Opinion
HENNESSY, J.
The plaintiff, Christopher B. Kennedy, appeals from the judgment of the trial court modifying the custody of the parties’ minor children and from the court’s finding of contempt. On appeal, the plaintiff claims that the court improperly (1) denied his request for a continuance and (2) granted the motion filed by the defendant, Leanna L. Kennedy, to modify the award of custody. We affirm in part and reverse in part the judgment of the trial court.
The plaintiff and the defendant were manied in Connecticut in 1988. Three minor children, a boy and two girls, were bom to the parties during the years 1988, 1993 and 1996. The parties’ marriage was dissolved on May 7, 2002. Pursuant to a separation agreement, the terms of which the court incorporated into the judgment of dissolution, the parties were to maintain joint legal and physical custody of their minor children as well as a shared parenting plan. In accordance with the shared parenting plan, the children were to spend approximately 50 percent of their time with each parent. On June 18, 2002, the defendant filed a motion for a modification of custody and for support. The defendant sought sole custody of the children because, inter alia, “the shared parenting plan is not in the best interests of the [108]*108children.” The defendant filed a motion for contempt on December 17,2002, alleging that the plaintiff wilfully had violated a court order directing him to provide the children with telephone access to her while in his care.
Following an evidentiary hearing, the court granted both of the defendant’s motions. The defendant thereafter was awarded sole custody “subject to reasonable rights of visitation to the plaintiff father.”1 The plaintiff was found in contempt of court for “wilfully [disregarding] the May 7, 2002 court order regarding telephone access.” Additional facts will be provided as necessary.
I
The plaintiff first claims that the court improperly denied his request for a continuance to retain an attorney.2 The following facts and procedural history are necessary to the resolution of his claim. On June 10, 2002, the defendant mailed a copy of the motion for modification, dated June 11, 2002, to the plaintiffs then attorney, James L. Katz. On June 25, 2002, the parties agreed to have the issue of custody referred to a family relations officer. That agreement was entered as a court order. On December 2, 2002, the evaluation was completed by the family relations officer and filed with the court. On December 3, 2002, the plaintiff filed a pro se [109]*109appearance in lieu of Katz. On December 17, 2002, the defendant filed a motion for contempt with the court and mailed a copy to the plaintiffs home address. The motion to modify was scheduled for the court’s short calendar on January 6, 2003, and, at the short calendar, scheduled for a special hearing on February 4, 2003.
The plaintiff did not appear at short calendar on January 6, 2003, but was present at the special hearing on February 4, 2003, and represented to the court that he had received notice of the special hearing approximately one week before that date. On February 4, 2003, the defendant informed the court that the motion to modify custody had been reclaimed subsequent to the completion of the family relations evaluation, that the plaintiff had been sent copies of the reclaimed motion and that he had been told at the family relations meeting that the defendant intended to pursue the motion. The defendant also told the court that she had marled copies of the short calendar- motion to the plaintiff and had informed him that the motion would be pursued on January 6, 2003.
At the February 4, 2003 hearing, the plaintiff requested a continuance in part because he (1) “did not have notice of the motions” at issue and (2) sought time to retain an attorney to represent him. We must analyze separately whether it was improper for the court to deny his request for a continuance as to each of the motions heard on February 4, 2003. At the outset, we set forth our standard of review of a court’s decision to deny a request for a continuance. “A motion for continuance is addressed to the discretion of the trial court, and its ruling will not be overturned absent a showing of a clear abuse of that discretion. . . . The burden of proof is upon the party claiming an abuse of discretion. . . . We are especially hesitant to find an abuse of discretion when the motion is made on the day of trial. . . . Every reasonable presumption in favor of [110]*110the proper exercise of the trial court’s discretion will be made.” (Citations omitted.) Tufano v. Tufano, 18 Conn. App. 119, 123, 556 A.2d 1036 (1989).
A
On the basis of the foregoing standard, we conclude that in regard to the motion to modify custody, it was not an abuse of the court’s discretion to deny the plaintiffs motion for a continuance.3 The plaintiff was represented by counsel when the motion to modify custody was filed on June 18, 2001. On December 3, 2002, just two months prior to the hearing in question, the plaintiff filed a pro se appearance in lieu of that attorney. Then, on the date of the hearing, the plaintiff requested time to obtain representation. The court stated that the matter had been pending for a considerable amount of time and that the defendant was prepared and ready to proceed. We therefore cannot conclude that it was an abuse of the court’s discretion to deny the plaintiffs request for a continuance on the motion to modify custody postjudgment.
B
The denial of the plaintiffs request for a continuance to retain an attorney for assistance on the motion of civil contempt raises different concerns.
