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Labieniec v. Megna

JENNIFER LABIENIEC v. ROBERT MEGNA

(AC 45809)

Suarez, Clark and Vertefeuille, Js.

Syllabus

The defendant father appealed from the trial court’s judgment denying his

postjudgment motion for an order seeking a passport for the parties’ minor

child and granting the plaintiff mother’s postjudgment motion to modify the

custody of the child. Held:

The trial court did not abuse its discretion in denying the defendant’s motion

for an order seeking a passport for the child, as there was evidence to

support the court’s finding that it was not in the child’s best interest to

grant the motion.

The trial court erred in granting the plaintiff’s postjudgment motion for

modification of custody of the child, as that court improperly determined

that the language of the parties’ agreement was clear and unambiguous as

to their intent with respect to the child’s schooling, and the case was

remanded for a determination of the parties’ intent after consideration of

relevant extrinsic evidence.

Argued May 13—officially released September 17, 2024

Procedural History

Application for custody of the parties’ minor child,

brought to the Superior Court in the judicial district of

New Haven, where the court, Goodrow, J., rendered

judgment regarding custody in accordance with the

agreement of the parties; thereafter, the court, Laskos,

J., granted the plaintiff’s postjudgment motion to modify custody, from which the defendant appealed to this

court; subsequently, the court, Laskos, J., denied the

defendant’s motion for order regarding a passport for

the parties’ minor child, and the defendant filed an

amended appeal to this court. Reversed in part; further

proceedings.

Campbell D. Barrett, with whom were Stacie L.

Provencher and, on the brief, Kelly A. Scott, for the

appellant (defendant).

Brette H. Fitton, for the appellee (plaintiff).
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Opinion

CLARK, J. In this custody dispute, the defendant,

Robert Megna, appeals from the judgment of the trial

court granting a postjudgment motion to modify custody of the parties’ minor child, C, filed by the plaintiff,

Jennifer Labieniec, and from the denial of his postjudgment motion for a passport for C. On appeal, the defendant claims that the trial court improperly (1) denied

his motion for order regarding a passport for C, and

(2) modified the agreement of the parties as to C’s

primary residence for school purposes. We disagree

with the defendant as to his first claim but agree with

him on his second claim. Accordingly, we affirm in part

and reverse in part the judgment of the trial court.

We begin by setting forth the relevant facts, as found

by the trial court, and procedural history of this case.

The parties, who were never married, are the parents

of C, a daughter born in September, 2016. The plaintiff

also has a minor child, P, who is C’s older half brother

from another relationship. The defendant currently

resides in New Haven, and the plaintiff currently resides

in Middletown.

On July 31, 2019, the plaintiff filed a custody application, requesting, among other things, joint legal custody

and primary physical custody of C. On August 23, 2019,

the defendant filed a cross complaint, similarly seeking

joint legal custody and primary physical custody of C.

On September 12, 2019, the court, Goodrow, J.,

approved and incorporated into the judgment of the

court an agreement of the parties concerning C (agreement), which provided in relevant part: ‘‘(1) The parties

shall share joint legal custody of [C] . . . . (5) Both

parties shall give thirty days advanced notice of any

vacations of three days or more they take with or without [C]. There shall be no vacations with [C] out of the

country without mutual agreement and consent. . . .
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Labieniec v. Megna

(10) [The defendant] shall have primary residence for

school purposes. It is the intention of the parties that

[C] will not be placed in the New Haven public school

system.’’

When C was ready to start kindergarten in the 2021–

2022 school year, the defendant attempted to enroll her

in a private school in North Haven, but she was denied

admission. Thereafter, the defendant proceeded to

enroll C in the New Haven public school system for

kindergarten.

On June 23, 2021, the plaintiff filed a motion for

modification seeking to modify section 10 of the parties’

agreement to award her primary residential custody of

C for school purposes, and to enroll C in the Middletown

public school system. Specifically, the plaintiff stated

in her motion: ‘‘Since the date of the [agreement], the

circumstances in this case have changed substantially,

as follows:

‘‘[The defendant] failed to enroll [C] in private school

as contemplated in the agreement. [The defendant] unilaterally enrolled [C] in [the] New Haven public [school

system] contrary to the agreement, and in violation of

joint legal custody. Further, he is attempting to unilaterally impose a change to the parenting schedule by telling

[the plaintiff] that [C] will stay with him throughout the

week, despite the existing court orders. It is in the best

interest of [C] to be enrolled in [the] Middletown public

[school system], where [P and the plaintiff] live. . . .

