Batista v. Cortes

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                     (AC 43244)
                Bright, C. J., and Lavine and Alexander, Js.*


The defendant filed a motion to modify custody of the parties’ minor child.
    After a hearing, the court denied the motion, determining that it was
    in the best interests of the child for her primary residence to remain
    with the plaintiff. On appeal, the defendant claimed that the trial court
    erred in denying his motion to modify custody and in failing to examine
    his alleged overpayment of child support. Held:
1. The trial court did not err in denying the motion to modify custody of
    the parties’ minor child because it determined that it was in the child’s
    best interests for her primary residence to remain with the plaintiff: the
    court properly responded to allegations of the plaintiff’s use of corporal
    punishment against the child by referring the matter to the Department
    of Children and Families and appointing a guardian ad litem, who partici-
    pated in the hearing on the motion, and there was nothing in the record
    to support the defendant’s allegation that the court failed to consider
    the plaintiff’s admission to the use of physical discipline in making
    its best interests determination; moreover, the defendant’s remaining
    arguments in support of his assertion were unreviewable, as he waived
    his claim of judicial bias, did not preserve for appeal his claim of failure
    to appoint proper representation for the child, and this court declined
    to disturb the trial court’s determination of the credibility of one of the
    plaintiff’s witnesses, as such a determination was for the trial court as
    trier of fact.
2. This court declined to review the defendant’s challenge to the accuracy
    of the child support payment audits: the issue of past child support
    payments was not before the trial court, which analyzed his allegations
    of overpayment only in the context of its determination of the best
    interests of the child, did not issue any orders regarding the audits, and
    issued an order only concerning the defendant’s future child support
    obligations; accordingly, there was no claim for this court to review
    on appeal.
      Argued November 18, 2020—officially released March 23, 2021

                             Procedural History

  Motion for modification of custody as to the parties’
minor child, brought to the Superior Court in the judicial
district of Hartford, where the court, Prestley, J., denied
the motion; thereafter, the court, Olear, J., denied the
defendant’s motion for reconsideration, and the defen-
dant appealed to this court. Affirmed.
  Angel L. Cortes, self-represented, the appellant