[111]*111Practice Book § 25-63 provides a right to counsel in family civil contempt proceedings.4 We have held that a court’s failure to advise a party of the right to counsel in a contempt proceeding in which he faces potential incarceration, and in the event he is indigent, to court-appointed counsel, is fatal to the finding of contempt and any order related thereto. See Emerick v. Emerick, 28 Conn. App. 794, 800, 613 A.2d 1351, cert. denied, 224 Conn. 915, 617 A.2d 171 (1992). Moreover, a waiver of a right to counsel “should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear on the record.” (Internal quotation marks omitted.) Id., 799.5 The following additional facts are relevant.
[112]*112The plaintiff requested counsel numerous times at the outset of the hearing and renewed his request during the proceeding as well. We note that although the court found that notice of the hearing was proper, the plaintiff seemed unaware that the contempt motion was being heard on February 4, 2003.6 Moreover, the court did not advise him of his right to counsel in a civil contempt proceeding at any point in the hearing. In addition, the court did not and could not have found a waiver of that right on the record.7 Moreover, the court did not remove the threat of incarceration until it made the decision to find the plaintiff in contempt.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion
HENNESSY, J.
The plaintiff, Christopher B. Kennedy, appeals from the judgment of the trial court modifying the custody of the parties’ minor children and from the court’s finding of contempt. On appeal, the plaintiff claims that the court improperly (1) denied his request for a continuance and (2) granted the motion filed by the defendant, Leanna L. Kennedy, to modify the award of custody. We affirm in part and reverse in part the judgment of the trial court.
The plaintiff and the defendant were manied in Connecticut in 1988. Three minor children, a boy and two girls, were bom to the parties during the years 1988, 1993 and 1996. The parties’ marriage was dissolved on May 7, 2002. Pursuant to a separation agreement, the terms of which the court incorporated into the judgment of dissolution, the parties were to maintain joint legal and physical custody of their minor children as well as a shared parenting plan. In accordance with the shared parenting plan, the children were to spend approximately 50 percent of their time with each parent. On June 18, 2002, the defendant filed a motion for a modification of custody and for support. The defendant sought sole custody of the children because, inter alia, “the shared parenting plan is not in the best interests of the [108]*108children.” The defendant filed a motion for contempt on December 17,2002, alleging that the plaintiff wilfully had violated a court order directing him to provide the children with telephone access to her while in his care.
Following an evidentiary hearing, the court granted both of the defendant’s motions. The defendant thereafter was awarded sole custody “subject to reasonable rights of visitation to the plaintiff father.”1 The plaintiff was found in contempt of court for “wilfully [disregarding] the May 7, 2002 court order regarding telephone access.” Additional facts will be provided as necessary.
I
The plaintiff first claims that the court improperly denied his request for a continuance to retain an attorney.2 The following facts and procedural history are necessary to the resolution of his claim. On June 10, 2002, the defendant mailed a copy of the motion for modification, dated June 11, 2002, to the plaintiffs then attorney, James L. Katz. On June 25, 2002, the parties agreed to have the issue of custody referred to a family relations officer. That agreement was entered as a court order. On December 2, 2002, the evaluation was completed by the family relations officer and filed with the court. On December 3, 2002, the plaintiff filed a pro se [109]*109appearance in lieu of Katz. On December 17, 2002, the defendant filed a motion for contempt with the court and mailed a copy to the plaintiffs home address. The motion to modify was scheduled for the court’s short calendar on January 6, 2003, and, at the short calendar, scheduled for a special hearing on February 4, 2003.
The plaintiff did not appear at short calendar on January 6, 2003, but was present at the special hearing on February 4, 2003, and represented to the court that he had received notice of the special hearing approximately one week before that date. On February 4, 2003, the defendant informed the court that the motion to modify custody had been reclaimed subsequent to the completion of the family relations evaluation, that the plaintiff had been sent copies of the reclaimed motion and that he had been told at the family relations meeting that the defendant intended to pursue the motion. The defendant also told the court that she had marled copies of the short calendar- motion to the plaintiff and had informed him that the motion would be pursued on January 6, 2003.
At the February 4, 2003 hearing, the plaintiff requested a continuance in part because he (1) “did not have notice of the motions” at issue and (2) sought time to retain an attorney to represent him. We must analyze separately whether it was improper for the court to deny his request for a continuance as to each of the motions heard on February 4, 2003. At the outset, we set forth our standard of review of a court’s decision to deny a request for a continuance. “A motion for continuance is addressed to the discretion of the trial court, and its ruling will not be overturned absent a showing of a clear abuse of that discretion. . . . The burden of proof is upon the party claiming an abuse of discretion. . . . We are especially hesitant to find an abuse of discretion when the motion is made on the day of trial. . . . Every reasonable presumption in favor of [110]*110the proper exercise of the trial court’s discretion will be made.” (Citations omitted.) Tufano v. Tufano, 18 Conn. App. 119, 123, 556 A.2d 1036 (1989).
