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*********************************************** 
PASCAL BARONIO v. DONNA M. STUBBS ET AL.

(AC 38940)

Alvord, Prescott and Beach, Js.

Syllabus

The defendant mother appealed to this court from the judgment of the trial

court awarding her and the plaintiff father joint legal custody of their

minor child. The defendant claimed that the trial court erred in presuming that shared physical custody was in the child’s best interest where

there was not an agreement by the defendant to an award of joint legal

custody, and that it committed plain error by stating during certain

pendente lite proceedings that it wanted to see an increase in the plaintiff’s parenting time and indicating before it heard all the evidence that

it was inclined to award joint legal custody to the plaintiff. Held:

1. The trial court properly concluded under the circumstances of this case

that the parties had agreed upon an award of joint legal custody and

that shared physical custody was in the best interest of the child; the

defendant’s trial counsel represented to the court at the start of an

evidentiary hearing that she did not object to joint legal custody and

further represented to the court at the close of evidence that she was

requesting joint legal custody, the plaintiff had requested joint legal

custody in certain proposed orders, and the defendant did not file any

opposing proposed orders.

2. The defendant’s claim that the trial court committed plain error by expressing preconceived inclinations to increase the plaintiff’s parenting time

and to award joint legal custody was unavailing, as the record did not

reveal any apparent bias or predetermination by the court against the

defendant or in favor of the plaintiff; although the court may have

interrupted the defendant’s testimony, it was apparent that the court

was attempting to keep the testimony focused on pertinent evidence,

a statement of the court regarding the plaintiff’s opportunity to have

overnight parenting time was made at the conclusion of the hearing

after both parties had testified and following the court’s finding that

overnight stays with the plaintiff were in the best interest of the child,

and the court’s determination of joint legal custody was consistent with

the parties’ requests at the beginning of the hearing.

Submitted on briefs October 12—officially released December 19, 2017

Procedural History

Action for custody of the parties’ minor child, brought

to the Superior Court in the judicial district of New

Haven, where the court, Goodrow, J., approved a temporary agreement of the parties regarding a parenting

plan; thereafter, the court denied the plaintiff’s request

for modification of the agreement; subsequently, the

court granted the plaintiff’s application for joint custody

and rendered judgment thereon, from which the named

defendant appealed to this court; thereafter, the court

approved an agreement of the parties regarding a parenting plan. Affirmed.

Albert J. Oneto IV filed a brief for the appellant

(named defendant).

Christopher M. Hansen filed a brief for the appellee (plaintiff).
Opinion

ALVORD, J. The defendant, Donna Stubbs, appeals

from the judgment of the trial court awarding her and

the plaintiff, Pascal Baronio, joint legal custody of their

minor child. On appeal, the defendant claims that the

court: (1) ‘‘erred in presuming that shared physical custody was in the child’s best interest where there was

not an agreement by the defendant to an award of joint

legal custody within the meaning of General Statutes

§ 46b-56a (b)’’; and (2) ‘‘committed plain error by stating

during pendente lite proceedings that it wanted to see

an increase in the plaintiff’s parenting time, and by

indicating before it heard all the evidence at trial that

it was inclined to award joint legal custody to the plaintiff.’’ We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our decision. The parties were involved in a

relationship for approximately thirteen years and have

one child together. The parties lived together until October, 2014, when the plaintiff moved out. The plaintiff

filed an application for joint custody on December 1,

2014. The defendant filed an objection to the plaintiff’s

application on December 11, and an application for

emergency ex parte order of custody on December 16.

The court scheduled a hearing on January 8, 2015. On

that date, the parties agreed upon a temporary parenting

plan, which was made an order of the court. The parents’ agreement permitted the plaintiff to see their child

every Sunday from 9 a.m. to 6 p.m., to have telephone

contact daily, and to see their child at school. On January 14, 2015, the plaintiff filed a motion for appointment

of a guardian ad litem, which the court granted.