  LAVINE, J. The self-represented defendant, Angel L.
Cortes (father), appeals from the judgment of the trial
court denying his motion to modify his child’s primary
residence to his residence from that of the plaintiff,
Daisy G. Batista (mother).1 On appeal, the father (1)
claims, in essence, that the court abused its discretion
by concluding that it was in the child’s best interests
that she continue to reside primarily with her mother
and (2) challenges the results of several payment audits
showing that he owes an arrearage in child support.
We affirm the judgment of the trial court.
  The following facts and procedural history are rele-
vant to this appeal. The parties, who have never married
one another, are the parents of a child born in 2004.
The mother lives in Florida and the father lives in Con-
necticut. On December 7, 2006, the parties entered into
a court-approved parenting plan agreement that pro-
vided that they share joint legal custody of the child,
who lives primarily with the mother. An August 20, 2008
court order set forth a child support obligation of $71
per week for the father.
   On May 7, 2018, the father filed a motion for contempt,
seeking to revise the parenting plan agreement, which
he alleged that the mother had violated by keeping the
child from him. In that motion, the father also requested
that the child reside primarily with him and that the
mother repay him for what he alleged was his overpay-
ment of child support over the years due to misrepresen-
tations made by the mother. Following a hearing on
August 7, 2018, the court, Prestley, J., ordered visitation
for the father during the holidays. At that hearing, the
father accused the mother of using corporal punishment
against the child.2 The court immediately indicated that
it was referring the matter to the Department of Chil-
dren and Families (department) and appointed a guard-
ian ad litem to interview the child regarding the father’s
   On September 7, 2018, the father filed a motion to
modify custody, which is the subject of the present
appeal. In his motion, the father sought to modify the
primary residence of the child, alleging that the guard-
ian ad litem believed that it was in the child’s best
interests for her to live with him, that he had new
employment that would permit him to spend time with
the child, and that he had concerns about the child’s
physical safety while residing with her mother.3 The
father did not request a modification of child support
in that motion.
   The court held a hearing on the father’s motion to
modify custody, extending across two days on April
11, 2019, and June 3, 2019. During the course of the
proceeding, further facts came to light concerning the
father’s previous allegation that he has been overpaying
child support.4 The court told the father that it could
not rule on the issue of whether his arrearage was
correct and that he needed to request that the child
support enforcement office conduct audits of his past
payments. The court, however, took the matter into
consideration insofar as it related to the motion to mod-
ify custody before it. In doing so, the court heard evi-
dence from child support enforcement officers regard-
ing the accuracy of new audits the father had requested
pursuant to the court’s direction. At the conclusion of
the hearing, the court commended both parents for
their devotion to the child but emphasized that it would
need to make a difficult decision focused on the child’s
best interests. On June 12, 2019, the court issued a
memorandum of decision denying the father’s motion
to modify custody.
   In its decision, the court analyzed the child’s situation
with respect to both parents. The court found that the
child wanted to live with her father to get to know him
better. She reported feeling more ‘‘stressed’’ with her
mother, who ‘‘has high expectations of [the child],
wants her to go to college and they argue a lot.’’ The
mother worked two jobs to support her family, which
reduced her availability to her children and resulted in
frequent moves for the family and school changes for
her children. She had received a promotion, however,
which would allow her to work only one job and move
to a larger apartment. The court found that the father’s
child support payments were then $6533.11 in arrears
and that the mother’s financial difficulties over the years
were largely attributable to the father’s failure to pay
child support.
   The court described the mother’s belief that a move
would cause upheaval in the child’s life and that the
child would not be college bound or realize her potential
in the father’s care. The court found that the guardian
ad litem had ‘‘testified to her difficulty in making a
recommendation on this motion because of the fact
that the child is doing well academically in the [moth-
er’s] care, is a very good kid raised for the most part
by the [mother] and that there are high expectations
for her in her mother’s care. At the same time, the child
is a lot like her father, desires to come to Connecticut
to live with him and her relationship with the [mother]
can be difficult.’’ The court found that the father had
claimed that ‘‘on one occasion, the [mother] had struck
the child in the face’’ and that the father’s girlfriend
had expressed concerns that the child had ‘‘reported
an instance when the [mother] pulled [the child’s] hair
and grabbed the back of her neck.’’ The court, however,
did not make further findings regarding these allega-
  The court applied the factors set forth in General
Statutes § 46b-56 (c)5 to determine the best interests of
the child, emphasizing its consideration of ‘‘the child’s
past and present interactions with each parent and sib-
ling, the importance of maintaining continuity in her
home, school and community environment, the child
and parent’s preferences and the length of time that
the child has lived in a stable and satisfactory environ-
ment.’’ It found that the child has lived in the sole care
of the mother for most of her life, is doing well in
school, and has a younger brother with whom she could
lose contact if she lived with the father. The child has
spent time with her father in the summer when he had
been unemployed, but he currently works a full-time
job. The father has been supported by his significant
other when he is not working and has paid little to no
child support to the mother, resulting in her struggles
to provide for the child. The court recognized the child’s
desire to spend more time with her father but pointed
out that the early teenage years can be difficult for a
child and that the beginning of high school is not the
best time for a child to undertake a drastic change in
living and family situations. The court thus denied the
motion and ordered that the parties continue to share
joint legal custody of the child, whose primary resi-
dence will continue to be in Florida with the mother
and who will continue to visit the father.6 The court also
increased the father’s weekly child support obligation
to $95 per week, plus arrearage payments. On June
21, 2019, the father filed a motion for reconsideration,
which was denied by the court, Olear, J.7 This appeal
  On appeal, the father claims that the court erred
in denying his motion to modify the child’s primary
residence and in failing to examine his alleged overpay-
ment of child support. We do not agree.
   The standard of review in family matters is well set-
tled. ‘‘An appellate court will not disturb a trial court’s
orders in domestic relations cases unless the court has
abused its discretion or it is found that it could not
reasonably conclude as it did, based on the facts pre-
sented. . . . In determining whether a trial court has
abused its broad discretion in domestic relations mat-
ters, we allow every reasonable presumption in favor
of the correctness of its action.’’ (Internal quotation
marks omitted.) LeSueur v. LeSueur, 

186 Conn. App.

, 437–38, 

199 A.3d 1082

(2018). ‘‘[Section] 46b-56
provides trial courts with the statutory authority to
modify an order of custody . . . . Before a court may
modify a custody order, it must find that there has been
a material change in circumstances since the prior order
of the court, but the ultimate test is the best interests
of the child.’’ (Citations omitted; emphasis omitted;
footnote omitted; internal quotation marks omitted.)
Clougherty v. Clougherty, 