‘‘Further, throughout the pandemic [the] defendant

failed to consult or coordinate with [the plaintiff]

regarding his travel outside . . . of Connecticut and

outside [of] the United States . . . resulting in [the

plaintiff] having to choose risking exposure to Covid

or having parenting time with [C] at various points

throughout the pandemic.’’
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The defendant filed an objection to the plaintiff’s

motion on December 20, 2021, in which he stated: ‘‘In

her motion, the [plaintiff] states that the [defendant]

failed to enroll [C] in a private school as contemplated

by the agreement of the parties dated September 12,

2019. . . .

‘‘The agreement executed by the parties . . . states

in [section] 10 that ‘‘[t]he [defendant] shall have primary

residence for school purposes. It is the intention of the

parties that [C] will not be placed in the New Haven

public school system. . . .

‘‘In reality, the plaintiff unilaterally filed an application to enroll [C] in the Middletown school district on

or around April 29, 2021, unbeknownst to the defendant.

She only withdrew that application in August, 2021.

...

‘‘In addition, the plaintiff went with the defendant to

enroll [C] in the New Haven [public school system] only

after [C] was not accepted in a private school which

was agreed upon by the parties. The plaintiff cooperated

in the enrollment of [C] in the New Haven public [school

system]. . . .

‘‘The plaintiff now disingenuously seeks to paint the

defendant as the culprit who has masterminded enrollment of [C] in the New Haven public school system

distancing herself from a decision in which she partook.

Any [substantial change in circumstances] has been

caused by and agreed to by the plaintiff. . . .

‘‘There is no basis for the plaintiff’s modification of

custody including diminution of time spent with the

[defendant] by [C]. In fact, the defendant has helped

the plaintiff by offering his services to watch [C]. He

participates in [C’s] activities and interests. He loves

[C] and he is equally committed to providing for her

welfare. It is in [C’s] best interest for the parties to
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Labieniec v. Megna

continue to have joint legal, shared physical custody

of [C].’’

Separately, on November 2, 2021, the defendant filed

a postjudgment motion for order seeking to have the

court direct the parties to cooperate in obtaining a

passport for C. The defendant further requested that

he retain the passport in his custody. The plaintiff did

not file any objection to the defendant’s motion. On

July 28 and August 8, 2022, the court, Laskos, J., held

a hearing on, inter alia, the plaintiff’s motion for modification, the defendant’s objection to the plaintiff’s

motion for modification, and the defendant’s motion

for order seeking a passport for C. The court heard

testimony from both parties, a friend of the plaintiff,

and the guardian ad litem, Attorney Joseph DiSilvestro.1

On August 26, 2022, the court issued a written order

regarding the plaintiff’s motion for modification. The

court stated: ‘‘[The plaintiff] and [the defendant] are

the parents of [C] . . . . [C] is a well-adjusted, happy

child who loves both parents. She is social and has

many friends. The parties entered into an agreement

concerning [C]. . . . This agreement gave the [defendant] primary residency for school purposes under the

assumption that [the defendant] would not place [C]

in a specific public school system. Section 10 of the

agreement . . . is clear as to purpose and intent. This

section states: ‘[The defendant] shall have primary residence for school purposes. It is the intention of the

1 We note that the guardian ad litem representing C on appeal is Attorney

Richard W. Callahan. Attorney Callahan adopted the defendant’s appellate

brief as to the claim regarding the defendant’s motion for order regarding

a passport for C and requested that we reverse the judgment of the trial

court as to that claim. As to the defendant’s claim regarding the change in

primary custody for school purposes, the guardian ad litem stated, ‘‘If there

is reversible error as to [the defendant’s claim regarding primary custody

for school purposes], the guardian ad litem reserves the right on remand

to formulate an opinion as to what is in the best interest of [C].’’
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Labieniec v. Megna

parties that [C] will not be placed in the New Haven

public school system.’

‘‘[The defendant] once tried to enroll [C] in a school

that would have satisfied the agreement, however [C’s]

admission was denied. Beyond this there was little to

no effort by [the defendant] to enroll [C] during her

second school year in a school consistent with the parties’ agreement.

