Morera v. Thurber

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HECTOR G. MORERA v. STEPHENIE C. THURBER
(AC 37040)
Gruendel, Sheldon and Schuman, Js.
Argued October 20, 2015—officially released January 5, 2016

(Appeal from Superior Court, judicial district of
Hartford, Bozzuto, J.)
Hector Morera, self-represented, the appellant
(plaintiff).
Opinion

GRUENDEL, J. The self-represented plaintiff, Hector
G. Morera, appeals from the judgment of the trial court
denying, in part, his request for leave to file postdissolu-
tion motions for modification and contempt. The plain-
tiff claims that the court (1) improperly denied his
request for leave to file a motion to modify certain
custody and parental access orders without conducting
a probable cause hearing pursuant to Practice Book
§ 25-26 (g), (2) abused its discretion in denying that
motion to modify, and (3) abused its discretion in deny-
ing his request for leave on two of the four claims
underlying his motion for contempt against the defen-
dant, Stephenie C. Thurber.1 We dismiss in part and
reverse in part the judgment of the trial court.
The record discloses the following undisputed facts.
The parties married in 2002, and two children were
born of the marriage. Following the subsequent break-
down of their marriage, the parties voluntarily entered
into a comprehensive separation agreement regarding
their finances that the court incorporated into its judg-
ment of dissolution. A trial followed on the issues of
child custody and access. By memorandum of decision
dated June 18, 2012, the court dissolved the parties’
marriage, finding that it had broken down irretrievably
without attributing fault to either party as to the cause.
The court awarded sole legal custody of the minor chil-
dren to the defendant and entered detailed parental
access orders.
Approximately one year later, the defendant filed a
motion to modify the existing parenting plan.2 The plain-
tiff filed an objection and various other motions in
response thereto. Following an evidentiary hearing, the
court concluded that a substantial change in circum-
stances warranted a modification to the parental access
orders.3 The court thus ordered that, henceforth, ‘‘[a]ll
access with the children by [the plaintiff] shall be as
directed and supervised by the Klingberg Institute until
written agreement of the parties with the input of Klin-
gberg’s experts or further order of the court.’’ In so
doing, the court expressly defined ‘‘access as any con-
tact with the children. All access shall be as directed
and supervised by the Klingberg Institute.’’ In addition,
the court ordered that ‘‘[n]either party shall file any
motion with this court without first seeking and receiv-
ing the permission of the presiding judge.’’
The plaintiff thereafter filed a request for leave to
file a motion for clarification with the court. In
response, the court issued a memorandum of decision
in which it clarified that it had ‘‘ordered more than
just professional supervised visitation for these children
with [the plaintiff]. The court intended, but did not
fully articulate, that a reunification program through
the Klingberg [Institute] take place. The court refers
the matter to Family Relations in order to implement
this order . . . .’’
On July 2, 2014, the plaintiff filed a request for leave
to file postdissolution motions for modification and
contempt, which were predicated primarily on the
defendant’s alleged interference in that reunification
process. The motion to modify asked the court, inter
alia, to ‘‘[r]estore joint legal custody to the [p]laintiff’’
and to ‘‘[r]estore visitation between the [p]laintiff and
both minor child . . . as outlined in [the court’s] June
18, 2012 [judgment of dissolution] orders.’’ The motion
also requested that the court hear argument on the
motion to modify in conjunction with argument on his
July 2, 2014 motion for contempt. In an accompanying
form, the plaintiff alleged that a material change of
circumstances arose from the fact that his ‘‘[e]ldest
minor child now exhibits fear of [him], which she has
never exhibited before.’’
That motion for contempt alleged four distinct viola-
tions of the court’s June 18, 2012 orders by the defen-
dant. Specifically, it alleged that the defendant violated
orders requiring (1) the defendant to notify the plaintiff
‘‘of any illness, accident or other circumstance seriously
affecting either child’s health or welfare’’; (2) the minor
children to ‘‘be afforded privacy for their telephone
conversations’’ with him; (3) the defendant not ‘‘to do
anything that may estrange the children’’ from him; and
(4) the defendant to ‘‘exchange e-mails twice weekly to
inform [him] of medical appointments, school projects,
class trips, extracurricular activities, and health or
behavioral issues involving the children.’’ On July 14,
2014, the defendant filed an objection to the plaintiff’s
request for leave to file the aforementioned motions.4
Two days later, the court issued notice of its decision
on the plaintiff’s request for leave. That notice stated:
‘‘The request for leave is partially granted. The plaintiff’s
motion for contempt dated July 2, 2014, only [the second
and fourth grounds] shall be scheduled for hearing on
short calendar. The request for leave as to all other
motions is denied.’’ The court subsequently issued an
articulation of that decision, in which it explained that
neither the first nor third ground alleged in the plaintiff’s
motion for contempt gave rise to a colorable claim
of contempt. The court also stated that the plaintiff’s
motion to modify ‘‘is completely devoid of any claim
that there has been a ‘substantial change in circum-
stances’ since the entry of the court’s last order . . . .