On February 11, 2015, the parties appeared before

the court, Goodrow, J. The court heard testimony from

both parties regarding, inter alia, the plaintiff’s request

for additional parenting time. The court found that it

was in the best interest of their child to have overnights

with the plaintiff, and ordered that the plaintiff have

parenting time on alternating weekends from 10 a.m.

on Saturday until 4 p.m. on Sunday. The parties were

ordered to report back to the court on March 3, 2015, to

address any concerns. On that date, the parents entered

into a further agreement, and were again ordered to

report back on March 31, 2015. On March 31, the plaintiff made a request for additional parenting time. Specifically, he requested parenting time with their child

through Monday morning to bring their child to school

on those weekends that he had overnight parenting

time. Counsel for the defendant objected to the request

as did the guardian ad litem, Attorney David Crow,

citing the child’s adjustment to a new environment in

the plaintiff’s home. The court denied the plaintiff’s

request without prejudice, ordered the parties to return

in two weeks, and ordered the guardian ad litem to

provide a report on that date. On April 14, 2015, the
guardian ad litem recommended that the plaintiff’s parenting time be increased to include Sunday night

through Monday morning. The parents entered into an

agreement, which the court adopted, that included this

additional parenting time.

The parties next appeared before the court on September 11, 2015, for a contested hearing on the plaintiff’s application for joint custody. The plaintiff filed

with the court proposed orders in which he requested

joint legal and shared physical custody. The defendant

did not file proposed orders with the court. In addition

to the testimony of the plaintiff and the defendant, the

court also heard testimony from Susan Falato, an art

therapist with Shoreline Wellness in West Haven, Cheryl

Iannucci, a care coordinator for Beacon Health Options

in Rocky Hill, Allyson Popel, the child’s kindergarten

teacher, and Attorney Crow. The court issued an oral

decision on February 1, 2016, in which it ordered joint

legal custody and shared physical custody, and further

ordered the plaintiff’s proposed parenting time. The

parties subsequently agreed upon a parenting plan,

which the court approved. This appeal followed.

I

We first address the defendant’s claim that the court

‘‘misapplied the law governing awards of joint legal

custody under General Statutes § 46b-56a.’’ Specifically,

she claims that the statute permits a presumption that

joint custody is in the best interests of the child only

if the parties have agreed to an award of joint custody.

She claims that ‘‘the record was insufficient to support

a finding that the defendant agreed to share joint legal

custody’’ with the plaintiff, and thus, ‘‘there was no

legal basis upon which the family court could presume,

as it did, that shared physical custody was in the child’s

best interests.’’ We disagree.

The following additional facts are relevant to this

claim. On September 11, 2015, at the start of the contested hearing on custody, the plaintiff provided the

court with proposed orders in which he requested joint

legal and shared physical custody. Specifically, the

plaintiff sought a biweekly custodial plan, pursuant to

which he would have parenting time with their child

from 10 a.m. Saturday through Wednesday morning on

week one, and from 6 p.m. Sunday through Wednesday

morning on week two. The defendant did not submit

proposed orders to the court. When the court therefore

inquired as to what the defendant was requesting, her

counsel stated that ‘‘the status quo should be maintained. The present orders should be maintained.’’ The

court then inquired as to whether the defendant was

objecting to joint legal custody, and her counsel replied

that she was not.

During the testimony of Attorney Crow on the final

day of the hearing, the court inquired as to whether he
had ‘‘a recommendation as to custody, whether it

should be joint or sole.’’ Attorney Crow responded that

he wanted to see joint legal custody, to which the court

responded: ‘‘I do, too. Here’s my concern, they don’t

seem to be able to communicate.’’ Attorney Crow then

expressed his opinion that the parties, despite a number

of minor issues on both sides, had been working

together. At the conclusion of evidence, the court heard

argument from both parties. The court specifically

requested that the parties address what they were asking the court to order and the statutory factors the

court has to consider. The following colloquy occurred

between the court, Attorney Christopher Hansen for

the plaintiff, and Attorney Joseph DePaola for the

defendant:

‘‘The Court: [A]s I understand it, Attorney Hansen,

you’re asking for joint legal custody with a split fifty/

fifty time split. Is that correct?

‘‘[The Plaintiff’s Counsel]: Not in—Judge, we are asking for shared physical, but it’s actually about fifty-five/

forty-five, the fifty-five being with the mother.