‘‘Before [C] entered school, and for this school year,

alternative school options that satisfy the agreement

of the parties exist[ed], including a school near [the

plaintiff’s] home and another school in between the

[parties’] residences. [The plaintiff] contacted [the

defendant] to discuss these options, however, these

options were rebuffed by [the defendant], and he

enrolled [C] in the school closest to his home. [The

plaintiff] did not consent to the enrollment of [C] in

this school, however, having no other option, she determined it was in the best interest of [C] to proceed with

the orientation process and file . . . this motion for

modification. After a full year of [C] attending her current school, [the plaintiff] continues to disagree that

the current school meets the intent of the agreement,

and she believes that remaining in the current school

is not in [C’s] best interest.

‘‘Upon the 2022–2023 school year, there was no effort

by [the defendant] to apply to another school as

intended in the agreement. [The plaintiff] obtained

information to compare schools to determine what

school is in [C’s] best interest. [The defendant] did not

review this information and unilaterally determined that

the current school is in [C’s] best interest.

‘‘The current school and parenting schedule in place

resulted in an inequity between the parents because

[the plaintiff] had to adjust her work schedule so that
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Labieniec v. Megna

she could transport [C] to the school near [the defendant’s] home. The commute to [C’s] school, given [the

plaintiff’s] work schedule and additional expenses due

to [an] increase in gas prices, created stressors that are

not in [C’s] best interest. [The defendant] did not have

similar stressors. [The defendant] has more time and

has resources for [C’s] school transportation needs, in

part because he is retired.

‘‘[C] makes friends easily. She has expressed [a] willingness to remain in her current school and/or to attend

another school. [C] has an admirable temperament. If

[C] remains in the same school, there is no certainty

that she would retain her current friends or teacher.

The [guardian ad litem] supported [C] remaining in her

current school or a change of school to a private school

if that option is available.

‘‘The court finds that the intent of the agreement was

not followed and that this resulted in a lack of trust

between the parties. This is not in [C’s] best interest.

‘‘The parties reached their agreement under the mistaken impression that [C] would be admitted to an alternative school. The court finds that this deviation from

the agreement is a material change in circumstances

that was not anticipated by either party when the agreement was made an order of the court.

‘‘The court considers this evidence in light of the

relevant law found at [General Statutes] § 46b-56 (c).

When considering a modification of custody pursuant

to § 46b-56 (c) the court must consider the best interests

of the children utilizing the factors contained within

that statute.

‘‘The statutory factors most relevant to this decision

include:

‘‘1. The physical and emotional safety of the child;

[C] is physically and emotionally safe in both parents’ homes.
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Labieniec v. Megna

‘‘2. The temperament and developmental needs of the

child. [C] has an easygoing temperament.

‘‘3. The child’s adjustment to his or her home, school,

and community environments. [C] easily transitions

between the homes for parenting time. She makes

friends easily and can easily transition to a new school.

‘‘4. Any relevant and material information obtained

from the child, including the informed preferences of

the child. [C] is happy in her current school, however,

[C] has also expressed wanting to attend the same

school as [her] brother, [P], although [P] is older

than [C].

‘‘5. The willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is

appropriate, including compliance with any court order.

Both parties had a clear understanding of the intent of

the agreement as to school when it was ordered. [The

plaintiff] followed this section of the court order even

though [C] was enrolled in a school that did not meet

the intent of the agreement. [The defendant] did not

follow the intent of the agreement.’’ The court ordered

that the plaintiff have primary residence of C for school

purposes, effective for the 2022–2023 school year. On

September 14, 2022, the defendant filed this appeal challenging the court’s August 26, 2022 decision on the

plaintiff’s motion for modification.

Subsequently, on November 28, 2022, the court

denied the defendant’s motion for order regarding

obtaining a passport for C. The court stated: ‘‘[C] was

five years old at the time of the hearing. The defendant

enjoys traveling and he would travel internationally

with [C], if allowed. The defendant failed to provide

the plaintiff with advance notice of any vacations of

three days or more taken with or without [C] as required

by court order. This resulted in the plaintiff having to
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Labieniec v. Megna

choose risking exposure to Covid or having parenting

time with [C] at various points throughout the pandemic. The court finds the plaintiff’s concerns with

international travel are reasonable given [C’s] age and

development and that it is not in [C’s] best interest . . .

for the court to grant an order for a passport at this

time.’’ Thereafter, the defendant filed an amended

appeal to include the court’s November 28, 2022 denial

of his motion for order regarding obtaining a passport

for C.

