Butler v. Butler

859 A.2d 26, 271 Conn. 657, 2004 Conn. LEXIS 462
CourtSupreme Court of Connecticut
DecidedNovember 2, 2004
DocketSC 17153
StatusPublished
Cited by2 cases

This text of 859 A.2d 26 (Butler v. Butler) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Butler v. Butler, 859 A.2d 26, 271 Conn. 657, 2004 Conn. LEXIS 462 (Colo. 2004).

Opinion

Opinion

KATZ, J.

The plaintiff, Laura B. Gary, formerly Laura B. G. Butler, appeals1 from the judgment of the trial court that terminated an Illinois order of joint custody and awarded sole custody of her two minor children to the defendant, Piers J. R. Butler. The plaintiff claims that the trial court improperly failed to apply the clear and convincing burden of proof required to modify joint custody under the custody provisions of the Illinois Marriage and Dissolution of Marriage Act; 750 Ill. Comp. Stat. Ann. § 5/601 et seq. (West 1999); and that its decision to award sole custody to the defendant was contrary to the manifest weight of the evidence. We conclude that the trial court applied the appropriate burden of proof and that its decision awarding sole custody to the defendant was not an abuse of discretion. Accordingly, we affirm the judgment.

The trial court’s comprehensive memorandum of decision sets forth the following tortured histoiy of postdissolution proceedings between the parties and the pertinent facts leading to its decision to terminate the joint custody agreement and award custody of the parties’ two minor children to the defendant. An Illinois court dissolved the marriage of the parties on December [660]*6606, 2000, incorporating into its judgment a marital settlement agreement. That settlement included a joint parenting agreement (parenting agreement) governing the rights and responsibilities of the parties with respect to their two minor children, Alexa, bom on February 16,1997, and Morgan, bom on May 14,1999. The parties stipulated in the parenting agreement that each was “a fit and proper person to be the custodial parent of their minor children.” In accordance with that stipulation, the parties agreed to have joint legal custody of Alexa and Morgan and joint decision-making authority over all major decisions affecting their health, education and extracurricular activities, religious training and general welfare. The parenting agreement designated the plaintiff as the primary custodial parent for the children, with the defendant to have visitation on alternate weekends from 5:30 p.m. on Friday until 5:30 p.m. on Sunday, and one evening each week for dinner. The children were to spend equal time with each party for holidays, birthdays and summer vacations. Finally, the parenting agreement included a clause providing for the presence of a nanny during all visitation with the defendant.2

Approximately two weeks after the date of the dissolution, the plaintiff moved for an emergency order for supervised visitation and other relief. She then filed an emergency motion to suspend the defendant’s visitation [661]*661rights, alleging that he had committed sexual improprieties toward the children. Following an evidentiary hearing on April 21, 2001, an Illinois court found that the defendant had not endangered the children during unsupervised visitation and, accordingly, granted the defendant’s motion for a directed verdict. The court also issued an order that, because the parties had relocated to Connecticut in late 2000, this state was the appropriate forum for all future litigation.

Since that time, through numerous pleadings addressed largely to issues of custody and visitation, the plaintiff unsuccessfully has sought the intervention of the Illinois court, attempted to change the venue from the judicial district of Waterbury, where the foreign matrimonial judgment had been certified, to the judicial district of Stamford and sought the intervention of the London High Court while the children were in England visiting the defendant’s family. Thereafter, the plaintiff sought an ex parte order seeking sole custody of the children as well as an order to restrain the defendant from contacting her or the children. The trial court, Axelrod, J., denied ex parte relief, but scheduled a hearing on those matters as well as other motions directed principally at the parties’ differing interpretations of their parenting agreement.

The trial court, Leheny, J., resolved the disputes relating to the interpretation of the agreement, concluding, inter alia, that the agreement permitted the defendant to have visitation without a nanny being present if none were available. The court then turned to the only remaining issue, the plaintiffs motion to modify the agreement to award her sole custody of the children. That motion was accompanied by the plaintiffs affidavit alleging that the defendant’s actions seriously had endangered the children’s physical, mental and emotional well-being. Specifically, the plaintiff claimed that the defendant had exposed Alexa to pornography on [662]*662his computer, that he had slept with her in his bed during visitation and that, according to the nanny, Alexa had engaged in inappropriate conduct when bathing with her sister. Also before the court was the defendant’s motion seeking sole custody,3 which alleged that the plaintiff improperly had denied him access to his children and that she no longer was capable of parenting in accordance with the children’s best interests.

After a lengthy evidentiary hearing conducted over several days, the trial court issued a comprehensive memorandum of decision, setting forth factual findings regarding the parties’ allegations and their conduct with respect to the children and the parenting agreement. As an initial matter, the trial court traced the history of the plaintiffs allegations regarding the defendant’s inappropriate behavior around Alexa and determined that the plaintiffs allegations of abuse were unfounded. According to the testimony of various witnesses, Alexa had been examined by a pediatrician and a therapist, both of whom then reported their concerns to the department of children and families (department), which in turn engaged the services of a forensic team to conduct interviews in the presence of the state police. As noted by the trial court, the team found no evidence of sexual abuse and could not confirm that the defendant had engaged in any inappropriate sexual behavior with Alexa.4 The trial corut found that Alexa’s responses to questioning by her pediatrician and therapist had [663]*663been the result of the plaintiffs recitation of events, rather than Alexa’s own recall. Although the trial court found that “Alexa [had] witnessed something while with her father, which she perceived to be, ‘naked men and women kissing peepees and turning somersaults,’ ” the court could not determine the source of the image— that is, whether Alexa had seen it on television or on the defendant’s computer.

Turning to the defendant’s allegations regarding the plaintiffs behavior, the court found that the plaintiff had subverted the joint parenting agreement in numerous ways. Pursuant to the agreement, the parties had agreed that they would relocate from Illinois to the Woodbury and Litchfield areas of Connecticut. Nevertheless, after the defendant had purchased a home in Woodbury, the plaintiff rented a house forty miles away in New Canaan, which resulted in interference with the defendant’s court-ordered midweek visitation with the children. The plaintiff also had interfered with the communication necessaiy to facilitate visitation by failing to give the defendant her cell phone number and to timely review electronic mail (e-mail). The court highlighted numerous specific occasions when the plaintiff had hampered the defendant’s access to the children both by telephone and in person5

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Gianetti v. Connecticut Newspapers Publishing Co.
44 A.3d 191 (Connecticut Appellate Court, 2012)
R.E. v. B.B.
2011 UT 51 (Utah Supreme Court, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
859 A.2d 26, 271 Conn. 657, 2004 Conn. LEXIS 462, Counsel Stack Legal Research, https://law.counselstack.com/opinion/butler-v-butler-conn-2004.