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DIVORCE AND FAMILY LAW: Connecticut Appellate Court affirms trial court’s clarification of a visitation order and reverses its clarification of a property order

DIVORCE AND FAMILY LAW: Connecticut Appellate Court Affirms Trial Court’s Clarification Of A Visitation Order And Reverses Its Clarification Of A Property Order

Section 46b-56 permits a court to modify child custody and visitation orders at any time. Although the defendant repeatedly raises the specter of a four month jurisdictional limitation on the court’s authority to modify the judgment with respect to the custody and visitation orders, in his brief to this court, he correctly concedes that the ”court has continuing jurisdiction to modify a visitation order.” Even if Judge Gordon’s order was timely, the defendant maintains that the court improperly characterized its order changing the defendant’s visitation rights as a clarification rather than as a modification. If, as he argues, it was a modification, it was improper because, prior to modifying an order of child custody, a court must hold a hearing and make the requisite findings of fact. See Berglass v. Berglass, 71 Conn. App. 771, 782-83, 804 A.2d 889 (2002).

Because the record in the present case discloses several ambiguities, it supports the court’s decision to correct the visitation stipulation. It is uncontested that the stipulation provides for the children to have primary residence with the plaintiff. The defendant’s interpretation of the stipulation allows him to have parenting time every weekend and Tuesdays and Thursdays, including overnights on those occasions when the defendant has someone available to get the children ready for school. Such an arrangement would be inconsistent with the children having their primary residence with the plaintiff.

Additionally, the stipulation refers to plans for holidays, such as Mother’s Day and Father’s Day, and provides for special arrangements in case that day ”does not fall on that parent’s weekend . . . .” (Emphasis added.) The stipulation also provides: ”In the event any of the holidays or vacations result in one parent being scheduled to have the minor children for three weekends in a row, then the weekend which is not associated with the holiday or vacation period shall go to the parent who does not have them for that holiday or vacation.” In these various respects, the terms of the stipulation are inconsistent with the defendant’s present position. Even more important, at the August, 2008 hearing before Judge Gordon, there was no dispute that the stipulation reflected a scrivener’s error and that the visitation should be every other weekend. Both the defendant and his attorney stated, on the record, that the defendant had the children with him every other weekend. The defendant’s attorney acknowledged that there was a scrivener’s error in the stipulation. Although the record does not disclose why the court did not make the requested changes in August, 2008, it provides ample support for the court’s decision to issue an orderof a clarification on January 25, 2010.

 

For more information and resources on Connecticut divorce lawyers, see our divorce resources page: http://www.jud.ct.gov/external/supapp/Cases/AROap/AP130/130AP547.pdf