On May 12, 2023, the defendant filed a motion for

articulation with respect to the court’s order that C’s

primary residence be with the plaintiff for school purposes and its denial of the defendant’s motion for order

regarding a passport for C. On May 26, 2023, the trial

court denied the motion for articulation. The defendant

then filed a motion for review with this court on July

25, 2023. On September 13, 2023, this court granted

review, but denied the relief requested therein. Additional facts and procedural history will be set forth as

necessary.

I

The defendant first argues that the court erred in

denying his motion for order regarding a passport for

C. Specifically, the defendant argues that the court’s

finding that he did not comply with the agreement by

notifying the plaintiff of his vacations is clearly erroneous and that the court abused its discretion in denying

his motion because granting the motion is in C’s best

interest. We are not persuaded.

Section 46b-56 provides in relevant part: ‘‘(a) In any

controversy before the Superior Court as to the custody

or care of minor children . . . the court may make or

modify any proper order regarding the custody, care,

education, visitation and support of the children . . . .

(b) In making or modifying any [such] order . . . the
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Labieniec v. Megna

rights and responsibilities of both parents shall be considered and the court shall enter orders accordingly

that serve the best interests of the child and provide

the child with the active and consistent involvement

of both parents commensurate with their abilities and

interests. . . .’’

‘‘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.) De Almeida-Kennedy v.

Kennedy, 224 Conn. App. 19, 29–30, 312 A.3d 150 (2024).

In its order denying the defendant’s motion, the court

found that it was not in C’s best interest at that time

for it to order the plaintiff to cooperate with the defendant in obtaining a passport for C. Specifically, the court

stated that ‘‘[C] was five years old at the time of the

hearing. The defendant enjoys traveling and he would

travel internationally with [C], if allowed. The defendant

failed to provide the plaintiff with advance notice of
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Labieniec v. Megna

any vacations of three days or more taken with or without [C] as required by court order. This resulted in the

plaintiff having to choose risking exposure to Covid

or having parenting time with [C] at various points

throughout the pandemic. The court finds the plaintiff’s

concerns with international travel are reasonable given

[C’s] age and development and that it is not in [C’s]

best interest . . . for the court to grant an order for a

passport at this time.’’

The defendant argues that the record does not support the court’s finding that he failed to provide the

plaintiff with advance notice of any of his vacations

and that his lack of notice caused the plaintiff to risk

exposure to Covid in order to have parenting time with

C. The defendant argues that, although these allegations

were made in the plaintiff’s motion for modification,

there was no evidence presented at the hearing in support of these allegations and, therefore, the court’s findings were clearly erroneous.

Although we agree with the defendant that there was

little or no evidence regarding the defendant’s alleged

lack of notice regarding his travel, the defendant ignores

the fact that there was evidence to support the court’s

additional findings in support of its order denying his

motion, namely, that it was not in C’s best interest for

the court to grant the order for a passport in light of

C’s age and development.

At the hearing on the defendant’s motion, the plaintiff

testified regarding her concerns about C travelling internationally. In response to a question from her attorney

on direct examination, she testified that her ‘‘biggest

concern [is with] C traveling [to] countries where she

doesn’t speak the language. God forbid anything were

to happen. I know [the defendant] travels alone. She

can’t tell you where she lives, her phone number, or

speak the language. That is my biggest concern.’’ The
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plaintiff then went on to testify about other concerns

she had, including concerns about the company that

the defendant keeps when he travels internationally.

At the time of the hearing, C was five years old. On

the basis of the plaintiff’s testimony about her concerns

regarding C’s age and development, it was reasonable

for the court to conclude that it was not in C’s best

interest to require the plaintiff to assist the defendant

in acquiring a passport for C at that time. Furthermore,

it bears mentioning that the parties’ agreement provides

in relevant part that ‘‘[b]oth parties shall give . . .

thirty . . . days advanced notice of any vacations of

[three] days or more they take with or without [C].