162 Conn. App. 857

, 868–70,

133 A.3d 886

, cert. denied, 

320 Conn. 932


134 A.3d

(2016), and cert. denied, 

320 Conn. 932


136 A.3d

  The father challenges the court’s conclusion that it
was in the child’s best interests to remain with her
mother in Florida. He raises four arguments in support,
namely, that the court (1) failed to act properly in
response to allegations that the mother engaged in cor-
poral punishment, (2) exhibited bias against him and
in favor of the mother, (3) failed to appoint proper
representation for the child, and (4) improperly credited
the testimony of the mother’s witness.
  The father first argues that the court ‘‘did not properly
act’’ on learning that the mother had used corporal
punishment, ‘‘because proper investigations were not
completed; and the expected urgency was not in place.’’
He asserts, without providing any evidence whatsoever,
that no investigation resulted from the court’s decision
to refer the matter to the department in August, 2018,
which he claims ‘‘goes against [General Statutes §]
   Our review of this matter discloses that the father has
neither pointed to anything in the record to demonstrate
that the department failed to act on the court’s referral
nor asked the trial court for an articulation concerning
this referral. The trial court did not make any specific
findings concerning the results of its referral to the
department. The record demonstrates, however, that
the court referred the matter to the department and
that it appointed a guardian ad litem for the child, who
testified extensively at the hearing on the motion to
modify custody. Although the father relies on the fact
that the court’s memorandum of decision does not
address the department referral or discuss the mother’s
concession to having struck the child,9 we are unable to
assess what impact either the referral or the concession
had on the court’s decision.
   This court cannot find facts. ‘‘As a reviewing court,
[w]e cannot act as a [fact finder] or draw conclusions
of facts from the primary facts found, but can only
review such findings to determine whether they could
legally, logically and reasonably be found, thereby
establishing that the trial court could reasonably con-
clude as it did.’’ (Internal quotation marks omitted.)
Osborn v. Waterbury, 

197 Conn. App. 476

, 482, 

232 A.3d

(2020), cert. denied, 

336 Conn. 903


242 A.3d 1010

(2021). The record clearly demonstrates that the court
made the referral and that it appointed a guardian ad
litem. The record also is clear that the father did not
ask the court to articulate whether, or to what degree,
it took into account in its best interests analysis the
mother’s admission and the results of the department
referral. ‘‘It is the responsibility of the appellant to pro-
vide an adequate record for review.’’ Practice Book
§ 61-10 (a); see also Practice Book § 60-5. ‘‘Absent evi-
dence to the contrary, we assume that the trial court
acted properly.’’ LeSueur v. LeSueur, 

172 Conn. App.

, 785–86, 

162 A.3d 32

(2017). The court’s custody
determination rests on multiple unchallenged factual
findings, such as the child’s academic performance,
her relationship with her sibling, the parents’ financial
circumstances, and the history of the child’s relation-
ship with her mother. See General Statutes § 46b-56 (c).
On the basis of the record provided, there is every
indication that the court properly assessed the relevant
factors, and there is nothing in the record to support
the father’s allegation that the court failed to consider
in rendering its decision the referral it had made to the
department or the mother’s concession. Accordingly,
we will not second-guess the court’s conclusion, which
is fully supported by the court’s factual findings.
  The father’s second, third, and fourth arguments in
support of his first claim, set forth previously, are unre-
viewable for the following reasons.
   First, the father waived his argument that the court
was ‘‘overly critical’’ of him and ‘‘did not give the same
treatment’’ to the mother. He contends that, despite his
multiple complaints concerning the mother, including
that she had admitted to physically disciplining the
child, the court demonstrated ‘‘presumptuous judg-
ment’’ against him by ruling in favor of the mother. We
construe this hard-to-interpret claim as one of judicial
bias. At the outset, we note that ‘‘[a]dverse rulings do
not themselves constitute evidence of bias.’’ (Internal
quotation marks omitted.) In re Omar I., 197 Conn.
App. 499, 571, 

231 A.3d 1196

, cert. denied, 

335 Conn.


233 A.3d 1091

, cert. denied sub nom. Ammar I. v.
Connecticut,        U.S.      , 

141 S. Ct. 549


208 L. Ed.

173 (2020). ‘‘It is well settled that [c]laims alleging
judicial bias should be raised at trial by a motion for
disqualification or the claim will be deemed to be
waived.’’ (Internal quotation marks omitted.) DeMattio
v. Plunkett, 

