Opinion
No. FA 03-0477510S
April 22, 2005
MEMORANDUM OF DECISION
The plaintiff brought this action to dissolve her marriage to the defendant by return date of May 20, 2003. The complaint and amended cross-complaint alleged irretrievable breakdown of the marriage, but midway though trial plaintiff amended her complaint without objection to allege instead intolerable cruelty by the defendant as the grounds for the dissolution. The parties appeared with counsel for trial, which began on December 6, 2004, and continued for nine more days that month and in January, February and March of 2005. Each party testified, as did the plaintiff's sister and her best friend, the husband's brother and father, three teachers, the manager of a local McDonald's franchise, the supervisor of the Family Clinic at Southern Connecticut State University, a former family relations counselor who conducted a court-ordered custody study completed on July 2, 2004, and the court-appointed guardian ad litem. Both parties seek sole custody of the minor children and possession of the marital home. The wife also seeks alimony and counsel fees, neither of which the husband wants to pay. Other financial orders are also in dispute.
The court has observed the demeanor of the parties and witnesses and evaluated their credibility. The court has carefully considered all of the evidence, including the exhibits and testimony presented, according to the standards required by law. The court has carefully considered the statutory criteria for dissolving a marriage and entering orders regarding custody, visitation, child support, alimony, counsel fees, and equitable division of property and debt.
I. JURISDICTIONAL FINDINGS
The court finds that it has jurisdiction over the marriage. One party has resided in Connecticut continually for more than one year prior to the bringing of this action. The parties were married in East Haven, Connecticut, on July 30, 1995. They have three minor children: Jenna, born on October 11, 1994, Scott, born on May 18, 1997, and Briana, born on February 12, 1999. The parties have not received any state or municipal financial assistance. The marriage between the parties has broken down irretrievably with no reasonable hope of reconciliation.
In her amended complaint, the plaintiff alleges that the marriage broke down as a result of intolerable cruelty. Intolerable cruelty requires willful, intentional and deliberate acts that induce unnecessary pain. These acts must have the cumulative effect of making the marital relations unbearable. Vanguilder v. Vanguilder, 100 Conn. 1, 122 A. 719 (1923). Although the court here makes numerous findings about the verbal and emotional abuse to which the defendant subjected the plaintiff, and the debilitating effect on her of that abuse, this is not a case in which intolerable cruelty caused the breakdown of the marriage. The parties got married after the birth of their first child. Both parties testified that the marriage was broken from the first day. Ms. La Fontaine, for example, testified that there never really was a marriage and that she knew the parties were not right for each other before they got married but she wanted to have children and a family and loved Mr. La Fontaine. She admitted that even before the marriage Mr. La Fontaine was abusive, controlling, and manipulative. Mr. La Fontaine testified that he had not loved Ms. La Fontaine but only got married to give their unborn child a father in an intact family. Each party here believed that it was mistreated by the other. Ms. La Fontaine acknowledged, for example, swearing at and verbally fighting with her husband and calling him names. The court had opportunity to view the demeanor of the parties and, in a few instances during trial, their interaction. On one of those occasions, during Ms. La Fontaine's testimony, she yelled at Mr. La Fontaine to stop staring at her, although the court saw him acting entirely appropriately for the courtroom. On another occasion, the parties became engaged in a loud dispute inside the courtroom. From these opportunities to observe the parties interact, the court concludes that, although Mr. La Fontaine may have been verbally abusive toward Ms. La Fontaine, she was sometimes also verbally abusive toward him. Moreover, "[w]here more than one ground for a divorce is claimed and one alleged ground is proved, it is immaterial whether or not an additional statutory ground or grounds may also exist." Hollingsworth v. Hollingsworth, 180 Conn. 212, 214, at fn. 2, 429 A.2d 463 (1980), citing Christoni v. Christoni, 156 Conn. 628, 629, 239 A.2d 533 (1968). The finding of fault is relevant, however, to the distribution of property and award of alimony, and the court has considered such fault here in its orders.
II. PARENTING ISSUES
The care and custody of the three minor children are the central issues in this case. These are questions in which the court must be guided by the best interest of the minor children. See General Statues § 46b-56(b). Much has been written about the meaning of this term. As courts have pointed out in myriad decisions affecting children, though the term "best interest of the child" may not have scientific precision, it "does not lack metes and bounds." State v. Anonymous, 179 Conn. 155, 165, 425 A.2d 939 (1979)."Standards of mathematical precision are neither possible nor desirable in this field, much must be left to the trial judge's experience and judgment." Id. As our Supreme Court noted in Cappetta v. Cappetta, 196 Conn. 10, 16-17, 490 A.2d 996 (1985):
The award of custody requires the trial court to make difficult and sensitive inquiries into the relationships between adults and children. In the search for an appropriate custodial placement, the primary focus of the court is the best interests of the child, the child's interest in sustained growth, development, well-being, and in the continuity and stability of its environment . . . It is essential to inquire into each person's parenting skills as well as his or her relationship with the child.
