author: DUPONT, J.

text:
    JOHN MOROCCO v. REX LUMBER COMPANY
    (AC 21931)
    Foti, Schaller and Dupont, Js.
    Argued April 29
    officially released September 24, 2002

      David M. Poirot, with whom, on the brief, was Steven F. Meo, for the appellant (plaintiff).

      Anne Kelly Zovas, with whom, on the brief, was Heather K. KLineberg, for the appellee (defendant).
   Opinion

DUPONT, J.

The plaintiff employee, John Morocco, appeals from the summary judgment rendered by the trial court in favor of the defendant employer, the Rex Lumber Company. The plaintiff claims that the court improperly ruled that his cause of action was barred by the exclusive remedy provision of the Workers’ Compensation Act (act), General Statutes § 31-275 et seq., and did not fall within the substantial certainty exception to the exclusivity provision as provided in Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105, 639 A.2d 507 (1994) (Suarez I). The sole issue of this appeal is whether there was a genuine issue of material fact as to whether the employer’s alleged intentional actions created a situation in which the employee’s injuries were substantially certain to occur. We conclude that the court correctly determined that no genuine issue of material fact exists and therefore affirm the judgment of the trial court.

The following facts, gathered from deposition testimony, affidavits and the procedural history of the case are necessary for our resolution of the plaintiffs appeal. On or about July 19,1996, the plaintiff was hired by the defendant as a machine operator trainee. Eventually, he was to become a machine operator to work on wood molding machines known as molders. A machine operator trainee first is taught to perform the duties of a handler. A handler feeds wood into a molding machine and stands at the end of the molder, feeding pieces of the lumber to be cut into the machine.

On July 24, 1996, the plaintiff was working as a handler, and was assisting Elmo Henderson, the operator of the molding machine. Henderson took a break from operating the molding machine to count the wood that had been cut. During that break, the machine was on and the blade was spinning. Henderson directed the plaintiff to spray the bed of the molder with a bottle of wax. The plaintiff had waxed the machine once before; however, on the previous occasion, the molder machine had been turned off. The plaintiff believed that he needed to lift a roller blade that covers a cutting blade to perform the job of waxing the machine. The plaintiff attempted to lift the guard with his left hand, but had difficulty lifting the roller guard. The plaintiff brought his right hand up to lift the protective hood covering the overhead rollers and his hand became caught in a spinning blade.

According to the plaintiffs complaint, as a result of the incident, the plaintiff suffered an amputation of the right index finger, a partial amputation of the right middle finger, lacerations to the right thumb and ring finger, a permanent partial disability of the right hand and mental anguish.

The molder machine came from the manufacturer with a protective guard to cover a portion of the first cutting blade that is not being used to cut the wood. At the time of the incident, the guard was missing from the first cutting blade and the entire blade was exposed. Henderson testified that the cover guard had been missing since at least October, 1995, which was nine months before the incident. Mark Humphries was the second shift foreman and the supervisor who had hired the plaintiff. The court had evidence in the form of Henderson’s deposition that Humphries was aware that trainees and handlers would occasionally perform the waxing procedure on machines of this type. Humphries testified in his deposition that he was not aware of any trainee or handlers with as little experience as the plaintiff performing any duties on that type of machine except for feeding lumber. Humphries testified that he had installed a guard on the molder over the cutting blade involved in the incident in the early hours of the morning following the incident.

The plaintiffs amended complaint alleged that the injuiy resulted from the wilful and serious misconduct of the defendant. The complaint further alleged that the defendant knew or should have known that injuiy to the plaintiff was substantially certain to occur as a result of the defendant’s intentional actions, such as forcing the plaintiff to operate the molding machine when the spinning blade was unguarded, and intentionally removing the guard and prohibiting the plaintiff from using the molding machine with a suitable guard.

The defendant filed a motion for summary judgment on the basis of its special defense that the plaintiffs cause of action is barred by the exclusive remedy provision of the act, General Statutes § 31-284 (a). After two hearings and the court’s denial of the plaintiffs motion to reargue, the court rendered judgment for the defendant.

The plaintiff claims that the evidence submitted in opposition to the defendant’s motion for summaiy judgment is sufficient to raise a genuine issue of material fact concerning whether the injury was substantially certain to have occurred because of the defendant’s intentional or deliberate acts. The court concluded, however, that the plaintiff had “offered no evidence to establish a factual predicate that the defendant knew with substantial certainty that the plaintiff would be hurt

According to Practice Book § 17-49, summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” The court must construe the evidence in the light most favorable to the nonmoving party, and “[t]he party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . .” (Internal quotation marks omitted.) Mastrolillo v. Danbury, 61 Conn. App. 693, 698, 767 A.2d 1232 (2001).

The standards for appellate review of a court’s granting of a motion for summary judgment are well established. We must determine “whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . [T]he burden is on the opposing party to demonstrate that the trial court’s decision to grant the movant’s summary judgment motion was clearly erroneous.” (Internal quotation marks omitted.) Ramos v. Branford, 63 Conn. App. 671, 677-78, 778 A.2d 972 (2001). “[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” Suarez v. Dickmont Plastics Corp., supra, 229 Conn. 105.

Workers’ compensation systems ordinarily are limited to recovery in tort actions for injuries arising in the workplace during the course of employment and compensate employees for such injuries. See Jett v. Dunlap, 179 Conn. 215, 222, 425 A.2d 1263 (1979). In most cases, the Connecticut act is a bar to independent actions filed by an employee against an employer for an injury that occurs at the workplace. See General Statutes § 31-284.