199 Conn. App. 693

, 724, 

238 A.3d 24

At no time during the proceeding did the father ask the
judge to recuse herself or move to disqualify the judge.
He, therefore, has waived this complaint.
   The father also contends that the court failed to
appoint proper representation for the child pursuant to
General Statutes § 46b-54.10 We decline to address this
claim because it was not preserved for appeal. Our
review of the record reveals that the parties consented
to the guardian ad litem’s appointment, the appointment
was extended several times, and the guardian ad litem
participated extensively in the proceedings. At no point
during the proceedings did the father contest the
appointment of the guardian ad litem or request that
counsel be appointed for the child. ‘‘[A]n appellate court
is under no obligation to consider a claim that is not
distinctly raised at the trial level. . . . [B]ecause our
review is limited to matters in the record, we [also]
will not address issues not decided by the trial court.’’
(Internal quotation marks omitted.) Silver Hill Hospi-
tal, Inc. v. Kessler, 

200 Conn. App. 742

, 753, 

240 A.3d

(2020); see also Practice Book § 60-5 (‘‘[t]he court
shall not be bound to consider a claim unless it was
distinctly raised at the trial or arose subsequent to
the trial’’).
   The father also challenges the credibility of Rachel
Cortes, the child’s aunt, whom the mother called as
a witness. In its memorandum of decision, the court
questioned the father’s credibility, in part on the basis
of Cortes’ testimony. The father now argues that the
court could not have credited the witness because she
has had very little contact with the child during the
previous three years. It is well settled that ‘‘[w]e must
defer to the finder of fact’s evaluation of the credibility
of the witnesses that is based on its invaluable firsthand
observation of their conduct, demeanor and attitude.
. . . Because it is the sole province of the trier of fact
to assess the credibility of witnesses, it is not our role
to second-guess such credibility determinations.’’ (Cita-
tion omitted; internal quotation marks omitted.) State
v. Shin, 

193 Conn. App. 348

, 359, 

219 A.3d 432

, cert.

333 Conn. 943


219 A.3d 374

(2019). This court
will not disturb the credibility determinations of the
trier of fact.
   The father’s second claim on appeal is that the court
did not properly consider his claim of child support
overpayment. In response to the mother’s accusation
that he was behind on child support payments, the
father asserted that Florida and Connecticut had insuffi-
ciently credited him for payments he made and that the
mother was receiving extra money and not reporting
it. We construe the father’s claim as a challenge to the
accuracy of the child support payment audits he has
received. Because the issue of past child support pay-
ments was not before the trial court and it did not rule
on the audits, we decline to review the claim.
   The following additional facts are relevant to our
decision regarding the reviewability of this claim. The
father insisted throughout the proceedings that he had
requested new audits from the support enforcement
office in accordance with the court’s direction but that
the audits continued to show an incorrect arrearage.
The court, after directing the father on December 13,
2018, to consult child support enforcement, called rep-
resentatives from the support enforcement office into
the hearing on April 11 and June 3, 2019, to review the
father’s child support records.11 Both support enforce-
ment officers confirmed the accuracy of the father’s
arrearage, and the court credited their testimony, twice
stating that the father would need to resolve any further
disagreements on the matter with support enforcement.
The court also reviewed the relevant documents on the
record and heard testimony from the parties.
   In its memorandum of decision, the court discussed
the father’s child support situation. Despite being
ordered to pay child support of $71 a week—an obliga-
tion that the court noted was an amount ‘‘well below
a minimum wage child support order’’—the father had
an arrearage of $6533.11 in his support obligation as of
May 15, 2019. The court found that ‘‘the [mother] has
been unable to provide material things and optimal
housing such as a separate room for the child, things
provided by the [father] in Connecticut, because the
[mother] has struggled financially as the sole supporter
of this child for most of the child’s life.’’ The court
questioned the father’s credibility, finding that the
father had ‘‘repeatedly claimed . . . that he has over-
paid support for the child with no evidence to support
such a claim.’’ (Emphasis added.) Two separate audits
of the father’s payments in Connecticut and in Florida
had supported the court’s finding that an arrearage
existed, but the father did not accept the audits’ conclu-
sion. The court modified the father’s child support obli-
gation in its order.
   Our review of the record discloses that the trial court
did not issue any orders regarding the audits of previous
child support payment history, although it did issue an
order directed to future payments. The present case
came before the trial court on a motion to modify the
allocation of physical custody.12 The trial court thus
analyzed the father’s allegations of overpayment solely
in the context of its best interests determination. The
court’s findings concerning child support were made
in support of its determination that it was in the child’s
best interests to remain with her mother. All of its
orders, save the order increasing the amount of future
child support payments, deal with custody and parent-
ing arrangements. The father’s claim, in contrast, solely
concerns the accuracy of child support audits of his
previous payments.13 Because the trial court issued no
orders concerning audits of previous payments, only
an order concerning the father’s future child support
payment obligations, there is nothing for this court to
review on appeal.
   The judgment is affirmed.
   In this opinion the other judges concurred.
  * The listing of judges reflects their seniority status on this court as of
the date of oral argument.
    The mother did not file a brief in this court. We therefore decide the
appeal on the basis of the record and the father’s brief and oral argument.
See Rosario v. Rosario, 

