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*********************************************** 
WILLIAM LUGO v. TERESA LUGO

(AC 38800)

Mullins, Beach and Harper, Js.

Syllabus

The defendant, whose marriage to the plaintiff previously had been dissolved, appealed to this court from the judgment of the trial court

granting the plaintiff’s postjudgment motion for modification of the

parenting plan concerning the parties’ minor child as set forth in the

parties’ separation agreement, which had been incorporated into the

dissolution judgment. Under the separation agreement, the parties

shared joint legal and physical custody of the child with a shared parenting plan. The plaintiff sought a modification of the parental access orders

to allow him to have additional time with the child. Prior to a hearing

on the motion for modification, the plaintiff filed his compliance with

trial management orders, in which he requested sole custody of the

minor child, and the trial court denied, inert alia, the defendant’s motion

in limine, in which she sought to preclude the admission of evidence

on the issue of a change in custody. Following a hearing on the motion

for modification, which was held on three days over a period of three

months, the trial court awarded the plaintiff sole legal custody of the

minor child. On appeal, the defendant claimed, inter alia, that the trial

court improperly awarded sole custody to the plaintiff when the plaintiff

failed specifically to include a claim for sole legal custody in his motion

for modification, as required by the applicable rule of practice (§ 25-

26), and, thus, that she lacked adequate notice that a change in legal

custody was contemplated. Held that the trial court did not err in granting

the plaintiff sole legal custody of the parties’ minor child; although the

plaintiff’s motion for modification did not specifically request the relief

of sole legal custody, the record showed that the defendant had notice

that custody issues would be raised at the hearing, as the motion specifically requested a broader role for the plaintiff and the defendant had

at least several months to prepare for the hearing on the motion for

modification following the denial of her motion in limine concerning

the issue of a change in custody, and because the defendant failed to

provide this court with the transcripts of the three day hearing on the

motion for modification, this court was unable to find an abuse of

discretion by the trial court or to determine that the defendant was

harmed by any degree of curtailed notice.

Argued April 17—officially released September 5, 2017

Procedural History

Action for the dissolution of a marriage, and for other

relief, brought to the Superior Court in the judicial district of Hartford, and tried to the court, M. Taylor, J.;

judgment dissolving the marriage and granting certain

other relief in accordance with the parties’ agreement;

thereafter, the court, Ficeto, J., granted the plaintiff’s

motion for modification, and the defendant appealed

to this court. Affirmed.

Derek V. Oatis, for the appellant (defendant).

Campbell D. Barrett, with whom were Johanna S.

Katz and, on the brief, Jon T. Kukucka, for the appellee (plaintiff).
Opinion

BEACH, J. The defendant, Teresa Lugo, appeals from

the trial court’s judgment granting the postdissolution

motion for modification filed by the plaintiff, William

Lugo. On appeal, the defendant claims that the court

erred in (1) granting the plaintiff’s motion for modification by awarding the plaintiff sole legal custody of the

minor child, and (2) denying her motion in limine seeking to prevent consideration of the question of sole

legal custody. We affirm the judgment of the trial court.

The following facts and procedural history are relevant. The parties were married on July 12, 2003. They

have one minor child. In 2008, the plaintiff filed for a

divorce. On August 10, 2010, the court, M. Taylor, J.,

rendered a judgment of dissolution that incorporated

by reference a separation agreement entered into by

the parties. The separation agreement provided that

‘‘[t]he parties shall have joint legal and shared physical

custody of the minor child with a shared parenting plan

for their child.’’

On April 10, 2014, the plaintiff filed a motion for

modification in which he noted that the parties had

joint legal and shared custody of the minor child and

had a specific parenting schedule. He stated that ‘‘the

current orders are not in the best interest of the minor

child. The plaintiff respectfully requests that the court

modify the parenting plan by altering the parties’ parenting time to allow more time with the plaintiff father.’’

The defendant requested that the court ‘‘modify the

parental access orders to allow additional time with

the plaintiff father, and such other and further relief as

the court deems equitable.’’

A hearing on the motion was scheduled for September 3, 2015. On August 24, 2015, the plaintiff filed his

compliance with trial management orders; in his compliance, he requested sole custody of the minor child.

On August 26, 2015, the guardian ad litem for the minor

child, Margaret Bozek, filed her proposed orders, which

included a recommendation that the parties continue

to have joint legal custody of the minor child, but that

the plaintiff have final decision-making authority if the

parties could not agree after consultation. In her August

31, 2015 proposed orders, the defendant requested that

the parties continue to have joint legal custody of the

minor child.

The hearing on the plaintiff’s motion for modification

was held on three days, September 3, October 8 and

November 12, 2015. On the first day of the hearing, the

defendant filed a motion in limine seeking to preclude

the admission of evidence on the issue of a change in

custody of the minor child. The record reflects that

the court, Ficeto, J., denied the defendant’s motion on

September 3, 2015. We do not know what reasoning

was stated for the denial of the motion in limine because
we do not have a transcript of the hearing. On September 15, 2015, the defendant filed a motion for a continuance of the next hearing, then scheduled for September

21, because she needed more time to obtain information

from the minor child’s therapist. Although the court

denied the motion for continuance, the next hearing

was not held until October 8, 2015, and, as previously

stated, a third session occurred on November 12, 2015.