Even if the court were to assume all of [the motion’s]
allegations and assertions are true, it gives no rise to
a postjudgment motion to modify . . . in that, on its
face, the motion is legally insufficient.’’ From that judg-
ment, the plaintiff now appeals.
I
The plaintiff first contends that the court improperly
denied his request for leave to file his motion to modify
the existing parenting plan. He claims that the court
improperly decided that matter without first holding a
probable cause hearing, in contravention of the manda-
tory requirement of Practice Book § 25-26 (g). We agree.
The rules governing statutory construction apply
equally to statutes and rules of practice. Statewide
Grievance Committee v. Rozbicki, 219 Conn. 473, 480,
595 A.2d 819 (1991), cert. denied, 502 U.S. 1094, 112 S.
Ct. 1170, 117 L. Ed. 2d 416 (1992). The proper construc-
tion of a rule of practice presents a question of law
over which our review is plenary. Bojila v. Shramko,
80 Conn. App. 508, 514–15, 836 A.2d 1207 (2003).
As an appellate body, this court possesses ‘‘the
authority to determine whether the provisions of our
Practice Book are directory or mandatory.’’ Banks v.
Thomas, 241 Conn. 569, 587 n.19, 698 A.2d 268 (1997).
‘‘The test to determine whether a statute is mandatory
or directory is also applicable to rules of practice.’’
State v. Ocasio, 50 Conn. App. 748, 755 n.7, 718 A.2d
1018 (1998), rev’d on other grounds, 253 Conn. 375, 751
A.2d 825 (2000).
We therefore begin with the language of § 25-26 (g),
which provides in relevant part: ‘‘[U]pon or after entry
of a judgment or final order of custody and/or visitation
. . . the judicial authority may order that any further
motion for modification of a final custody or visitation
order shall be appended with a request for leave to file
such motion . . . . The specific factual and legal basis
for the claimed modification shall be sworn to by the
moving party or other person having personal knowl-
edge of the facts recited therein. If no objection to the
request has been filed by any party within ten days
of the date of service of such request on the other party,
the request for leave may be determined by the judicial
authority with or without hearing. If an objection is
filed, the request shall be placed on the next short calen-
dar, unless the judicial authority otherwise directs. At
such hearing, the moving party must demonstrate prob-
able cause that grounds exist for the motion to be
granted. . . .’’ (Emphasis added.)
The plain language of Practice Book § 25-26 (g) estab-
lishes that a hearing is mandatory when a timely objec-
tion to the request for leave has been filed, as
‘‘[d]efinitive words, such as must or shall, ordinarily
express legislative mandates of nondirectory nature.’’
(Internal quotation marks omitted.) Butts v. Bysiewicz,
298 Conn. 665, 676, 5 A.3d 932 (2010). As our Supreme
Court has observed, ‘‘[t]his court previously has recog-
nized the significance of the [drafter’s] choice in elect-
ing to choose shall or may in formulating a statutory
directive.’’ (Internal quotation marks omitted.) Cendant
Corp. v. Commissioner of Labor, 276 Conn. 16, 31,
883 A.2d 789 (2005). That court also has indicated that
‘‘words used in the Practice Book [are construed]
according to their commonly approved meaning.’’ Lo
Sacco v. Young, 210 Conn. 503, 507, 555 A.2d 986 (1989).
‘‘The word ‘must’ usually connotes a command or
requirement.’’ Id. ‘‘We have held other rules of practice
that employ the term ‘must’ or a similar term to be
mandatory.’’ Id. Accordingly, ‘‘[a]bsent an indication to
the contrary, the [drafter’s] choice of the mandatory
term ‘shall’ rather than the permissive term ‘may’ indi-
cates that the . . . directive is mandatory.’’ (Internal
quotation marks omitted.) Vargas v. Doe, 96 Conn. App.
399, 412, 900 A.2d 525, cert. denied, 280 Conn. 923, 908
A.2d 546 (2006).
Equally significant is the fact that Practice Book § 25-
26 (g) employs both ‘‘may’’ and ‘‘shall’’ in specifying
when a hearing on a request for leave is warranted.
‘‘[W]hen the [drafter] opts to use the words ‘shall’ and
‘may’ in the same statute, they ‘must then be assumed
to have been used with discrimination and a full aware-
ness of the difference in their ordinary meanings.’ ’’
Lostritto v. Community Action Agency of New Haven,
Inc., 269 Conn. 10, 20, 848 A.2d 418 (2004). Consistent
with that precedent, we must presume that this diction
was deliberate. Id.