There shall be no vacations with [C] out of the country

without mutual agreement and consent.’’ Thus, the

agreement essentially gives each parent full veto power

over the other parent’s international travel with C.

Because the plaintiff had not agreed or consented to

allow C to travel internationally with the defendant (or

expressed any intention of allowing C to do so in the

future), had the court granted the motion for a passport,

the court essentially would have been facilitating the

defendant’s international travel with C, even though

under the agreement the plaintiff has full veto authority

over such travel. Accordingly, we cannot conclude on

this record that the court abused its discretion in denying the defendant’s motion for an order regarding a

passport.

II

The defendant next argues that the court improperly

granted the plaintiff’s motion for modification, which

changed C’s primary residence for school purposes

from the defendant’s address to the plaintiff’s address.

Specifically, the defendant argues that the court’s (1)

‘‘conclusion that the [defendant] did not follow the

intent of the agreement is contradicted by the plain
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Labieniec v. Megna

language of the agreement,’’ (2) ‘‘reliance on [C’s] preferences is logically inconsistent,’’ and (3) findings

regarding the plaintiff’s concerns with C’s placement

in the New Haven public school system are ‘‘flawed.’’

We agree with the defendant that the court improperly

granted the plaintiff’s motion for modification, but we

do so for a somewhat different reason. Specifically, we

conclude that the court improperly determined that the

language of the agreement was clear and unambiguous

with respect to the parties’ intent concerning where C

would attend school. Because the court’s order granting

the plaintiff’s motion for modification was predicated

on its determination that the relevant language of the

agreement was clear and unambiguous with respect to

where C would attend school, a remand is required so

that the court can consider extrinsic evidence concerning the parties’ intent with respect to that ambiguous

provision of the agreement.

We begin by setting forth the principles of law relevant to our resolution of this claim. ‘‘[Section] 46b-56

provides trial courts with the statutory authority to

modify an order of custody or visitation. When making

that determination, however, a court must satisfy two

requirements. First, modification of a custody award

must be based upon either a material change [in] circumstances which alters the court’s finding of the best

interests of the child . . . or a finding that the custody

order sought to be modified was not based upon the

best interests of the child.2 . . . Second, the court shall

consider the best interests of the child and in doing so

may consider several factors. General Statutes § 46b56 (c). . . . 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

2 In her motion for modification, the plaintiff argued only that there had

been a substantial change in circumstances, not that the original custody

order was not based upon the best interests of the child.
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the ultimate test is the best interests of the child. . . .

These requirements are based on the interest in finality

of judgments . . . and the family’s need for stability.

. . . The burden of proving a change to be in the best

interest of the child rests on the party seeking the

change. . . .

‘‘Not all changes occurring in the time between the

prior custody order and the motion for modification

are material. . . . Although there are no bright-line

rules for determining when a material change in circumstances warranting the modification of custody has

occurred, there are several relevant considerations,

including whether . . . the change was not known or

reasonably anticipated when the order was entered, and

the change affects the child’s well-being in a meaningful

way.’’ (Citations omitted; emphasis omitted; footnote

added; 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 621 (2016), and cert. denied, 320 Conn. 932, 136

A.3d 642 (2016).

In the present case, the court’s determination that

there was a material change in circumstances was predicated on its determination that section 10 of the agreement was clear and unambiguous as to the parties’

intent with respect to C’s schooling and that the circumstances presented were not anticipated by the parties’

agreement. Specifically, the court found that ‘‘[s]ection

10 of the agreement . . . is clear as to purpose and

intent’’ and that ‘‘[b]oth parties had a clear understanding of the intent of the agreement . . . .’’ The court

interpreted the agreement to mean that the defendant

would have ‘‘primary residency for school purposes

under the assumption that [he] would not place [C] in

[the New Haven public school system].’’ The court

stated that the defendant ‘‘once tried to enroll [C] in a
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Labieniec v. Megna

school that would have satisfied the agreement, however [C’s] admission was denied. Beyond this there was

little to no effort by [the defendant] to enroll [C] during

her second school year in a school consistent with

the parties’ agreement.’’ The court concluded that ‘‘the

intent of the agreement was not followed . . . [and]

[t]he parties reached their agreement under the mistaken impression that [C] would be admitted to an alternative school. . . . [T]his deviation from the agreement is a material change in circumstances that was

not anticipated by either party when the agreement was

made an order of the court.’’