There is an exception, however, to the exclusivity provision of the workers’ compensation statute. That one exception exists when the intentional tort of an employer injures an employee or when the employer has engaged in wilful or serious misconduct. Suarez v. Dickmont Plastics Corp., supra, 229 Conn. 106. The exception gives an employee a cause of action in addition to the remedies provided by the act. Id., 117-18. “[T]he employer must have engaged in intentional misconduct, as that has been defined through our case law . . . directed against its employee. . . . Anything short of genuine intentional injury sustained by the employee and caused by the employer is compensable under the Act.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 533-34, 494 A.2d 555 (1985). The exception does not include accidental injuries caused by “gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer-short of genuine intentional injury.” (Emphasis in original.) Id., 536, citing Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985); see also Ramos v. Branford, supra, 63 Conn. App. 680.

An employee can prevail only by proving either that “the employer actually intended to injure the plaintiff (actual intent standard) or that the employer intentionally created a dangerous condition that made the plaintiffs injuries substantially certain to occur (substantial certainty standard).” Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 257-58, 698 A.2d 838 (1997) (Suarez II). The actual intent standard or test could produce inequities under some hypothetical situations, and it is, therefore, the substantial certainty standard that most often is used. See id., 258; see also Ramos v. Branford, supra, 63 Conn. App. 679.

“The substantial certainty test provides for the intent to injure exception to be strictly construed and still allows for a plaintiff to maintain a cause of action against an employer where the evidence is sufficient to support an inference that the employer deliberately instructed an employee to injure himself.” (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., supra, 229 Conn. 109-10, quoting Gulden v. Crown Zellerbach Corp., 890 F.2d 195, 197 (9th Cir. 1989).

Suarez I reversed this court’s ruling that affirmed a trial court’s granting of the defendant’s motion for summary judgment, which had been based on the exclusive remedy provision of the act. Suarez v. Dickmont Plastics Corp., supra, 229 Conn. 100-101. The plaintiff in Suarez I had alleged that the defendant (1) required the plaintiff and other employees to clean a plastic molding machine while it was running, (2) refused to allow the plaintiff to use safer methods to clean the machine and (3) refused to place a protective cover on the machine. Id., 101. The plaintiff alleged that the defendant ordered those cleaning techniques to avoid paying overtime, to save time and to avoid wasting material. Id., 102. It also was alleged that the defendant had told the plaintiff that if he used safer methods to clean the machine, his employment would be terminated. Id. Our Supreme Court stated that “the defendant’s [alleged] conduct constituted more than a mere failure to provide appropriate safety or protective measures, and that the plaintiffs injury was the inevitable and known result of the actions required of him by the defendant.” Id., 111.

Recently, this court, on at least two occasions, has affirmed the decisions of trial courts that ruled in favor of an employer in actions in which the plaintiff had claimed that the employer committed an intentional tort. See Ramos v. Branford, supra, 63 Conn. App. 671; Melanson v. West Hartford, 61 Conn. App. 683, 767 A.2d 764, cert. denied, 256 Conn. 904, 772 A.2d 595 (2001). In those cases, this court elaborated on the exception to the exclusivity provision of the act.

“[T]he plaintiff must allege facts to establish either that the employer actually intended to injure the plaintiff (actual intent standard) or that the employer intentionally created a dangerous condition that made the plaintiffs injuries substantially certain to occur (substantial certainty standard). Under either theory of employer liability, however, the characteristic element [of wilful misconduct] is the design to injure either actually entertained or to be implied from the conduct and circumstances. ... Not only the action producing the injury but the resulting injury also must be intentional.” (Internal quotation marks omitted.) Id., 688.

The substantial certainty standard still is a subset of the intentional tort exception to the act, and intent is a vital element that the plaintiff must prove. Ramos v. Branford, supra, 63 Conn. App. 679-80. “What is being tested is not the degree of gravity of the employer’s conduct, but, rather, the narrow issue of intentional versus accidental conduct.” (Internal quotation marks omitted.) Id., 680-81.

With those principles in mind, we now analyze the plaintiffs claim that the court improperly granted the defendant’s motion for summaiy judgment.

The plaintiff retained professor Igor Paul, an engineer from Massachusetts Institute of Technology, as an expert. In support of the plaintiffs objection to the motion for summary judgment, the plaintiff submitted Paul’s report, in addition to excerpts from the depositions of the plaintiff and various employees of the defendant.

The crux of the plaintiffs case is that a safety guard was missing from the molder machine, the plaintiff was not made aware of safety procedures and was not adequately trained to wax the molding machine, and that those omissions were intentional actions that were substantially certain to cause injury to him. It is undisputed that the machine was missing the guard and there was testimony that the guard was missing for a substantial period of time. There was deposition testimony that the missing guard was on order. Paul’s report discusses the fact that this was a clear violation of the federal Occupational Safety and Health Act (OSHA), 29 U.S.C. § 651 et seq., and other safety regulations. This court and the Supreme Court, however, have stated that OSHA violations are not enough to take the resulting injury out of the exclusivity provision of the act. See Suarez v. Dickmont Plastics Corp., supra, 229 Conn. 99; Mingachos v. CBS, Inc., supra, 196 Conn. 91; Ramos v. Branford, supra, 63 Conn. App. 684. As noted in Mingachos, the act contains a provision that allows for more compensation if the injury came about as a result of an OSHA violation, which demonstrates a clear intent by the legislature to have such injuries covered by the act. See Mingachos v. CBS, Inc., supra, 104; General Statutes § 31-307. In addition, there was no indication from the evidence that the guard was missing from the molding machine with the intention to increase production.

