Tannenbaum v. Tannenbaum

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TANNENBAUM v. TANNENBAUM—DISSENT

DEVLIN, J., dissenting. The appeal in this case arises
from the trial court’s denial of the motion for contempt
filed by the defendant, Stacey Tannenbaum. In her
motion for contempt, the defendant asserted that, on
five occasions over a period of approximately one year,
the plaintiff, Leonard Tannenbaum, did not personally
accompany the parties’ minor child on air travel
between Connecticut and Florida due to work commit-
ments. At the time that the contempt motion was filed,
the operative parenting time order was the January 29,
2018 order entered by the court, Colin, J. On July 5,
2019, the court, Truglia, J., denied the defendant’s
motion for contempt after finding that, although the
plaintiff had violated Judge Colin’s order, such violation
was not wilful. The order further provided: ‘‘The plain-
tiff is ordered, however, to abide strictly with the court’s
orders henceforth requiring him to be the person who
travels by air with the child except in the case of emer-
gency, not his convenience.’’ It is from this order that
the plaintiff appeals.
The majority aptly summarizes the procedural history
of the parenting time orders issued by Judges Colin and
Truglia, as well as the details of Judge Colin’s January
29, 2018 order. I agree that the construction of the two
orders are questions of law for the court and that our
standard of review is plenary. I also agree that in
determining whether Judge Truglia’s 2019 order consti-
tuted a modification or a clarification of Judge Colin’s
2018 order, it is appropriate to examine the practical
effect of one order on the other. In that regard, I also
agree that ‘‘[t]he determinative factor is the intention
of the court as gathered from all parts of the [order or]
judgment. . . . Effect must be given to that which is
clearly implied as well as to that which is expressed.
. . . The [order or] judgment should admit of a consis-
tent construction as a whole.’’ (Internal quotation marks
omitted.) Lawrence v. Cords, 165 Conn. App. 473, 485,
139 A.3d 778, cert. denied, 322 Conn. 907, 140 A.3d
221 (2016).
In his 2018 order, Judge Colin found that it was ‘‘in
the best interests of this child for his parent to accom-
pany him on air travel, whenever possible, unless emer-
gency circumstances arise that would cause the child
to miss entirely his alternate weekend parenting time
with the plaintiff.’’ The majority accurately emphasizes
the ‘‘emergency circumstances’’ language in the finding.
Likewise, the majority emphasizes that portion of Judge
Colin’s order finding that the ‘‘nanny or driver who
testified in court are reasonable substitutes to step in,
on an emergency and limited basis only, to accompany
the child to/from Florida.’’
On the basis of these findings, the majority concludes
that the exception allowing the nanny or the driver to
accompany the child applied only in emergency circum-
stances and that Judge Truglia’s 2019 order simply made
that clear. Considering Judge Colin’s 2018 order as a
whole, however, I see it as allowing accompaniment
by the nanny or the driver in circumstances beyond
emergencies. There is a thread through Judge Colin’s
findings and his ultimate order demonstrating the
court’s intention to foster the development of a father/
son relationship between the plaintiff and his child. The
court observed that the original order1 resulted in the
plaintiff missing some parenting time. The court further
noted the importance to the young child of regular
and consistent parenting time with his father. At the
conclusion of its findings, the court emphasized the
importance of flexibility and trust in a coparenting rela-
tionship and encouraged the defendant to trust the
plaintiff to make the decision to have the nanny or the
driver substitute for him during his parenting time ‘‘in
the limited circumstances contemplated by this deci-
sion (health, work or other family related emergency
or commitment).’’ Likewise, the actual order entered
by the court provides: ‘‘[I]n the event that the [plaintiff]
is unable to travel by air with the child for his weekend
or holiday parenting time due to a health/work/other
family emergency or commitment, then he shall imme-
diately so notify the [defendant] in writing and by phone
of the circumstances and who will be traveling with
the child . . . . It seems unlikely that these types of
emergencies or commitments will frequently arise.’’
(Emphasis added.)
