all the available extrinsic evidence and
the circumstances surrounding the entering of the
agreement’’ (footnote omitted)), cert. denied, 333 Conn.
913, 215 A.3d 1210 (2019); Hirschfeld v. Machinist, 181
Conn. App. 309, 328, 186 A.3d 771 (court was required
to resolve ambiguity by considering extrinsic evidence
and making factual findings as to parties’ intent), cert.
denied, 329 Conn. 913, 186 A.3d 1170 (2018).
The judgment is reversed with respect to the granting
of the plaintiff’s postjudment motion for modification
and the case is remanded for further proceedings con-
sistent with this opinion; the judgment is affirmed in
all other respects.
In this opinion the other judges concurred.