The plaintiff also contends that an employee who had been on the job for five days should not have been instructed to wax the molding machine. The plaintiff states that he was told by Humphries that he would receive additional safety instruction when more employees were hired and that the defendant had failed to provide such instruction. This court has stated that “[fjailure to take affirmative remedial action, even if wrongful, does not demonstrate an affirmative intent to create a situation that creates personal injury.” Melanson v. West Hartford, supra, 61 Conn. App. 689.

It also is important to analyze the action itself that caused the plaintiffs injury. The plaintiff states that a coemployee had instructed him to wax the machine. The plaintiff admits that he previously had waxed this particular machine when it was turned off. There is no indication that the plaintiff was instructed not to turn the machine off before waxing. Unlike the allegations in Suarez I, there was no coercion not to employ a safer method to wax the machine and no threat that the plaintiffs employment would be terminated if he did not perform the procedure in a manner that would be considered unsafe. Cf. Suarez v. Dickmont Plastics Corp., supra, 229 Conn. 101.

The plaintiff also agrees that a coemployee, not a manager, had instructed him to wax the machine. The acts of a coemployee, even a supervisor, are covered by the act. See Jett v. Dunlap, supra, 179 Conn. 217. The plaintiff argues that Humphries, the second shift supervisor, was aware that the molding machine had a missing safety guard. The plaintiff also argues that the waxing of the molding machine went beyond his duties and that Humphries was aware that other trainees frequently were instructed to wax machines like the one that caused the plaintiffs injury. Humphries denied that he was aware that trainees performed such tasks. The plaintiff also contends that Humphries can be considered an alter ego of the defendant because he was the supervisor for ten years, is in charge of hiring and disciplining employees, and organized the work schedule.

Our Supreme Court has stated that it has “consistently held that where a worker’s personal injury is covered by the act, statutory compensation is the sole remedy and recovery in common-law tort against the employer is barred. . . . This well-established principle is not eroded when the plaintiff alleges an intentional tort by his supervisor.” (Citations omitted.) Id.

The Jett court also stated that it is not enough for a supervisory employee to have committed the intentional act. “The correct distinction to be drawn ... is between a supervisory employee and a person who can be characterized as the alter ego of the corporation. If the assailant is of such rank in the corporation that he may be deemed the alter ego of the corporation under the standards governing disregard of the corporate entity, then attribution of corporate responsibility for the actor’s conduct is appropriate. It is inappropriate where the actor is merely a foreman or supervisor.” Id., 219.

Whether Humphries can be considered an alter ego for the defendant is a question of fact. We do not need to determine that issue, however, because even if Humphries was an alter ego, there was nothing submitted to the court to show that he had intended, under the substantial certainty standard, to injure the plaintiff. See Suarez v. Dickmont Plastics Corp., supra, 242 Conn. 277.

The plaintiff argues that all of the issues in dispute create issues of material fact that have to be determined by the trier of fact. The plaintiff also argues that the combined effect of not providing a safety guard and the lack of sufficient safety training created a situation that would allow a trier of fact to find that the employer had been substantially certain that the plaintiffs injury would occur. We do not agree.

“A wrongful failure to act to prevent injury is not the equivalent of an intention to cause injury.” Melanson v. West Hartford, supra, 61 Conn. App. 689 n.6. An employers’ “intentional, wilful or reckless violation of safety standards established pursuant to federal and state laws”; Ramos v. Branford, supra, 63 Conn. App. 678; is not enough to extend the intentional tort exception for the exclusivity of the act. Id. The employer must believe the injury was substantially certain to occur. Melanson v. West Hartford, supra, 690. The best the plaintiff can show is that the defendant failed to provide a safe work environment.

The plaintiff has failed to establish the factual predicate that the defendant or any alter ego of it knew with substantial certainty that the plaintiff would be hurt or that there was an affirmative intent to create a situation to harm the plaintiff.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1995) § 31-284 (a) provides in relevant part,: “An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as provided under this chapter, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. ..."

       In its memorandum of decision dated April 5, 2001, the court states that Paul’s report constitutes unsworn testimony and, as a result, cannot serve as a foundation to create an issue of fact. On April 20, 2001, the plaintiff filed a motion to reargue on the basis of his claim that the defendant’s counsel had agreed to submit Paul’s report for the court’s review without an accompanying notarized affidavit. The plaintiff also attached to the motion an affidavit by Paul. On May 7, 2001, a hearing was held on the plaintiffs motion to reargue. On May 15,2001, the court denied the plaintiffs motion and issued a memorandum of decision stating that “[t]he report of Igor Paul, even if awarded full evidentiary weight, provides no factual basis establishing a question of material fact as to whether the conduct of the defendant in failing to provide a guard for the cutter in a wood molding machine was either intentional or substantially certain to cause injury to the plaintiff, who was a trainee. Nothing in this report, or the other depositions which were previously considered, tends to demonstrate that the defendant knew that injury to the plaintiff was substantially certain to occur under the criteria which our Supreme Court and Appellate Court have set forth . . . .”
      We note that Paul’s report does not add any firsthand evidence, but contains conclusions that were based on materials submitted to him by the plaintiff. This court, therefore, considers Paul’s report and the affidavit while reviewing this appeal.