The majority construes Judge Truglia’s 2019 order as
a clarification of Judge Colin’s 2018 order, concluding:
‘‘[T]he 2018 order did not provide a broad exception
for any work, health or family commitment, but rather
one for emergencies which may occur in limited circum-
stances.’’ This construction seems to me to be at odds
with the actual language of Judge Colin’s order, the
parties’ understanding of that order, and, most import-
antly, the best interest of the minor child. Accordingly,
I respectfully dissent.
In examining Judge Colin’s 2018 order, a reasonable
first step is to look at the meaning of the words that
he used in his order, namely, ‘‘emergency’’ and ‘‘commit-
ment.’’ ‘‘Emergency’’ is defined as ‘‘an unforeseen com-
bination of circumstances or the resulting state that
calls for immediate action’’; Merriam-Webster’s Colle-
giate Dictionary (11th Ed. 2003) p. 407; while ‘‘commit-
ment’’ is defined as ‘‘an agreement or pledge to do
something in the future.’’ Id., p. 250. Therefore, emer-
gencies are unforeseen and require immediate action
whereas commitments are promises of future conduct.
The terms describe entirely different types of situations,
and Judge Colin provided for both in his order.
In his motion to modify, the plaintiff sought unfet-
tered ability to have the child’s nanny or his driver
accompany the child on air travel. Judge Colin’s order
did not go that far, but, as written, it was not limited
only to emergencies. As previously discussed, the order
clearly contemplated an exception, albeit to be invoked
infrequently, for commitments as well. Judge Truglia
conflated these two separate exceptions in his order,
in which he states: ‘‘[Judge Colin’s order] states unam-
biguously that the [plaintiff] will accompany the child
on airline flights, not the nanny or driver, unless he is
unable to ‘due to a health/work/other family emer-
gency.’ There was no emergency and therefore no
exception over [the dates listed in the contempt
motion].’’ By limiting the exception to emergencies
only, Judge Truglia failed to consider the alternative
exception for designated commitments that is plainly
part of the order. Based on the defendant’s motion for
contempt, it is evident that the parties understood Judge
Colin’s order as applying to nonemergency situations.
The defendant’s motion repeatedly makes reference to
various instances in which the plaintiff asserted a ‘‘work
conflict’’ or ‘‘work commitment’’ as a reason not to
accompany the child on air travel. The defendant’s
assertion, and basis for the motion for contempt, was
not that these instances did not qualify as emergencies
but, rather, that these work conflicts were either (1)
not on Sunday travel days, or (2) related to parenting
time scheduled months in advance. This interpretation
was in accord with the language of the order that pro-
vided for a commitment exception, as previously dis-
cussed. Moreover, this interpretation was shared by
both the plaintiff’s lawyer and the court-appointed
guardian ad litem who, as noted by Judge Truglia,
advised the plaintiff that his conduct was in compliance
with Judge Colin’s order.
Our Supreme Court has observed that ‘‘a modification
is defined as [a] change; an alteration or amendment
which introduces new elements into the details, or can-
cels some of them, but leaves the general purpose and
effect of the subject-matter intact. . . . Conversely, to
clarify something means to free it from confusion. . . .
Thus, the purpose of a clarification is to take a prior
statement, decision or order and make it easier to
understand. Motions for clarification, therefore, may be
appropriate where there is an ambiguous term in a
judgment or decision . . . but, not where the movant’s
request would cause a substantive change in the
existing decision.’’ (Citations omitted; internal quota-
tion marks omitted.) In re Haley B., 262 Conn. 406, 413,
815 A.2d 113 (2003).
By restricting the exception to emergencies only,
Judge Truglia cancelled the commitment aspect of the
order. This was a substantive change and a modification
of Judge Colin’s order. It was not a clarification. As the
majority emphasizes, clarification is appropriate when
there is an ambiguous term in a judgment or decision.
See id. Indeed, the case cited by the majority, Perry v.