For the reasons that follow, we disagree with the

trial court’s conclusion that section 10 of the parties’

agreement is clear and unambiguous. We begin with

the relevant legal principles.

‘‘It is well established that a separation agreement

that has been incorporated into a dissolution decree

and its resulting judgment must be regarded as a contract and construed in accordance with the general

principles governing contracts. . . . When construing

a contract, we seek to determine the intent of the parties

from the language used interpreted in the light of the

situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the

parties is to be ascertained by a fair and reasonable

construction of the written words and . . . the language used must be accorded its common, natural, and

ordinary meaning and usage where it can be sensibly

applied to the subject matter of the contract. . . .

When only one interpretation of a contract is possible,

the court need not look outside the four corners of the

contract. . . . Extrinsic evidence is always admissible,

however, to explain an ambiguity appearing in the

instrument. . . .

‘‘If a contract is unambiguous within its four corners,

the determination of what the parties intended by their
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contractual commitments is a question of law [and our

review is plenary]. . . . When the language of a contract is ambiguous, [however] the determination of the

parties’ intent is a question of fact, and the trial court’s

interpretation is subject to reversal on appeal only if it

is clearly erroneous. . . .

‘‘Accordingly, [t]he threshold determination in the

construction of a separation agreement . . . is

whether, examining the relevant provision in light of

the context of the situation, the provision at issue is

clear and unambiguous, which is a question of law over

which our review is plenary. . . . Contract language is

unambiguous when it has a definite and precise meaning . . . concerning which there is no reasonable basis

for a difference of opinion . . . . The proper inquiry

focuses on whether the agreement on its face is reasonably susceptible of more than one interpretation. . . .

It must be noted, however, that the mere fact that the

parties advance different interpretations of the language in question does not necessitate a conclusion

that the language is ambiguous. . . . A court will not

torture words to import ambiguity where the ordinary

meaning leaves no room for ambiguity . . . .’’ (Citations omitted; internal quotation marks omitted.) Fazio

v. Fazio, 162 Conn. App. 236, 243–45, 131 A.3d 1162,

cert. denied, 320 Conn. 922, 132 A.3d 1095 (2016).

‘‘In contrast, a contract is ambiguous if the intent of

the parties is not clear and certain from the language

of the contract itself. . . . [A]ny ambiguity in a contract

must emanate from the language used by the parties.

. . . The contract must be viewed in its entirety, with

each provision read in light of the other provisions . . .

and every provision must be given effect if it is possible

to do so. . . . If the language of the contract is susceptible to more than one reasonable interpretation, the
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contract is ambiguous.’’ (Internal quotation marks omitted.) Parisi v. Parisi, 315 Conn. 370, 383–84, 107 A.3d

920 (2015).

As noted, section 10 of the parties’ agreement provides in relevant part that ‘‘[the defendant] shall have

primary residence for school purposes. It is the intention of the parties that [C] will not be placed in the

New Haven public school system.’’ The first sentence

of section 10 of the agreement appears to have little

meaning outside of the context of enrollment in a public

school system. A child’s residence is important for

school purposes precisely because it dictates where a

child is entitled to attend public school. See General

Statutes § 10-184 (‘‘[s]ubject to the provisions of this

section and section 10-15c, each parent or other person

having control of a child five years of age and over and

under eighteen years of age shall cause such child to

attend a public school regularly during the hours and

terms the public school in the district in which such

child resides is in session’’ (emphasis added)); General

Statutes § 10-220 (a) (‘‘[e]ach local or regional board

of education . . . shall make such provisions as will

enable each child of school age residing in the district

to attend some public day school for the period required

by law’’ (emphasis added)). Thus, the provision of the

agreement stating that ‘‘[the defendant] shall have primary residence for school purposes’’ strongly suggests

that the parties intended for C to attend public school

in New Haven—the city in which the defendant resides.

The second sentence of section 10, however, goes

on to state that ‘‘it is the intention of the parties that

[C] will not be placed in the New Haven public school

system.’’ The ambiguity caused by these two sentences

of section 10 of the agreement is manifest on its face.