       The testimony of employee Henderson was that during the entire nine month period that he had been employed by the defendant, the guard was missing. There also was evidence presented that the missing guard had been on order for two years.

       General Statutes § 31-307 (b) provides: “Notwithstanding the provisions of subsection (a) of this section, any employee who suffers any ir\jury or illness caused by his employer’s violation of any health or safety regulation adopted pursuant to chapter 571 or adopted by the federal Occupational Safety and Health Administration and listed in 29 CFR, Chapter XVII, after the violation has been cited in accordance with the provisions of section 31-375 or the provisions of the Occupational Safety and Health Act of 1970, 84 Stat. 1601 (1970), 29 [U.S.C. §] 658 and not abated within the time fixed by the citation, provided the citation has not been set aside by appeal to the appropriate agency or court having jurisdiction, shall receive a weekly compensation equal to one hundred per cent of the employee’s average weekly earnings at the time of the injury or illness.”


source: Caselaw Access Project

author: DRANGINIS, J.

license: Public Domain

text:
    ELSA BRETHERTON v. JOHN BRETHERTON
    (AC 21201)
    Foti, Mihalakos and Dranginis, Js.
    Argued April 22
    officially released September 24, 2002

      Edward G. Fitzpatrick, for the appellant (defendant).

      Maureen M. Murphy, with whom, on the brief, were Helen D. Murphy and Lynn A. Pellegrino, for the appel-lee (plaintiff).

      Robert J. Malone, for the minor children.
   Opinion

DRANGINIS, J.

The defendant, John Bretherton, appeals from the judgment of the trial court granting the postjudgment motion to modify visitation that was filed by the plaintiff, Elsa Bretherton, and permitting her to relocate to the state of Washington with the parties’ two minor children. On appeal, the defendant claims that the court improperly applied the holding of our Supreme Court in Ireland v. Ireland, 246 Conn. 413, 716 A.2d 676 (1998) (en banc), in allowing the plaintiff to relocate with their minor children. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the defendant’s appeal. The plaintiff and the defendant were married in 1986. They had two daughters, one bom in 1988, the other in 1990. The parties’ marriage was dissolved on January 9, 1996. In dissolving the marriage, pursuant to a separation agreement that was signed by the parties, each of whom was represented by counsel, the court awarded joint legal custody of the children, whose primary physical custody was with the plaintiff. The defendant, however, was to parent the children every other weekend and at least one evening during the week. The separation agreement, which became the dissolution decree, further mandated that “[n]either party shall change the principal place of residence of the children in excess of a thirty mile radius from the[ir] current residence without sixty days advanced notice to the other party.”

At the time of the dissolution, the parties resided in Connecticut and lived within thirty miles of each other. To assist in caring for the daily needs of the children, the plaintiffs mother also lived with the plaintiff. In fact, the plaintiffs mother had resided with the plaintiff since the birth of the parties’ first child.

In 1998, the plaintiff, a telecommunications executive who earned significantly more money than the defendant, changed employment to work for a firm in Stamford. The new employment entailed a one and one-half hour commute each way. In 1999, an international company took over the plaintiffs firm, causing the plaintiff to feel dissatisfaction and insecurity about her job stability. On or about April 1, 2000, the plaintiff informed the defendant that she had accepted a new job at a company in Vancouver, Washington, and that she intended to relocate with their children, and her mother, to Washington. In response, the defendant filed a motion for a temporary restraining order to preclude the plaintiff from removing their children from the state of Connecticut, which the court granted. Soon thereafter, the plaintiff and the defendant separately filed postjudgment motions to modify visitation. In her motion, the plaintiff sought permission to relocate to Washington with the children. The defendant alternatively sought primary physical custody of the children.

A hearing on the motions ensued in which the court heard testimony from the plaintiff, the defendant and Arthur Tomak, the defendant’s expert witness in the field of executive searches. The plaintiff testified that she had worked as a manager in the telecommunications industry for the past twelve years and that she would not consider a comparable job in a different field. The plaintiff further provided that a former coworker had contacted her about applying for the position in Washington and that she had accepted the job before discussing it with the defendant. She accepted the position with the Washington firm because of the potential to earn more money than her current salaiy, her commute would be only fifteen minutes each way, thereby enabling her to spend more time with her children, and the firm appeared to be more family friendly. The plaintiff also acknowledged the lack of communication between herself and the defendant. The plaintiff moreover stated that if the court precluded the children from relocating with her, she would “have to stay in Washington [because] ... I don’t have a home here in Connecticut, I don’t have a job here in Connecticut, I’ve taken a position out there.”

At the close of the plaintiffs testimony, the defendant sought judgment in his favor on the basis of the holding in Ireland v. Ireland, supra, 246 Conn. 413. Specifically, the defendant argued: “I’d like to move for judgment . . . inasmuch as the — first two prongs of Ireland, I don’t believe have been met on the burden that the relocating parent has to carry with regard to — which is specifically set forth in Ireland, and I’ll recite that for the record .... ‘In summary, we hold, therefore, that a custodial parent seeking permission to relocate bears the initial burden of demonstrating, by a preponderance of the evidence, that (1) the relocation is for a legitimate purpose, and (2) the proposed location is reasonable in light of that purpose.’ [Id., 428.] Your Honor, I submit to the court that — based on the testimony offered by the custodial parent, which is [the plaintiff], I think it’s pretty clear, and it has really been unrebutted, that there has been no meaningful job search done by her.” Further, the defendant contended that in accepting a job in Washington, the plaintiff did not consider the impact that the move would have on her children and their relationship with him. Therefore, the defendant urged, the plaintiff failed to meet her burden pursuant to Ireland in that she had not established that her intent to relocate was inspired by legitimate motives.