Despite that ample authority, we nonetheless recog-
nize that ‘‘the use of the word shall, though significant,
does not invariably establish a mandatory duty.’’ (Inter-
nal quotation marks omitted.) Teresa T. v. Ragaglia,
272 Conn. 734, 744, 865 A.2d 428 (2005). ‘‘The test to
be applied in determining whether a statute is manda-
tory or directory is whether the prescribed mode of
action is the essence of the thing to be accomplished,
or in other words, whether it relates to a matter of
substance or a matter of convenience.’’ (Internal quota-
tion marks omitted.) Statewide Grievance Committee
v. Rozbicki, supra, 219 Conn. 480–81; see also Shelby
Mutual Ins. Co. v. Evans, 20 Conn. App. 1, 4–5, 563
A.2d 1041 (1989).
The provisions of Practice Book § 25-26 at issue in
this appeal plainly pertain to a matter of substance.
That rule of practice governs a litigant’s ability to file
a postdissolution motion for modification of a custody
or visitation order. In specifying that a hearing ‘‘shall’’
be held when an objection to a request for leave to file
such a motion is filed, § 25-26 (g) secures the litigant’s
opportunity to be heard thereon. That right to be heard,
in turn, stems from the litigant’s fundamental liberty
interest under the federal constitution in the nurture,
upbringing, companionship, care, and custody of his
children. See Troxel v. Granville, 530 U.S. 57, 65–66,
120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000); In re Tayler
F., 296 Conn. 524, 553–54, 995 A.2d 611 (2010). Given
the gravity of that interest and the plain mandate of
§ 25-26 (g) to conduct a hearing in such instances, we
are ‘‘perplexed as to why the trial court did not allow
a hearing’’; Wendy v. Santiago, 319 Conn. 540, 547 n.8,
A.3d (2015); particularly when the plaintiff’s July
2, 2014 filing expressly requested such a hearing. Contra
Malave v. Ortiz, 114 Conn. App. 414, 421, 970 A.2d 743
(2009) (court conducted five day hearing on request for
leave to file motion to modify custody order).
We conclude that the use of the word ‘‘shall’’ in § 25-
26 (g) establishes a mandatory requirement. In those
instances in which a timely objection to a request for
leave is filed, the trial court is obligated to conduct
a probable cause hearing on the matter. Because the
defendant filed such an objection in the present case,
we agree with the plaintiff that the court improperly
denied his request for leave to file his motion for modifi-
cation without holding a probable cause hearing.
II
The plaintiff also claims that the court abused its
discretion in denying his motion for modification. In
light of our resolution of his first claim, we need not
consider that contention, as the matter is remanded
to the trial court for a probable cause hearing on the
plaintiff’s request for leave to file his motion for modifi-
cation in accordance with Practice Book § 25-26 (g).
The scope of that remand, however, requires additional
discussion in light of events that have transpired during
the pendency of this appeal.
It is undisputed that, on February 25, 2015, the plain-
tiff filed a further request for leave to file a motion to
modify the parental access orders entered in October,
2013, with respect to his minor children. On March 5,
2015, the defendant filed an objection to that motion.5
By order dated March 11, 2015, the court granted the
request for leave with respect to his minor son, but did
not grant it with respect to his minor daughter.6
‘‘Mootness implicates [the] court’s subject matter
jurisdiction and is thus a threshold matter for us to
resolve. . . . It is a well-settled general rule that the
existence of an actual controversy is an essential requi-
site to appellate jurisdiction; it is not the province of
appellate courts to decide moot questions, discon-
nected from the granting of actual relief or from the
determination of which no practical relief can follow.
. . . An actual controversy must exist not only at the
time the appeal is taken, but also throughout the pen-
dency of the appeal. . . . When, during the pendency
of an appeal, events have occurred that preclude an
appellate court from granting any practical relief
through its disposition of the merits, a case has become
moot. . . . Because mootness implicates subject mat-
ter jurisdiction, it presents a question of law over which
our review is plenary.’’ (Citation omitted; internal quota-
tion marks omitted.) New Hartford v. Connecticut
Resources Recovery Authority, 291 Conn. 502, 506–507,
970 A.2d 578 (2009).
We conclude that the plaintiff’s appeal is moot with
respect to his motion to modify the parental access
orders concerning his minor son.7 During the pendency
of this appeal, the trial court, by order dated March
11, 2015, granted him leave ‘‘to pursue his motion for
modification as to the current access orders with his
son.’’ Accordingly, there is no practical relief that this
court can afford the plaintiff on that discrete issue.8 We
therefore dismiss that portion of the plaintiff’s appeal
that pertains to his request for leave to file a motion
to modify the parental access orders concerning his
minor son.