‘‘The Court: All right. That’s based on your last—

what you put on the record when we began.

‘‘[The Plaintiff’s Counsel]: Yes. And it’s . . . in the

proposed orders, Your Honor.

‘‘The Court: And, Attorney DePaola, what is it, specifically, that you’re asking for?

‘‘[The Defendant’s Counsel]: I’m asking for the current order to remain in effect, taking into account the

[guardian ad litem’s (GAL)] suggestion that an additional evening be inserted.

‘‘The Court: And joint legal custody?

‘‘[The Defendant’s Counsel]: Joint legal custody, primary physical residence with my client, final decision

making authority with my client, and the current order

is to remain in effect except for that extra day during

the week that was suggested by Mr. Crow.

‘‘The Court: How does the court entertain a join—

your—you’re—I infer you’re also requesting joint custody—legal custody. Is that right?

‘‘[The Defendant’s Counsel]: Yeah, I thought I said

that. Yeah.

‘‘The Court: I’m sorry. I must have missed it.

‘‘[The Defendant’s Counsel]: I’m sorry.

‘‘The Court: How—

‘‘[The Defendant’s Counsel]: Joint legal custody, primary physical residence with the defendant mother;

defendant mother to have final decision making authority, current visitation schedule to remain in effect with

an additional evening per the recommendation of the
GAL.

‘‘The Court: My question—and this is—I’m going to

ask Attorney Hansen the same question, how does the

court enter a joint legal custody order, particularly from

your perspective, Attorney DePaola, where your client

has said that she doesn’t have the ability to communicate with the plaintiff father regarding important

decisions?

‘‘[The Defendant’s Counsel]: Well, I—I think they’ve

come a long way from where they started, Judge. I’m

not sure that’s a foregone conclusion at this point.

‘‘The Court: Do you understand why that raises a

concern for the court when your client [is] saying she

can’t communicate with the father?

‘‘[The Defendant’s Counsel]: I—I think it would be a

concern, but in this case, I think in view of all of the

circumstances and with the testing and the coparenting

class that they’re going to attend; I think they’ll be able

to overcome that.’’

The court, noting that it had considered the statutory

factors in the evidence, ordered joint legal custody and

further ordered the plaintiff’s proposed parenting time.

The court ordered the parties to agree on a schedule,

which they did, and the court approved the parents’

agreement.

We first note the well settled standard of review in

family matters. ‘‘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 presented. . . . In determining whether a trial

court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption

in favor of the correctness of its action. . . . Appellate

review of a trial court’s findings of fact is governed

by the clearly erroneous standard of review. The trial

court’s findings are binding upon this court unless they

are clearly erroneous in light of the evidence and the

pleadings in the record as a whole. . . . A finding of

fact is clearly erroneous when there is no evidence in

the record to support it . . . or when although there

is evidence to support it, the reviewing court on the

entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Therefore, to conclude that the trial court abused its

discretion, we must find that the court either incorrectly

applied the law or could not reasonably conclude as

it did.’’ (Internal quotation marks omitted.) Keenan v.

Casillo, 149 Conn. App. 642, 644–45, 89 A.3d 912, cert.

denied, 312 Conn. 910, 93 A.3d 594 (2014).1

‘‘There shall be a presumption, affecting the burden

of proof, that joint custody is in the best interests of a

minor child where the parents have agreed to an award

of joint custody or so agree in open court at a hearing
for the purpose of determining the custody of the minor

child . . . .’’ General Statutes § 46b-56a (b). ‘‘This section does not mandate joint custody; it only creates a

presumption that joint custody would be in the best

interests of a minor child under certain circumstances.

It is still for the trial court to decide whether joint

custody has been agreed to by the parties.’’ Timm v.

Timm, 195 Conn. 202, 209, 487 A.2d 191 (1985). Whether

the parties have agreed to such an award is a question

for the trial court. See Emerick v. Emerick, 5 Conn.

App. 649, 657, 502 A.2d 933 (1985), cert. dismissed, 200

Conn. 804, 510 A.2d 192 (1986).