The court denied the defendant’s motion for judgment. In doing so, the court stated: “The Supreme Court has imposed[d] a two-pronged standard. We all agreed on that when we first started this, and it is a burden shifting standard, and you’re right, [the plaintiff] has to prove by a preponderance of the evidence that her move was made in good faith and will enhance the children’s prospects, etc. . . . I’m faced with the dilemma that if I grant your motion, that ends the case, but I have not heard all of the evidence, and — I remain convinced that the higher standard still remains the best interest of the children. . . . So, we’re forced into a situation where I haven’t heard all the evidence, I’d like to hear all the evidence, and what I was going to pose a question to . . . counsel was, what if I agree that she hasn’t met her burden, but after hearing the evidence I believe it is in the best interest of the children that they remain with their mother, even though I believe that the mother’s actions, you know, fly in the face of the first standard. The question or the problem, dilemma, that I’m faced with is that I either fudge the standard or I ignore best interest of the children, and I haven’t heard all the — I have not prejudged the case, so my inclination is to continue with the case, to hold your motion in abeyance. I will decide it globally.”

The court then heard testimony from the defendant. The defendant testified that he worked as a self-employed contractor and earned significantly less money than the plaintiff. He stated that if granted primary physical custody of the children, he would have to hire a high school student or nanny to care for the children while he was at work, but that he did not have any help “lined up” yet. The defendant also provided that he recently had purchased a two bedroom home in Trumbull and that his new neighbors offered to watch the children if he ever needed help caring for them. The defendant’s immediate family, however, was unavailable to assist in caring for the children. The defendant also conceded that he knew very little about the school system in Trumbull and did not know the names of the schools that his children would potentially attend. The defendant further stated that the plaintiff had taken care of everything with respect to the children, including conferences with teachers and doctors’ appointments. He also stated that a strong possibility existed that if the court granted the plaintiff permission to relocate to Washington with the children, he might move there as well.

After hearing all of the evidence, the court, in a memorandum of decision, rendered judgment in favor of the plaintiff on her motion to modify and permitted her to relocate with the children to the state of Washington. In arriving at its decision, the court found that the “plaintiff mother has not sustained her burden regarding good faith for [the] move and, therefore, under the framework and criteria set forth by the Connecticut Supreme Court in the Ireland decision . . . the burden does not shift to the noncustodial parent to prove that the relocation is not in the best interest of the minor children .... That, however, while it is repugnant to, in effect, reward the patently bad behavior of one party, in this case the plaintiff mother, having heard the testimony of the parties and after careful consideration of all the facts and evidence, this court finds that it is in the overall best interest of the minor children to relocate to Washington state with their mother and, further, that this court does not believe that it was the intention of the Connecticut Supreme Court to deprive the trial court of all discretion in making a fair determination under all the circumstances of any given case and that the ultimate standard continues to be that as articulated by that tribunal, to wit: ‘We . . . take this opportunity to reaffirm that the best interests of the child must always govern decisions involving custodial or visitation matters.’ [Id., 430].”

The court later articulated that it was in the best interests of the children to relocate to Washington with the plaintiff because “the [plaintiff], having been the primary caregiver for all of their lives, is in a better position to address and to meet their day-to-day needs as well as their long-term developmental needs as they mature . . . .” Moreover, the court found that “the [plaintiffs] parenting skills are far superior to those that are currently possessed by the [defendant] .... That based upon the testimony of the [defendant], he lacks an adequate family support network, other than his new neighbors, to address some of the issues that would undoubtedly arise day to day in the raising of his daughters . . . .” The continued presence of the maternal grandmother in the plaintiffs home also played a significant tactor in the court’s determination. This appeal followed.

On appeal, the defendant essentially raises one claim, namely, that the court, in contravention of the holding in the seminal case of Ireland v. Ireland, supra, 246 Conn. 413, improperly permitted the plaintiff to relocate with the children when it found that she had failed to satisfy her burden of demonstrating that the “relocation is in good faith for a legitimate purpose and to a location that is reasonable in light of that purpose.” (Internal quotation marks omitted.) Id., 424. The defendant contends that the failure of the plaintiff to meet her initial burden of proof as set forth in Ireland precluded the court from allowing her to relocate with the children. We are not persuaded.

“A trial court is in an advantageous position to assess the personal factors so significant in domestic relations cases, and its orders in such cases will not be reversed unless its findings have no reasonable basis in fact or it has abused its discretion, or unless, in the exercise of such discretion, it applies the wrong standard of law. . . . [W]e do not review the evidence to determine whether a conclusion different from the one reached could have been reached.” (Internal quotation marks omitted.) Azia v. DiLascia, 64 Conn. App. 540, 549, 780 A.2d 992, cert. denied, 258 Conn. 914, 782 A.2d 1241 (2001). The parties here do not contest the court’s factual findings. Rather, the defendant challenges the court’s conclusion of law on the basis of the precedent of our Supreme Court, which led the trial court to its ultimate decision. Our review, therefore, is plenary, and we must determine whether the court’s conclusion was legally and logically correct and in accordance with the holding in Ireland. See DeSena v. Waterbury, 249 Conn. 63, 72-73, 731 A.2d 733 (1999). We further note in our review that this issue is a matter of first impression before this court.