A
On the basis of the foregoing standard, we conclude that in regard to the motion to modify custody, it was not an abuse of the court’s discretion to deny the plaintiffs motion for a continuance.3 The plaintiff was represented by counsel when the motion to modify custody was filed on June 18, 2001. On December 3, 2002, just two months prior to the hearing in question, the plaintiff filed a pro se appearance in lieu of that attorney. Then, on the date of the hearing, the plaintiff requested time to obtain representation. The court stated that the matter had been pending for a considerable amount of time and that the defendant was prepared and ready to proceed. We therefore cannot conclude that it was an abuse of the court’s discretion to deny the plaintiffs request for a continuance on the motion to modify custody postjudgment.
B
The denial of the plaintiffs request for a continuance to retain an attorney for assistance on the motion of civil contempt raises different concerns.
[111]*111Practice Book § 25-63 provides a right to counsel in family civil contempt proceedings.4 We have held that a court’s failure to advise a party of the right to counsel in a contempt proceeding in which he faces potential incarceration, and in the event he is indigent, to court-appointed counsel, is fatal to the finding of contempt and any order related thereto. See Emerick v. Emerick, 28 Conn. App. 794, 800, 613 A.2d 1351, cert. denied, 224 Conn. 915, 617 A.2d 171 (1992). Moreover, a waiver of a right to counsel “should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear on the record.” (Internal quotation marks omitted.) Id., 799.5 The following additional facts are relevant.
[112]*112The plaintiff requested counsel numerous times at the outset of the hearing and renewed his request during the proceeding as well. We note that although the court found that notice of the hearing was proper, the plaintiff seemed unaware that the contempt motion was being heard on February 4, 2003.6 Moreover, the court did not advise him of his right to counsel in a civil contempt proceeding at any point in the hearing. In addition, the court did not and could not have found a waiver of that right on the record.7 Moreover, the court did not remove the threat of incarceration until it made the decision to find the plaintiff in contempt. We conclude, therefore, that the court abused its discretion by denying the plaintiffs request for a continuance to obtain counsel on the matter of contempt.
[113]*113II
The plaintiffs final claim is that the court improperly granted the defendant’s motion to modify custody, which he alleged was not supported by sufficient evidence to conclude that a substantial change in circumstances had occurred. We disagree.
The authority to render orders of custody and visitation is found in General Statutes § 46b-56, which provides in part: “(a) In any controversy before the Superior Court as to the custody or care of minor children . . . the court may at any time make or modify any proper order regarding . . . custody and visitation .... (b) In making or modifying any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the child . . . .” “Before a court may modify a custody order, it must find that there has been a material change in circumstance since the prior order of the court, but the ultimate test is the best interests of the child. . . . The sole question is whether the trial court abused its discretion in deciding that the best interests of the child would be served by [the modification]. The trial court [has] the advantage of observing the witnesses and the parties. Considerable evidence [normally is] presented concerning the activities of the parties since [the rendering of the original judgment]. In circumstances like these, whether the best interests of the [child] dictate a change of custody is left to the broad discretion of the trial court. ... A mere difference of opinion or judgment cannot justify the intervention of this court. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference.” (Internal quotation marks omitted.) Lambert v. Donahue, 78 Conn. App. 493, 505, 827 A.2d 729 (2003).
After reviewing the court’s oral decision, we conclude that the court stated that its orders were made in accor[114]*114dance with the aforementioned statutory criteria. The court specifically stated in relevant part that “there is no way the shared joint custody is working in the slightest, and the children are suffering as a result of that. The parties . . . are clearly unable to agree on matters that are affecting the children’s health, their education, their extracurricular activities, their visitation, their holidays.” The court further stated that “the joint custody system . . . [has] fallen apart” and attributed “the bulk of the reason why to [the plaintiff for] being inflexible, in putting [the] children in the middle and making [the] children pawns in this custody battle.” The court found that the parties’ relationship with one another was “hostile . . . deceitful . . . manipulative, and it is leading to a situation that is not fostering a healthy environment” for the children.8 We conclude, therefore, on the basis of our review of the record, that the court did not abuse its discretion when it concluded that it was in the best interest of the children that sole custody be awarded to the defendant.
The judgment is reversed only as to the finding of contempt and the case is remanded with direction to vacate the contempt finding. The judgment is affirmed in all other respects.
In this opinion the other judges concurred.