On the basis of the record before it, the court in the

present case reasonably could have concluded that the

parties had agreed upon an award of joint legal custody.2

The defendant’s counsel represented to the court at the

start of the hearing that she did not object to joint legal

custody. The defendant’s counsel further represented

to the court at the close of evidence that she was

requesting joint legal custody. Moreover, the plaintiff

had requested joint legal custody in his proposed

orders, and the defendant did not file proposed orders.

‘‘[J]udicial review of a trial court’s exercise of its broad

discretion is limited to the questions of whether the

court correctly applied the law and could reasonably

have concluded as it did.’’ (Internal quotation marks

omitted.) Timm v. Timm, supra, 195 Conn. 210. The

court reasonably could have concluded, under the circumstances of this case, that a joint custody award

was both agreed upon and was in the best interests of

the child.3

II

We next address the defendant’s claim that the court

committed plain error because it ‘‘publicly committed

itself, prior to the start of trial, to increasing the plaintiff’s parenting time, and because the family court

announced before hearing all of the evidence that it

wanted to give joint legal custody of the child to the

plaintiff.’’ The defendant, who was represented by counsel throughout the custody proceedings, did not file a

motion for disqualification pursuant to Practice Book

§ 1-23, nor did she file a motion for a mistrial. Conceding

that ‘‘ordinarily the Appellate Court will not review a

claim of judicial bias unless the claim was properly

presented to the trial court through a motion for mistrial,’’ the defendant requests review under the plain

error doctrine. We conclude that the court did not commit plain error.

We first note that ‘‘[o]ur Supreme Court has criticized

the practice whereby an attorney, cognizant of circumstances giving rise to an objection before or during trial,

waits until after an unfavorable judgment to raise the

issue. We have made it clear that we will not permit

parties to anticipate a favorable decision, reserving a

right to impeach it or set it aside if it happens to be
against them, for a cause which was well known to

them before or during the trial.’’ (Internal quotation

marks omitted.) Weyher v. Weyher, 164 Conn. App. 734,

749, 138 A.3d 969 (2016). Nevertheless, ‘‘[b]ecause an

accusation of judicial bias or prejudice strikes at the

very core of judicial integrity and tends to undermine

public confidence in the established judiciary,’’ this

court has reviewed unpreserved judicial bias claims

under the plain error doctrine. (Internal quotation

marks omitted.) Id., 749–50. ‘‘Plain error exists only in

truly extraordinary situations where the existence of

the error is so obvious that it affects the fairness and

integrity of and public confidence in the judicial proceedings.’’ (Internal quotation marks omitted.) Id., 750.

The defendant claims that the court expressed ‘‘preconceived inclination[s]’’ to grant the plaintiff’s request

for additional parenting time, and later, shared custody,

on two occasions, February 11 and March 31, 2015. She

further claims that the ‘‘taint of predetermination’’ was

evident in ‘‘the manner in which the court permitted

the plaintiff’s case to be presented.’’

Specifically, the defendant first claims that the court

interrupted her testimony during the February 11 hearing to admonish her.4 She states that when asked why

she thought it was in the child’s best interest not to

have overnight visits with the plaintiff, the defendant

explained that she was the child’s sole caretaker and

that she had taken the child to all of his doctor’s appointments. The court then stated: ‘‘this actually isn’t about

you’’ and further stated ‘‘[i]t’s about your son.’’ The

court told the defendant that although it did not consider the plaintiff’s request unreasonable, if the defendant thought it was not in the child’s best interest, the

court wanted to know about that. The defendant claims

that the court interrupted her testimony a second time

to permit the plaintiff to ameliorate concerns raised by

the defendant about access to inappropriate material on

television.5 Next, she points to the court’s oral decision

granting the plaintiff’s request for additional parenting

time, in which the court stated: ‘‘The court finds that

it is in the best interest of the child to have overnights

with his father. . . . [T]his order and decision does not

take away at all from the hard work that mother’s been

doing, but I feel strongly father should have the opportunity to have overnights and child should have the opportunity to be with father.’’

