Hurtado v. Hurtado

541 A.2d 873, 14 Conn. App. 296, 1988 Conn. App. LEXIS 161
CourtConnecticut Appellate Court
DecidedMay 3, 1988
Docket4749
StatusPublished
Cited by24 cases

This text of 541 A.2d 873 (Hurtado v. Hurtado) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hurtado v. Hurtado, 541 A.2d 873, 14 Conn. App. 296, 1988 Conn. App. LEXIS 161 (Colo. Ct. App. 1988).

Opinion

Dupont, C. J.

The defendant wife appeals from the judgment rendered in this fully contested dissolution action, challenging the award of custody of the parties’ two minor children to the plaintiff husband and the subsequent denial of her request to modify the custody order. The plaintiff cross appeals, challenging the trial court’s distribution of the parties’ assets.

The court dissolved the parties’ marriage and awarded sole custody of their minor children to the plaintiff, with reasonable visitation rights in the defendant. The court did not award periodic alimony to either party, but ordered the defendant to pay support in the amount of $50 per week for each minor child. In dividing the parties’ assets upon dissolution, the trial court awarded two residential properties to the defendant, and ordered the defendant to pay to the plaintiff $25,000 for his interest in the real property. The defendant subsequently filed a motion to modify the custody order, alleging a substantial change of circumstances arising from the plaintiffs removal of the minor children from the United States. The trial court denied the defendant’s motion to modify on the grounds that the parties’ minor children were no longer in this jurisdiction, that any modification order that it might issue [298]*298would be impossible to enforce, and that the defendant failed to notify the plaintiff of the modification proceedings.

The defendant has raised three claims of error on appeal. She argues that the trial court erred in relying on a family relations study and on the testimony of a family relations officer, both of which incorporated hearsay statements of a psychiatrist, and that she was denied her right to due process of law in that she was hampered in the presentation of her testimony at trial because of her alleged difficulties in speaking the English language. She also claims that the court erred in concluding that custody to the plaintiff was in the best interests of the parties’ minor children. In an amended appeal, the defendant claims that the trial court erred in denying her motion to modify the order of custody. The plaintiff, in his cross appeal, argues that the trial court erred in its distribution of the parties’ assets by awarding both residential properties, which property constituted the parties’ sole real estate, to the defendant while awarding sole custody of the minor children to the plaintiff. We find no error on the appeal, error on the amended appeal, and no error on the cross appeal.

I

We first address the evidentiary issue raised by the defendant that the trial court erred in relying on the testimony of a family relations officer and on a report prepared by him and accepted into evidence,1 both of which were based, in part, on the conclusions of a non-testifying psychiatrist. We are unable to review this claim on the merits because it was not properly preserved for appellate review.

[299]*299The defendant avers in her brief that her counsel properly “objected to any references to testimony about [the psychiatrist’s] report and to any reliance by the court on the family relations study which was based on the [psychiatrist’s] report.” The defendant has neglected, however, to indicate which pages of the transcript reflect such objections.2

Furthermore, Practice Book § 4185 provides in pertinent part that an appellate court “shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial.” At the time that the family relations report was proffered into evidence, the defendant failed to raise distinctly the claim she now makes on appeal and did not perform all of the procedural prerequisites mandated in § 288.3

The defendant, a native of Ecuador who has lived in the United States for the past twenty years, next claims that she was denied due process of law because of her “language problem.” The defendant’s specific claim is that although her English is “adequate for normal situations,” it “was totally inadequate” for the purpose of a custody trial and, therefore, “she was highly prejudiced by her inability to express herself clearly to the [300]*300court.” The defendant did not request an interpreter at the time of trial, nor did she raise the issue of her language problem at any time during the trial. The defendant, however, requests review of her claim under the doctrine set forth in State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). She argues that she was deprived of a fundamental constitutional right and a fair trial. Implicit in the seeking of such a review is the belief that the Evans doctrine applies to civil cases. Based upon our analysis of State v. Evans, supra, itself and more recent Connecticut cases, we conclude that it does. See Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 716, 535 A.2d 799 (1988); Marsh, Day & Calhoun v. Solomon, 204 Conn. 639, 647-48, 529 A.2d 702 (1987); Mazur v. Blum, 184 Conn. 116, 120 n.5, 441 A.2d 65 (1981); State v. Evans, supra;4 Page v. Welfare Commissioner, 170 Conn. 258, 267, 365 A.2d 1118 (1976); see also Texaco, Inc. v. Golart, 206 Conn. 454, 460, 538 A.2d 1017 (1988). In this case, however, although the defendant’s claim on its face implicates a fundamental constitutional claim, that of due process, the record, when viewed in a limited way, does not support the claim. The defendant has simply characterized her claim as constitutional and it deserves no review. State v. Thurman, 10 Conn. App. 302, 306-307, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987).

The defendant’s third claim of error is that the trial court erred in awarding custody to the plaintiff father in contravention of the minor children’s best interests. We disagree.

Our standard of review in domestic relations cases is a very narrow one. “We will not reverse a trial [301]*301court’s rulings with regard to custody and financial orders unless the court incorrectly applied the law or could not reasonably have concluded as it did. Timm v. Timm, 195 Conn. 202, 210, 487 A.2d 191 (1985).” O’Neill v. O’Neill, 13 Conn. App. 300, 302, 536 A.2d 978 (1988).

Pursuant to General Statutes § 46b-56 (b), in making a determination of custody, the governing standard is the best interests of the child. Yontef v. Yontef, 185 Conn. 275, 282, 440 A.2d 899 (1981). In the present case, our review of the trial court’s lengthy and well reasoned memorandum of decision concerning the issue of custody indicates that the trial court correctly applied this standard to the evidence properly before it.

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Bluebook (online)
541 A.2d 873, 14 Conn. App. 296, 1988 Conn. App. LEXIS 161, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hurtado-v-hurtado-connappct-1988.