Relocation cases, such as the one before us, present some of the most complicated problems that courts are called on to resolve. See Ireland v. Ireland, supra, 246 Conn. 421; Tropea v. Tropea, 87 N.Y.2d 727, 736, 665 N.E.2d 145, 642 N.Y.S.2d 575 (1996) (“Relocation cases . . . present some of the knottiest and most disturbing problems that our courts are called upon to resolve”). Usually, in relocation cases, there is no good or right answer, especially for the child. That is so regardless of the level of parental conflict in the postjudgment family. The decision of the custodial parent to relocate causes a disruption and reordering of the child’s relationship with the noncustodial parent. Our Supreme Court in Ireland v. Ireland, supra, 431-32, adopted a burden shifting approach and the factors set forth by the New York Court of Appeals in Tropea to address and to analyze fairly the tangled myriad of issues that arise when a postjudgment, custodial parent intends to relocate. Therefore, a just resolution of the claim necessitates an overview and careful analysis of our Supreme Court’s decision in Ireland.

Prior to our Supreme Court’s decision in Ireland, courts were guided by the best interest of the child standard as set forth in General Statutes § 46b-56 (b) in deciding postjudgment relocation disputes. In Ireland, our Supreme Court sought to elucidate the appropriate standards for determining postjudgment relocation issues. Our Supreme Court held that “a custodial parent seeking permission to relocate bears the initial burden of demonstrating, by a preponderance of the evidence, that (1) the relocation is for a legitimate purpose, and (2) the proposed location is reasonable in light of that purpose. Once the custodial parent has made such a prima facie showing, the burden shifts to the noncustodial parent to prove, by a preponderance of the evidence, that the relocation would not be in the best interests of the child.” Ireland v. Ireland, supra, 246 Conn. 428. To evaluate the best interest of the child, our Supreme Court further adopted the factors as enumerated by the New York Court of Appeals in Tropea v. Tropea, supra, 87 N.Y.2d 727. “These factors are: ‘[E]ach parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent, the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements.’ [Another relevant factor is] ‘the negative impact, if any, from continued or exacerbated hostility between the custodial and noncustodial parents, and the effect that the move may have on any extended family relationships.’ ” (Citation omitted.) Ireland v. Ireland, supra, 431-32, quoting Tropea v. Tropea, supra, 740-41.

The issue now arises whether our Supreme Court, in articulating that burden shifting scheme, intended summarily to preclude a custodial parent who fails to demonstrate by a preponderance of the evidence “that the relocation is for a legitimate purpose and, further, that the proposed location is reasonable in light of that purpose”; Ireland v. Ireland, supra, 246 Conn. 425; from relocating with the parties’ minor children without also considering the best interests of the children. Our reading of Ireland causes us to conclude that our Supreme Court did not intend to abandon the legal standard for custody decision-making solely on a custodial parent’s failure to meet the initial burden of proof.

At the very outset of its analysis in Ireland, our Supreme Court announced that it had created the burden shifting scheme to further “our commitment to the best interests of the child standard . . . .” Id., 421. Moreover, after articulating the shifting burdens of proof, our Supreme Court again took the “opportunity to reaffirm that the best interests of the child must always govern decisions involving custodial or visitation matters.” Id., 430. There is nothing in the language of Ireland to suggest that the burden shifting scheme, in particular with respect to the custodial parent’s initial burden of proof, supersedes the standard of the best interest of the child. Rather, our Supreme Court explicitly provided that the salient inquiry remains that of the best interest of the child involved. Therefore, the failure of the custodial parent to meet his or her initial burden cannot in and of itself end the matter in relocation cases. To predicate a decision whether to permit relocation on the basis of parental conduct only, even when that conduct appears unreasonable or illegitimate, would be to ignore the needs of the child and to reduce the court’s inquiry to assessing the parents’ action only.

In adopting the shifting burdens of proof, our Supreme Court relied on the standards set forth by the American Law Institute in its Principles of the Law of Family Dissolution: Analysis and Recommendations (Tentative Draft No. 3, Pt. I, March 20,1998) (Principles of the Law of Family Dissolution). Ireland v. Ireland, supra, 246 Conn. 424. The Ireland court actually formulated the custodial parent’s burden on the basis of the American Law Institute’s recommendations. Moreover, our Supreme Court found the relevant provisions in the Principles of the Law of Family Dissolution to be a useful means to address its concern about custodial parents who intend to relocate without a legitimate motive. Id.

Although the Principles of the Law of Family Dissolution does not necessarily recommend a burden shifting approach, it does provide that “[a] parent who has been exercising a significant majority of the custodial responsibility for the child should be allowed to relocate with the child so long as that parent shows that the relocation is in good faith for a legitimate purpose and to a location that is reasonable in light of the purpose.” Principles of the Law of Family Dissolution, supra, § 2.20 (4) (a). The Principles of the Law of Family Dissolution then establishes, however, that if “a parent does not establish that the purpose for that parent’s relocation is in good faith for a legitimate purpose and to a location that is reasonable in light of the purpose, the court may modify the parenting plan in accordance with the child’s best interests and the effects of the relocation on the child. Among the modifications the court may consider is a reallocation of primary custodial responsibility, effective if and when the relocation occurs, but such a reallocation should not be ordered if the relocating parent demonstrates that the child’s best interests would be served by the relocation.” (Emphasis added.) Id., § 2.20 (4) (c). Accordingly, the American Law Institute, on which our Supreme Court relied, advocates that the failure of a custodial parent to demonstrate the legitimacy of a proposed relocation does not preclude a finding that it is in the best interest of a child to permit relocation.