The defendant also claims that the court ‘‘reinforced’’

the appearance of a predetermined inclination to grant

the plaintiff’s request for shared custody on March 31,

2015, when it ordered the parties to return in two weeks,

ordered the guardian ad litem to provide a report on that

date, and stated that it ‘‘intend[ed] to extend father’s

parenting time.’’ Lastly, the defendant suggests that the

court erred in remarking, during Attorney Crow’s testimony on February 1, 2016, that it too wanted to see
joint legal custody prior to the defendant concluding

her rebuttal evidence.

Our thorough review of the transcripts of the hearings

does not reveal any apparent bias or predetermination

against the defendant or in favor of the plaintiff.

Although the court may have interrupted the defendant’s testimony, we conclude that it was apparent that

the court was attempting to keep the testimony focused

on pertinent evidence.6 See Wiegand v. Wiegand, 129

Conn. App. 526, 535, 21 A.3d 489 (2011) (although the

court, at times, ‘‘demonstrated some frustration and

impatience with the plaintiff,’’ the court’s statements

were ‘‘impartial and were meant to keep the plaintiff

focused on relevant evidence that properly could be

considered by the court’’); Giordano v. Giordano, 9

Conn. App. 641, 644, 520 A.2d 1290 (1987) (rejecting

defendant’s claim that the court, inter alia, ‘‘had a preconceived opinion which raise[d] questions about the

impartiality of the proceeding’’ where defendant’s claim

was based on ‘‘a few comments carefully culled from

the course of the entire trial’’). The court’s statement

regarding the plaintiff’s opportunity to have overnight

parenting time was made at the conclusion of the hearing after both parties had testified, and the statement

immediately followed the court’s finding that overnights

were in the best interest of the child.7 Lastly, we find

no error in the court’s agreement with Attorney Crow

that it wanted to see joint legal custody, where joint

legal custody was consistent with the parties’ requests

at the beginning of the hearing. See part I of this opinion.

Because we find no merit to the defendant’s claim of

judicial impropriety, the defendant has failed to demonstrate the existence of plain error.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The defendant argues that this court should engage in plenary review

of her claim because she challenges the trial court’s application of governing

law. We disagree. The gravamen of the defendant’s claim is that the court

improperly awarded joint custody after erroneously finding that the parties

had agreed to joint legal custody. Such a claim is properly reviewed under

the abuse of discretion standard. See, e.g., Timm v. Timm, 195 Conn. 202,

209–10, 487 A.2d 191 (1985) (reviewing under abuse of discretion standard

defendant’s claim that trial court erred in declining to award joint custody,

where defendant claimed both parties had agreed to joint custody); Keenan

v. Casillo, supra, 149 Conn. App. 644–48 (reviewing under abuse of discretion

standard claim that court erred in ordering joint custody because it lacked

statutory authority).

2 The defendant relies primarily upon Timm v. Timm, supra, 195 Conn.

210, in which our Supreme Court held that the trial court reasonably could

have concluded that a joint custody award was not agreed upon by the

parties. In Timm, although the plaintiff had testified at one point that she

thought joint custody was ‘‘in the best interest of the children’’; (internal

quotation marks omitted) id., 208 n.2; she had earlier testified, in answering

a question requesting that she explain why she would not be willing to have

joint custody: ‘‘I don’t know, specifically the way we have been getting

along. And we can’t get along. And, I think, the tension between us if we

were to have joint custody at this point; we can’t communicate at all. And

I just think it would be too difficult at this stage of the game.’’ (Internal

quotation marks omitted.) Id., 209.

In the present case, even with both parties requesting joint legal custody,
and the guardian ad litem recommending joint legal custody, the court still

gave careful consideration to the parties’ ability to communicate with each

other. The defendant’s counsel represented to the court that the parties had

come a long way and would be able to overcome communication issues.

On the basis of this record, we determine that the court, after hearing all

of the evidence and the testimony of each of the witnesses, reasonably

could have concluded as it did.

3 The defendant further claims that the court erred in awarding joint legal

custody in light of her counsel’s request for ‘‘[j]oint legal custody, primary

physical residence with [the defendant], final decision making authority

with [the defendant],’’ which she argues served as a clear request for sole

legal custody. We disagree. As this court has previously recognized, ‘‘final

decision making authority’’ in one parent is distinct from sole legal custody.