In its memorandum of decision, the court ordered

that the plaintiff was to have sole legal custody of the

minor child, and that he was to keep the defendant

apprised of all substantive matters concerning the

minor child, including, but not limited to, educational

programs, medical treatment, religious upbringing,

attendance at camp, and participation in extracurricular

activities. The court found that it was ‘‘abundantly

clear’’ that the parties were unable to coparent despite

the tools available to them since the dissolution, and

that the parties’ inability to coparent had a negative

impact on the minor child. The court noted that the

guardian ad litem had testified and had recommended

joint custody with the plaintiff having final decisionmaking authority. The court further stated that all

attempts to coparent amicably since the dissolution

judgment had failed, and that ‘‘[t]here was nothing to

suggest during the three days of evidence that the history between the parties will change to permit the feasibility of joint custody.’’ After considering the best

interest of the child and all other relevant statutory

criteria, the court ordered that the plaintiff have sole

legal custody of the minor child. This appeal followed.

The defendant makes the closely related claims that

the court erred in denying her motion in limine and

ordering sole custody to the plaintiff when the plaintiff

failed specifically to include a claim for sole legal custody in his motion for modification, as required, she

argues, by Practice Book § 25-26 (e).1 The plaintiff

argues that the defendant’s claim is unreviewable

because she has not provided transcripts of the hearing

on the motion for modification and, therefore, the

record is not adequate for review. The plaintiff argues

substantively that his motion for modification did

request other equitable relief, that the defendant had

actual notice, and that, in any event, a trial court’s

conclusion as to custody will not be overturned for lack

of specific pleading, so long as fundamental requirements of due process are met. The defendant contended

at oral argument before this court that transcripts of

the motion for modification hearing were not necessary

because the resolution of the issue on appeal involves

a plenary review of the motion for modification to ascertain whether, in light of § 25-26 (e), the court lawfully

could award the plaintiff sole legal custody. We agree

with the plaintiff.

The defendant’s position, reduced to its essentials,
is that the plaintiff’s motion for modification did not

supply adequate notice that a change in legal custody

was contemplated. The plaintiff contends that actual

notice that custody was at issue was in fact supplied,

by notice to the parties from the guardian ad litem, as

early as April, 2015. The court made no finding, so far

as we can tell, to that effect. We assume, then, for the

purpose of this opinion, that the first formal notification

of the specific remedy sought was made one week

before the first hearing in the plaintiff’s compliance with

trial management orders. The general subject matter of

child custody, of course, had been known for months.

As previously noted, the plaintiff’s motion for modification was not deficient in identifying prior orders sought

to be modified or the grounds for modification. The

motion did not, however, specifically request the relief

of sole legal custody.

In the circumstances of this case, we cannot conclude

that the court erred in granting the plaintiff sole legal

custody. Significant case law supports the plaintiff’s

position on appeal. In Kidwell v. Calderon, 98 Conn.

App. 754, 911 A.2d. 342 (2006), the plaintiff had filed a

custody complaint seeking joint legal custody and

‘‘[a]ny further orders that the [c]ourt in law or equity

deems necessary.’’ Id., 755. The trial court awarded

the plaintiff sole custody. The defendant argued to this

court that ‘‘because the plaintiff did not specifically ask

for sole custody in his complaint or file a motion seeking

sole custody, the court abused its discretion in granting

him sole custody.’’ Id., 757. This court disagreed. Due

process requirements of notice and reasonable opportunity to be heard had been satisfied; the defendant had

adequate notice. Id., 758–59. Although the complaint

had not requested the specific relief of sole custody,

the requested relief was broadly stated and, in the circumstances of that case, the court properly considered

the best interests of the child. Id.

Similarly, in Petrov v. Gueorguieva, 167 Conn. App.

505, 146 A.3d 26 (2016), the trial court had modified

primary physical custody on a ground different from

that asserted in the plaintiff’s motion to modify. Id., 519.

We held that modification was appropriate nonetheless.

Id. The court was guided by the best interests of the

child, and the record revealed that the defendant had

adequate actual notice of the ground relied on and an

opportunity to contest the ground. Thus, ‘‘the [plaintiff’s] failure to raise [the] ground in filing his motion

to modify did not unduly prejudice or surprise the defendant.’’ Id., 522.

In the present case, the record shows that the defendant had notice that custody issues would be raised at

the hearing on the motion for modification. Although

her motion for continuance was formally denied, the

defendant had at least several months to prepare. The

motion to modify itself specifically requested a broader
role for the plaintiff, and the hearing took place over

a period of three months. A purpose of specificity in

pleadings is to provide notice; Petrov v. Gueorguieva,

supra, 167 Conn. App. 518–19; and here, the defendant

has not shown that notice was inadequate. Because the

defendant has failed to provide us with the transcripts

of the September 3, October 8 and November 12, 2015

proceedings, we are unable to find an abuse of discretion in the court’s decisions on the motions for modification and in limine, and we are unable to determine that

the defendant was harmed by any degree of curtailed

notice. See, e.g., Sabanovic v. Sabanovic, 108 Conn.

App. 89, 92, 946 A.2d 1288 (2008).

The judgment is affirmed.

In this opinion the other judges concurred.

1 Practice Book § 25-26 (e) provides: ‘‘Each motion for modification shall

state the specific factual and legal basis for the claimed modification and

shall include the outstanding order and date thereof to which the motion

for modification is addressed.’’

The plaintiff’s motion appears to have complied with the language of

Practice Book § 25-26 (e), in that it recited the prior order and stated a

general basis. The defendant appears to take issue primarily with the title

of the motion, ‘‘Motion for Modification of Parenting Plan–Post Judgment.’’

Her principal argument is that the motion did not provide adequate notice

that the question of legal custody would be addressed and amended.