The concurring opinions in Ireland by Associate Justice David M. Borden and Associate Justice Richard N. Palmer provide further guidance and support for our conclusion. In his concurrence, Justice Palmer stated “that the burden allocation scheme the majority adopts today will be dispositive only in those rare cases in which the evidence adduced regarding the best interests of the child with respect to relocation is in equipoise.” Ireland v. Ireland, supra, 246 Conn. 444 (Palmer, J., concurring). Moreover, Justice Palmer stated that “the burden allocation scheme adopted by the majority is fully consistent with the statutory mandate that the sole consideration in custody matters be the child’s best interests . . . .” (Emphasis added.) Id., 445 (Palmer, J., concurring). Justice Borden in his concurrence agreed with Justice Palmer’s characterization of when the allocation of the burden of proof is dispositive, but warned that courts should not lose sight of the other significant aspects of the burden shifting scheme. Id., 441 (Borden, J., concurring). Most significantly, however, Justice Borden elucidated that the court had announced the burdens of proof in postjudgment relocation cases, in part, to “[provide] a structure for the trial court regarding how to think about the case as it hears the evidence. ” Id. (Borden, J., concurring). Clearly, those two justices in their concurring opinions did not contemplate that the adoption of a burden allocation scheme would result in the abrogation of the inquiry into the best interest of the child in a relocation case simply due to the failure of the custodial parent to satisfy his or her initial burden.

The defendant in his brief contends that to continue the inquiry after a custodial parent fails to meet his or her initial burden renders the “burden shifting mechanism . . . meaningless, a nullity, the effect of which would be to permit trial courts to consider issues of relocation without the plaintiff having ever sustained her initial burden as required under Ireland,.” We cannot agree with that argument. As Justice Borden implicitly recognized and Justice Palmer explicitly stated, the burden shifting approach provides a method for the court to analyze postjudgment relocation issues, with the best interest of the child forming the basis of that methodology. Our Supreme Court did not intend for the burden shifting analysis to act as a means to preclude an inquiry into the best interest of the child. Accordingly, it does not follow that evaluating the best interest of the child, despite a custodial parent’s inability to prove the legitimacy of a proposed relocation by a preponderance of the evidence, in any way erodes the purpose and goal of the burden shifting scheme.

This is not to state that a court should overlook or ignore the failure of the custodial parent to demonstrate that “the relocation is for a legitimate purpose and . . . is reasonable in light of that purpose.” Id., 425. Rather, the Ireland court clearly emphasizes that such a failure plays a significant role in determining the best interest of the child. Specifically, that significance is demonstrated by the Ireland court’s endorsement of Tropea v. Tropea, supra, 87 N.Y.2d 727, which stated that one of the factors in determining the best interest of the child is “[e]ach parent’s reasons for seeking or opposing the move . . . .” (Internal quotation marks omitted.) Ireland v. Ireland, supra, 246 Conn. 431-32.

In the present case, the court seriously and heavily weighed the plaintiffs failure to prove the legitimacy of the proposed relocation in permitting her to relocate and ultimately in modifying the custody orders. In response to the plaintiffs actions, the court ordered that the plaintiff “shall bear the financial responsibility for the basic costs associated with the exercise of visitation by the father . . . .” The court ordered that the plaintiff must incur all of the costs for the defendant’s airfare, car rental and hotel while he exercises visitation in Washington state. Moreover, the court established a generous visitation schedule, granting the defendant visitation in Washington state for three to four nights every month. The court also ordered that the children visit the defendant in Connecticut for one week during the February school vacation, for four weeks total during July or August and also for four nights in December, including Christmas Eve. The court mandated that the plaintiff bear the entirety of the costs for the children to travel to Connecticut, including the costs for a responsible adult to accompany the minor children to and from their visitation. Finally, the court declined to award any child support due to “the factors enumerated in the findings of [the] court.” On the basis of our analysis and the facts previously set forth, we conclude that in fashioning its orders, the court acted in accordance with Ireland.

The defendant further invokes several cases to support his proposition that the plaintiffs failure to meet her burden of proof and, thus, her failure to “establish a prima facie case,” warranted the court’s dismissal of the matter. The defendant cites to cases in which we affirmed the trial court’s dismissal of matters on the basis of the plaintiffs failure to make out a prima facie case pursuant to Practice Book § 15-8. Each case cited involves postjudgment motions for modification not involving the issue of relocation. Particularly, the defendant relies on Walshon v. Walshon, 42 Conn. App. 651, 681 A.2d 376 (1996). We conclude that the defendant’s reliance on Walshon, and other cases cited in his brief, is misplaced. Given our conclusion that the Ireland court did not intend to establish a prima facie burden with a preclusive effect on custodial parents, those cases fail to persuade.