See Desai v. Desai, 119 Conn. App. 224, 230, 987 A.2d 362 (2010) (noting

Appellate Court’s rejection of argument that grant of ultimate decisionmaking authority to one parent is, in effect, order of sole custody); Tabackman v. Tabackman, 25 Conn. App. 366, 368–69, 593 A.2d 526 (1991) (rejecting

argument that award of joint legal custody with ultimate decision-making

authority in one parent is ‘‘the functional equivalent of an award of sole

custody’’).

4 The following colloquy occurred:

‘‘[The Defendant’s Counsel]: Tell the judge why you think it’s in [the

child’s] best interest not to have overnight[s] with Mr. Baronio at this point

in time?

‘‘[The Defendant]: Because, Your Honor, I have been his sole caretaker.

I have taken my son to every single one of his doctor’s appointments. My

attorney has his records with proof of that.

‘‘The Court: With all due respect, ma’am—

‘‘[The Defendant]: Yes.

‘‘The Court: —this actually isn’t about you.

‘‘[The Defendant]: Okay.

‘‘The Court: It’s about your son.

‘‘[The Defendant]: Right.

‘‘The Court: So the question is, he’s five years old . . . this court and

your lawyer will . . . tell you this, [your lawyer] knows me well enough

. . . believes that parents, both parents . . . should be actively involved

. . . in their children’s lives. . . . And so I don’t think that it is unreasonable

. . . what father is asking for. . . . But if you think it’s not in your child’s

best interest . . . then I want to know about . . . that.’’

5

Immediately following the court’s inquiry of the plaintiff regarding television access, the defendant’s counsel asked the defendant what visitation

schedule would be fair. The following exchange, which the defendant emphasizes in her brief, occurred:

‘‘[The Defendant]: . . . He’s more than welcome to take him from 9

o’clock and I would like him home at 4 o’clock so I can feed my son because

of the incident that happened this past weekend, again, when he’s had him

and I’ve brought him to him on time every time like it was ordered. I’ve

continued to take my son to school in Milford.

‘‘The Court: What’s the incident this weekend?

‘‘[The Defendant]: My son had chicken on Thursday night with me, Friday

with me—no, excuse—Friday night with me, Saturday night with me, and

he fed him chicken twice on a Sunday.

‘‘The Court: You’re not seriously telling the court that you—

‘‘[The Defendant]: What—

‘‘The Court: —let me—

‘‘[The Defendant]: No—

‘‘The Court: —finish.

‘‘[The Defendant]: —no, no, no. Okay.

‘‘The Court: Let me finish. You’re not seriously telling the court that you

think father shouldn’t have an overnight because your son’s eating chicken

four nights in a row?

‘‘[The Defendant]: No, no, no. He threw up when he came home. . . .

‘‘The Court: —and you attribute—

‘‘[The Defendant]: —I—

‘‘The Court: —that to father’s chicken?

‘‘[The Defendant]: I attribute it to him—three things, maybe not taking

him out when he was sick and he had the flu. He vomited, he had a fever,

he had diarrhea. So I asked his father, what did he eat? I was trying to

figure out if he had food poisoning.’’

6 We likewise find no error in the court seeking clarification from the then
self-represented plaintiff in response to the defendant’s testimony regarding

television access.

7 The cases cited by the defendant are factually distinct from the matter

before this court. See Cameron v. Cameron, 187 Conn. 163, 170, 444 A.2d

915 (1982) (holding that trial judge should have ordered mistrial after stating

several times that he believed defendant or his counsel was ‘‘attempting to

perpetrate’’ fraud on the court and that defendant had lied during deposition,

and where the court had invited defendant to testify and immediately held

him in contempt); Havis-Carbone v. Carbone, 155 Conn. App. 848, 867, 112

A.3d 779 (2015) (finding plain error where the trial court granted plaintiff

permission to relocate to another state with parties’ child prior to conducting

hearing, at which plaintiff bore burden of proving by preponderance of

evidence that, inter alia, relocation was in best interests of child).