Ozkan v. Ozkan

556 A.2d 628, 18 Conn. App. 73, 1989 Conn. App. LEXIS 89
CourtConnecticut Appellate Court
DecidedApril 4, 1989
Docket6684
StatusPublished
Cited by6 cases

This text of 556 A.2d 628 (Ozkan v. Ozkan) 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
Ozkan v. Ozkan, 556 A.2d 628, 18 Conn. App. 73, 1989 Conn. App. LEXIS 89 (Colo. Ct. App. 1989).

Opinion

Norcott, J.

The plaintiff appeals from the trial court’s decision that it lacked jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA), General Statutes §§ 46b-90 through 46b-119, in his action for modification of the custody of the parties’ son.

The marriage of the plaintiff and the defendant was dissolved in Connecticut on July 1, 1985. The crucial issue in the case was the custody of the parties’ son. The court granted joint custody to the parents with [75]*75physical custody to the defendant mother. The defendant then moved with the child to Detroit, Michigan, to reside with her parents. The plaintiff exercised his visitation rights when he was able, despite his work schedule and the considerable distance between his home in Waterbury and the child’s home in Detroit.

During the late summer of 1987, by mutual agreement, the defendant left the child with the plaintiff for six weeks while she visited relatives in Yugoslavia. On October 12, 1987, after the defendant’s return, the plaintiff, with whom the child continued to reside, filed a motion for a change of custody, claiming that it was in the child’s best interest to continue receiving medical and psychological treatment in Connecticut. When the hearing on custody was scheduled for November 2, 1987, the defendant arranged to pick up the child on October 17,1987, to return him to Detroit. In response to the mother’s plans, the plaintiff sought an ex parte order of temporary custody citing, as reasons for the requested order, the imminent psychological and physical danger to the child if he were to return to Michigan. On October 16, 1987, the court, Lavery, J., granted the ex parte order until the custody hearing on November 2, 1987.

On October 19 and 22,1987, the court, Mihalakos, J., conducted a hearing on whether the ex parte order should be continued. On November 3,1987, the court, finding that there was no basis for the continuation of the ex parte order, dissolved the order and further held that Connecticut courts lacked jurisdiction, under the provisions of the UCCJA, to modify the original custody order.1 The plaintiff did not request an articula[76]*76tion of the court’s decision or move for a stay of execution. The defendant returned with the child to Michigan, where they continue to reside.

On December 14, 1987, the trial court denied the plaintiff’s motion to open. The plaintiff appeals only the trial court’s decision that it lacked jurisdiction; he does not appeal the ruling dissolving the ex parte order. The plaintiff argues that the trial court erred in concluding that “[n]one of the requirements listed in General Statutes § 46b-93 (UCCJA) applies in the instant case in order to vest the court with jurisdiction.” We agree with the plaintiff.

General Statutes § 46b-93 establishes the general class of custody cases within the trial court’s jurisdiction. Grynkewich v. McGinley, 3 Conn. App. 541, 544, 490 A.2d 534 (1985). In order to achieve interstate uniformity in custody matters, the UCCJA “limits custody jurisdiction to the state where the child has his home or where there are other strong contacts with the child and his family.” Unif. Child Custody Jurisdiction Act. Commissioner’s Prefatory Note, 9 U.L.A. 114 (1979).

In this case, it is clear from the record that the plaintiff sought jurisdiction under the provisions of General Statutes § 46b-93 (a) (2) (A) and (B), (3) (B), and (4) (A) and (B) and presented his case in terms of the best inter[77]*77est of the child.2 The plaintiff argues that, at the plenary hearing on the question of whether the court had jurisdiction to make a child custody determination under General Statutes § 46b-93, he proved that he and the child had a significant connection with Connecticut and that he produced substantial evidence concerning the child’s present and future care, protection and personal relationships. Accordingly, the plaintiff argues that he demonstrated pursuant to the statute that it was in the child’s best interest that Connecticut exercise jurisdiction.

The trial court denied jurisdiction on the basis that no provision of General Statutes § 46b-93 applied to vest it with jurisdiction. “It is amply clear that a find[78]*78ing as to whether jurisdiction exists under any provision of General Statutes § 46b-93 rests upon a determination of fact by the trial court.” Grynkewich v. McGinley, supra, 546. “ ‘The trial court’s findings are binding upon the court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole.’ ” Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 473, 542 A.2d 692 (1988), quoting Edens v. Kole Construction Co., 188 Conn. 489, 494, 450 A.2d 1161 (1982); Shultz v. Barker, 15 Conn. App. 696, 700, 546 A.2d 324 (1988). We conclude that the trial court’s factual finding, on which it based its ultimate conclusion of law, is not adequately supported by the record and is therefore clearly erroneous.

Our review of the record reveals that there was ample evidence presented to the court to support a conclusion that relevant provisions of General Statutes § 46b-93 applied to the case. Specifically, the plaintiff showed that he and the child had a significant connection to Connecticut. At the time of the October hearing, the child had been living with the father for several months and was enrolled on a continuing basis at the Country Garden Preschool in Waterbury. Additionally, the child had been under the professional care of a clinical psychologist for two months for treatment of emotional problems.

Further, the record is clear that there was substantial evidence available in this state concerning the child’s present and future care and personal relationships. Leah Price, the child’s clinical psychologist, Deborah Platt, the director of the preschool, and the plaintiffs immediate relatives all testified to the child’s emotional improvement while in Connecticut and to the importance of continuing the development of positive personal relationships between the child and others in his present setting. The plaintiff also testified that the [79]*79child, who was diagnosed in Michigan as having neu-rofibromatosis, is being treated by a number of medical specialists in Connecticut and that he and his son have become involved with a neurofibromatosis foundation to assist with the child’s ongoing physical problems related to the disease. On the basis of this evidence, we conclude that the trial court had jurisdiction to make a child custody determination because the plaintiff presented sufficient evidence to meet the requirements of 46b-93 (a) (2) (A) and (B).3

Having concluded that the court had jurisdiction, we must remand the case to the trial court for further proceedings.

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Cite This Page — Counsel Stack

Bluebook (online)
556 A.2d 628, 18 Conn. App. 73, 1989 Conn. App. LEXIS 89, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ozkan-v-ozkan-connappct-1989.