198 Conn. App. 83

, 84 n.1, 

232 A.3d 1105

    The father asserted that the mother had struck the child, which the
mother acknowledged having done.
    The mother did not file a written response but participated in the hearing
on the motion.
    The father contended that he had requested various child support audits
over the years, all of which incorrectly failed to credit him for his payments.
    General Statutes § 46b-56 (c) sets forth sixteen factors for the court to
consider in making orders concerning the custody, care, education, visitation
and support of children and provides in relevant part that ‘‘[i]n making or
modifying any order as provided in subsections (a) and (b) of this section,
the court shall consider the best interests of the child, and in doing so may
consider, but shall not be limited to, one or more of the following factors
. . . . The court is not required to assign any weight to any of the factors
that it considers, but shall articulate the basis for its decision.’’
     The court also issued orders concerning transportation costs, sibling
contact, counseling, tax exemptions, insurance, and jurisdiction over post-
majority educational support. None of those orders is at issue in this appeal.
     In his motion for reconsideration, the father disputed various factual
findings made by Judge Prestley in her custody determination and insisted
that he could provide further evidence with which he could prove the
inaccuracy of the audits reviewed by the court showing his child support
     General Statutes § 46b-6 provides in relevant part: ‘‘In any pending family
relations matter the court or any judge may cause an investigation to be
made with respect to any circumstance of the matter which may be helpful
or material or relevant to a proper disposition of the case. Such investigation
may include an examination of the parentage and surroundings of any child,
his age, habits and history, inquiry into the home conditions, habits and
character of his parents or guardians and evaluation of his mental or physical
condition. . . .’’
     Although the court’s memorandum of decision did not mention the moth-
er’s admission of corporal punishment, we note that the court acknowledged
in its decision the allegations of corporal punishment against the mother
made by the father and his girlfriend.
      General Statutes § 46b-54 provides in relevant part: ‘‘(a) The court may
appoint counsel or a guardian ad litem for any minor child . . . if the court
deems it to be in the best interests of the child . . . . (b) Counsel or a
guardian ad litem for the minor child or children may also be appointed
. . . when the court finds that the custody, care, education, visitation or
support of a minor child is in actual controversy . . . .’’
      The court asked, at the start of the April 11, 2019 hearing, if the father
had requested an accounting from support enforcement, to which the father
replied in the affirmative. The court informed the father that his child support
arrearage was an issue he would have to resolve with the state separately,
rather than with the court during the motion to modify custody orders. At
the resumption of the hearing on June 3, 2019, the father stated that he had
consulted with support enforcement again.
      The father did not file a motion to address his alleged overpayment of
child support. He previously challenged it in his May 7, 2018 postjudgment
motion for contempt, but the trial court issued an order resolving that motion
on August 7, 2018, and the father has not challenged that disposition.
      In his statement of the issues, the father specifically defines the issue
as follows: ‘‘Did the trial court properly examine [his] claim of his overpay-
ment of child support?’’ (Emphasis added.) In the main portion of his brief,
he sets forth the issue as: ‘‘The trial court did not properly consider the
[father’s] claim of overpayment of child support.’’ He questions if the ‘‘numer-
ous audits on his case . . . are done properly’’ and asks that ‘‘a proper
audit be [conducted] of his child support payments with both the state of
Connecticut and the state of Florida’s histories.’’ We thus construe his claim,
as briefed, to challenge only the audits of past payments. He has not set
forth a claim regarding the court’s modification of his child support amount.

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