In Walshon, the defendant mother, the noncustodial parent, appealed from the judgment of the trial court dismissing her postjudgment motion for modification of custody where she had failed to demonstrate a substantial change in circumstances as a prima facie case. Id., 652. Affirming the trial court’s dismissal, this court held that “[our Supreme Court] has limited the broad discretion given the trial court to modify custody orders under General Statutes § 46b-56 by requiring that modification of a custody award be based upon either a material change of 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.” (Emphasis added.) Walshon v. Walshon, supra, 42 Conn. App. 657. We concluded that the court properly based its decision on both of those critical considerations. Id.

Central to our decision in Walshon and our review of modifications of custody orders pursuant to § 46b-56 in general is the concept that courts must be guided by the best interest of the child. See, e.g., Perez v. Perez, 212 Conn. 63, 80, 561 A.2d 907 (1989); Hall v. Hall, 186 Conn. 118, 120-21, 439 A.2d 447 (1982); Kelly v. Kelly, 54 Conn. App. 50, 56, 732 A.2d 808 (1999); Brubeck v. Bums-Brubeck, 42 Conn. App. 583, 585, 680 A.2d 327 (1996). In fact, the overriding inquiry in modification issues remains the best interest of the child. Hall v. Hall, supra, 121. Accordingly, in Walshon, the trial court dismissed the defendant’s motion for modification after it found a lack of a change in material circumstance and that modification was not in the best interest of the child. Walshon v. Walshon, supra, 42 Conn. App. 657.

Relocation presents the court with a substantial change in circumstances for the child and the parents. The cases cited by the plaintiff would require the court to move on to a best interest analysis. Walshon describes a nonrelocation modification procedure that allows the court to manage parental conflict, which is antithetical to the best interest of the child. The court has an interest in protecting children in high conflict, overlitigated matters, where the preliminary showing of a substantial change in circumstances as described in Walshon is critical to the corut’s exercise of its authority over particular contestants. Where a change of circumstances is not demonstrated at the two-pronged hearing, the parties should properly be deprived of their forum for conflict.

We recognize the temptation to end the inquiry when a custodial parent intends to relocate without a legitimate purpose. That procedural stumbling block, however, would thwart the overarching statutory mandate of the best interest of the child. Relocation issues cannot be considered in a vacuum. To maintain a child focused analysis in relocation issues; see Ireland v. Ireland, supra, 246 Conn. 420-21; the failure of a custodial parent to meet his or her initial burden cannot have a preclusive effect. As the New York Court of Appeals aptly observed in Tropea v. Tropea, 87 N.Y.2d 727, the case on which the Ireland court relied: “While the respective rights of the custodial and noncustodial parents are unquestionably significant factors that must be considered ... it is the rights and needs of the child that must be accorded the greatest weight, since they are the innocent victims of their parents’ decision to divorce and are the least equipped to handle the stresses of the changing family situation.” (Citation omitted.) Id., 739.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also challenges the court’s denial of his motion for judgment at the close of the plaintiffs case. The defendant sought judgment on the identical ground that he now raises with respect to the granting of the plaintiffs motion to modify visitation and to permit relocation. Therefore, our resolution regarding the granting of the plaintiffs motion to modify visitation and to permit relocation is dispositive of the defendant’s claim that the denial of his motion for judgment was improper.

       Tómale testified regarding various managerial positions available in the Connecticut and New York City region, but, acknowledged that there were no current job openings in the telecommunications industry.

       The “patently bad behavior” to which the court referred was the plaintiffs failure to be forthcoming with the defendant and to disclose her intention to relocate.

       We note that whether the court properly found that the plaintiff had failed to demonstrate that the proposed relocation was in good faith and for a legitimate purpose is not an issue before us on appeal. We, accordingly, do not make any findings in that regard.

       We note that the attorney for the minor children filed a brief on their behalf regarding the issue raised in this appeal. In the brief, counsel argues that the court properly concluded that it was in the best interests of the children to permit them to relocate with the plaintiff.

       It must be noted that noncustodial parents are seemingly free to relocate and to disrupt the parent-child relationship without interference or court involvement.

       General Statutes § 46b-56 (b) provides in relevant part: “In making or modifying any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the child . . . .”

       Our Supreme Court further noted that examples of legitimate purposes to relocate may be: “[T]o be close to significant family or other support networks, for significant health reasons, to protect the safety of the child or another member of the child’s household from a significant risk of harm, to pursue a significant employment or educational opportunity, or to be with one’s spouse . . . who is established, or who is pursuing a significant employment or education opportunity, in another location. ... We emphasize, however, that this list is not exclusive . . . .” (Internal quotation marks omitted.) Ireland v. Ireland, supra, 246 Conn. 424-25 n.5.

       We note here that in announcing the burden shifting scheme, the Ireland court stated: “We must recognize the possibility, however, that a custodial parent could be motivated to relocate, not by a desire to build a new and better life for the child and the new family unit as a whole, but rather, for example, by a vindictive desire to interfere in the relationship between the noncustodial parent and the child. Such an improper motive should not serve as the basis for a decision to put a greater distance between a noncustodial parent and a child.” Ireland v. Ireland, supra, 246 Conn. 424. We first point out that no such vindication is alleged here. Moreover, we do not read this to mean that an improper motive precludes an inquiry into the best interest of the child.

       Practice Book § 15-8 provides in relevant part: “If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced evidence and rested his or her cause, the defendant may move for judgment of dismissal, and the judicial authority may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. ...”