Perry, 130 Conn. App. 720, 24 A.3d 1269 (2011), is just
such a case. In Perry, the parties had agreed that the
father would have visitation with the minor children
every other weekend, but, due to a scrivener’s error, the
judgment provided that the father would have visitation
every weekend. Id., 722. When the error was brought
to the attention of the trial court, the judgment was
clarified to reflect every other weekend visitation. Id.,
723. On appeal, this court noted the ambiguities in the
judgment and rejected the father’s claim that the clarifi-
cation was, in fact, an improper modification. Id., 726–
27. Likewise, in Bauer v. Bauer, 308 Conn. 124, 126, 60
A.3d 950 (2013), the parties had agreed to split equally
the defendant’s pension. In its memorandum of deci-
sion, however, the trial court did not enter any orders
regarding the pension. Id., 127. Our Supreme Court
ruled that a subsequent order requiring the defendant
to split his pension with the plaintiff constituted a clari-
fication of the judgment, as opposed to a modification.
Id., 129.
On the other hand, where a subsequent order causes a
substantive change in an earlier order, such subsequent
order modifies rather than clarifies the earlier order.
See Perry v. Perry, supra, 130 Conn. App. 726; see also
In re Haley B., supra, 262 Conn. 414 (holding that trial
court’s ruling decreasing visitation from once per week
to once per month constituted modification of original
decision); Almeida v. Almeida, 190 Conn. App. 760,
768, 213 A.3d 28 (2019) (holding that trial court’s order
expanding defendant’s obligation regarding property
transfer from quitclaiming his interest to taking steps
to ensure that plaintiff acquired 100 percent interest in
property amounted to improper modification of marital
dissolution judgment).
Judge Colin’s 2018 order provided the plaintiff with
the ability, under certain nonemergency conditions, to
have the child’s nanny or his driver accompany the
minor child on air travel. Judge Truglia’s order took
that away, and, in so doing, Judge Truglia modified
Judge Colin’s order.2 Construed as a modification, Judge
Truglia’s order was improper because it contained no
findings as to the best interests of the minor child. It
is well established that in ruling on a motion to modify
visitation, ‘‘the trial court shall be guided by the best
interests of the child . . . .’’ (Internal quotation marks
omitted.) Balaska v. Balaska, 130 Conn. App. 510, 515–
16, 25 A.3d 680 (2011); see Stahl v. Bayliss, 98 Conn.
App. 63, 68, 907 A.2d 139 (‘‘[i]t is statutorily incumbent
upon a court entering orders concerning . . . visita-
tion or a modification of such order to be guided by
the best interests of the child’’ (internal quotation marks
omitted)), cert. denied, 280 Conn. 945, 912 A.2d 477
(2006); see also Kelly v. Kelly, 54 Conn. App. 50, 57,
732 A.2d 808 (1999) (holding that trial court improperly
granted motion to modify visitation without hearing
and evidence concerning children’s best interests).
In the present case, the trial court made no findings
regarding the best interests of the child, nor did it
receive any evidence from the guardian ad litem. This
is significant because the more restrictive order entered
by Judge Truglia may or may not be in the child’s best
interests. The majority notes the comment by Judge
Truglia that, given the plaintiff’s responsibilities, to con-
strue Judge Colin’s order as including commitments
would render his order completely meaningless. In my
view, to address his concern regarding the ‘‘commit-
ment’’ language in the order, Judge Truglia should have
advised the parties that he was considering modifying
the order and conducted a hearing at which the parties
and guardian ad litem could testify, and, after which,
the court could make findings as to what was in the
best interests of the child. It is not inconceivable that,
following such a hearing, the judge might be persuaded
that the ‘‘commitment’’ exception did not render Judge
Colin’s order meaningless, but, rather, represented the
judge’s effort to foster a meaningful and nurturing rela-
tionship between this young boy and his busy father
who lives 1300 miles away.
Because such a hearing did not take place, I respect-
fully dissent.
1
That order provides in relevant part that, ‘‘[u]nless the parties otherwise
agree in writing, a parent shall accompany the minor child on any airline
travel.’’
2
I agree that the plaintiff pushed the limits of Judge Colin’s 2018 order—
possibly beyond its intended scope. Nevertheless, if, following the hearing
on the defendant’s contempt motion, Judge Truglia had ordered that only
commitments on travel days counted as an exception, that would have
constituted a clarification. Judge Truglia’s ruling, however, went much fur-
ther and eliminated the commitment exception entirely. This, in my view,
constitutes a modification.