III
The plaintiff’s final claim is that the court abused its
discretion in denying his request for leave on two of
the four claims underlying his motion for contempt
against the defendant. We conclude that this court lacks
jurisdiction over that claim due to the lack of a final
judgment.
In its September 26, 2014 articulation of its decision
on the plaintiff’s July 2, 2014 request for leave to file a
motion for contempt, the court expressly concluded
that the first and third grounds alleged therein did not
give rise to a colorable claim of contempt. The court
thus granted the plaintiff’s request only with respect to
the second and fourth grounds alleged in the motion
for contempt. Accordingly, the present case is one in
which the trial court has resolved some, but not all, of
the claims presented in the plaintiff’s motion for
contempt.
‘‘[T]he existence of a final judgment is a jurisdictional
prerequisite to an appeal . . . .’’ (Internal quotation
marks omitted.) Hummel v. Marten Transport, Ltd.,
282 Conn. 477, 485, 923 A.2d 657 (2007). In Bucy v.
Bucy, 19 Conn. App. 5, 7–8, 560 A.2d 483 (1989), this
court held that a ruling that does not resolve all of
the issues raised in a motion for contempt is not an
appealable final judgment. As the court stated: ‘‘This
appeal must be dismissed because the record clearly
establishes that it was not taken from a final decision
of the trial court. In its memorandum of decision . . .
[t]he trial court . . . left several issues raised by the
plaintiff’s motion [for contempt] unresolved, directing
counsel to contact the court to schedule a hearing for
the purpose of resolving those issues. Instead of pro-
ceeding as directed by the trial court, the defendant
appealed the incomplete order. Because there are unre-
solved issues, the order of the trial court is not final.’’
Id.; accord McGuinness v. McGuinness, 155 Conn. App.
273, 278, 108 A.3d 1181 (2015) (ruling that ‘‘has not
fully disposed’’ of postdissolution motion to modify not
final judgment).
That precedent commands a similar conclusion in
the present case. Here, the court determined that two
of the four allegations of contumacious conduct were
without merit. It nevertheless granted the plaintiff’s
request for leave to proceed on the remaining two alle-
gations and ordered that ‘‘the plaintiff’s motion for con-
tempt . . . shall be scheduled for hearing on short
calendar.’’ As was the case in Bucy, instead of proceed-
ing as directed by the trial court, the plaintiff has
appealed that incomplete order. This court, therefore,
is without jurisdiction to entertain the plaintiff’s claim
due to the lack of a final judgment.
The judgment is reversed only as to the denial of the
plaintiff’s request for leave to file a motion to modify
(1) the custody and parental access orders with respect
to his minor daughter and (2) the custody orders with
respect to his minor son, and the case is remanded for
further proceedings consistent with this opinion. The
appeal is dismissed in all other respects.
In this opinion the other judges concurred.
1
Although Thurber has not filed an appellate brief in this matter, she did
attend oral argument before this court. Because the appellee has not filed
a brief in this appeal, the guardian ad litem for the minor children, Attorney
Margaret M. Bozek, was not obligated under our rules of practice to file a
brief or statement with this court. See Practice Book § 67-13.
2
That motion alleged in relevant part: ‘‘There has been a substantial
change in circumstances in that the current parenting plan is not in the minor
children’s best interests. The plaintiff/father is residing in a one bedroom
apartment, the minor child’s therapist is extremely concerned with the
plaintiff/father’s poor judgment as well as his refusal to participate in coun-
seling both with the child and individually and is currently recommending
a change in the parenting plan.’’
3
In its oral ruling, the court stated in relevant part that the plaintiff’s
‘‘judgment and ability to parent his children in their best interest has deterio-
rated since the time of [the court’s] initial judgment [on] June 18, 2012.
This coupled with [the minor daughter’s] reactions and [the minor son’s]
behaviors in school constitutes a substantial change in circumstances. The
children’s best interest requires a modification of the court’s orders regarding
access with him.’’
4
There is no indication in the record before us that the defendant’s objec-
tion was untimely under Practice Book § 25-26 (g), nor does the plaintiff
so argue.
5
The record is silent as to whether a probable cause hearing was held
on the plaintiff’s February 25, 2015 request for leave.
6
The court’s order stated in relevant part that it ‘‘shall grant the [plaintiff’s]
request for leave to pursue his motion for modification as to the current
access orders with his son.’’
7
We note that, unlike the plaintiff’s July 2, 2014 motion to modify, the
February 25, 2015 motion to modify pertained only to what the plaintiff
termed ‘‘access/visitation’’ orders. By contrast, his July 2, 2014 motion sought
to modify both parental access and custody orders.
8
At oral argument before this court, the plaintiff acknowledged that his
appeal has become moot in this limited respect.