Indeed, the two sentences are entirely inconsistent. See

Thoma v. Oxford Performance Materials, Inc., 153

Conn. App. 50, 60, 100 A.3d 917 (2014) (‘‘[i]rreconcilable
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inconsistent provisions have been treated by this court

and our Supreme Court as creating an ambiguity within

the contract’’).

The parties’ competing interpretations further elucidate this ambiguity. The defendant claims that, although

the second sentence reflects the parties’ wishes and

desires that C attend a private school instead of the

New Haven public schools, the second sentence was

not obligatory or mandatory on the parties. He contends

that, if C were unable to attend private school for whatever reason (such as not being admitted by the private

school), C necessarily would have to attend public

school and the agreement made clear that C would

attend the public schools based on his residence—New

Haven. He claims that his interpretation of the agreement is the only way to give effect to both sentences

of the provision.

The plaintiff, on the other hand, contends that the

plain language of section 10 demonstrated that the parties agreed that C would be enrolled in a private school,

not in the New Haven public schools. The plaintiff

argues that, because C did not get into the private school

to which the defendant applied, and because the defendant did not apply to any other private schools on behalf

of C, there was a material change in circumstances

because neither party contemplated C not being admitted to a private school. She fails to address the meaning

or purpose of the first sentence of section 10, however.

In concluding that the language of section 10 is clear

and unambiguous and that it reflected the parties’ intent

that C not be placed in New Haven public schools under

any circumstances and that, instead, the parties

intended only that she be placed in a private school,

the trial court focused exclusively on the second sentence of section 10, making little attempt to explain

how the language stating that the defendant, who lives
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in New Haven, would have primary residence for school

purposes could be reconciled with the second provision

of the agreement. Although the parties have advanced

competing interpretations of the contractual language

at issue, it is not the role of this court to determine

which interpretation is more reasonable. The ambiguity

in the contractual language gives rise to an issue of

fact that must be resolved, in the first instance, by the

trial court.

On the basis of the conflicting language of section

10 of the agreement, we conclude that the agreement

is ambiguous as to C’s schooling. In light of this ambiguity, the court should have considered extrinsic evidence

with respect to the parties’ intent under section 10 of

the agreement. See Parisi v. Parisi, supra, 315 Conn.

385 (if language of contract is ambiguous, parties’ intent

is question of fact that trial court is required to consider

and resolve after considering extrinsic evidence and

surrounding circumstances). Because the court’s determination that there was a material change in circumstances was predicated on its determination that section 10 of the agreement was clear and unambiguous

as to the parties’ intent with respect to C’s schooling,

we must remand the case to the trial court to determine

the intent of the parties’ after consideration of any relevant extrinsic evidence.3 See Casablanca v. Casablanca, 190 Conn. App. 606, 620–21, 212 A.3d 1278 (‘‘[o]n

the basis of our conclusion that the court erroneously

determined that the provision was unambiguous, we

3 ‘‘We recognize . . . that none of the parties on remand has an obligation

to present extrinsic evidence, whether testimonial or documentary, to

resolve this ambiguity. Nor does any party have an obligation to present

evidence as to who drafted the agreement, such that, in the event that

extrinsic evidence did not resolve the ambiguity, the contra proferentem

rule could properly be applied. We simply note that a [a party] who fails to

present any evidence that would permit the fact finder to resolve a material

ambiguity risks failing to satisfy [their] burden of proof.’’ Murchison v.

Waterbury, 218 Conn. App. 396, 415 n.19, 291 A.3d 1073 (2023).
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conclude that a remand to the trial court is necessary

for the court to hold a new hearing on the parties’

motions and to determine the intent of the parties after

consideration of all the available extrinsic evidence and

the circumstances surrounding the entering of the

agreement’’ (footnote omitted)), cert. denied, 333 Conn.

913, 215 A.3d 1210 (2019); Hirschfeld v. Machinist, 181

Conn. App. 309, 328, 186 A.3d 771 (court was required

to resolve ambiguity by considering extrinsic evidence

and making factual findings as to parties’ intent), cert.

denied, 329 Conn. 913, 186 A.3d 1170 (2018).

The judgment is reversed with respect to the granting

of the plaintiff’s postjudment motion for modification

and the case is remanded for further proceedings consistent with this opinion; the judgment is affirmed in

all other respects.

In this opinion the other judges concurred.