(Citations omitted.) "This involves weighing all the facts and circumstances of the family situation. Each case is unique." Gallo v. Gallo, 184 Conn. 36, 43, 440 A.2d 782 (1981).
Many factors may affect such a determination. See, e.g., Ireland v. Ireland, 246 Conn. 413, 452, 717 A.2d 676 (1998); Janik v. Janik, 61 Conn.App. 175, 180, 763 A.2d 65 (2000); Rudolewicz v. Rudolewicz, 12 CLT No. 39, p. 664, Superior Court, judicial district of Hartford-New Britain (October 6, 1986, Arena, J.). It encompasses concerns such as those mentioned above in Capetta v. Capetta, the child's specific needs, the nature of the child's relationship with each parent, the degree of contact maintained with each parent, the potential benefit or detriment of retaining that connection with each parent, and many other potential factors. "The best interest standard is inherently flexible and fact-specific to each child, giving the court broad discretion to consider all the different and individualized factors that might affect a specific child's welfare." In re Diane W., Superior Court for juvenile matters, child protection session at Middletown (December 21, 2002). While a court may take into consideration the opinion of a family relations counselor, Yontef v. Yontef, 185 Conn. 275, 281, 440 A.2d 899 (1981); and that of the guardian ad litem, Janik v. Janik, supra, 61 Conn.App. 181, the court is not bound by the testimony of either witness as to individual best interest factors or their opinion as to the ultimate issue. In making its decision here, this court has considered the body of case law regarding best interest, the specific facts of this case, the testimony and credibility of the various witnesses here, and the court's assessment and evaluation of the best interest of the three specific children affected here.
Since March 2004, the parties have shared joint physical and legal custody of the minor children in what they refer to as a "nesting" arrangement, pursuant to which the children remained in the marital home and Mr. and Ms. La Fontaine alternated living there during different parts of the week — the mother from Sunday at 9:00 a.m. to Thursday at 9:00 a.m., and the father from Thursday at 9:00 a.m. to Sunday at 9:00 am. When not living in the marital home, the father stays next door with his parents, but the mother has had no permanent residence. According to all accounts, the children have done well in this arrangement, which the family relations counselor recommended should remain in place.
Neither party is satisfied with the nesting arrangement, however, and each one requests primary physical custody and sole legal custody. Both parties, moreover, present strong claims to support their requests for sole custody. Evidence presented by Ms. La Fontaine at trial shows that her husband was verbally abusive and degrading to her throughout the marriage. He insulted her on a daily basis, calling her derogatory names such as "loser," "a leech," "a rotten mother and wife," "an empty shell of a person," and vulgar epithets, often in front of the children. For years she heard such gibes as "go stand in the street and get hit by a car" and "all she does is breathe and take up space." Mr. La Fontaine blamed his wife for everything that went wrong and, the evidence compellingly showed, would distort the facts to do so. Calling her an unfit mother, he took over bathing the children, taking them for haircuts, and the family shopping — all tasks the mother had once done but that he assumed because he said she could not do them competently. After ten years of marriage, Ms. La Fontaine felt "stripped of [her] identity as a mother, wife and person."
Mr. La Fontaine's urge to reprimand his wife is so strong that, even during counseling sessions with his wife and children in the Supervised Visitation Program at the Family Clinic at Southern Connecticut State University, he repeatedly was rude and accusatory to her, criticized her, and spoke harshly to her. The parties took their children to the SCSU clinic for counseling because they were concerned about the effect of the divorce on the children. To assess the children's behavior and the effect on them of the conflict between their parents, the clinic scheduled separate sessions with the children for each parent. When Mr. La Fontaine repeatedly criticized his wife in his two sessions with the children, the clinic stopped the sessions with the children because the clinic believed the children would be harmed by continuing to witness the conflict between their parents. The clinic decided instead to meet just with the parents to try to help them work together for the benefit of their children, but during the joint sessions Mr. La Fontaine "continually yelled at and accused his wife of neglectful parenting." (Case Summary, p. two, plaintiff's exhibit 20.) The clinician ended each of the three joint sessions early because Mr. La Fontaine continually violated the clinic's rules against interrupting and blaming statements. Southern finally stopped working with the La Fontaines after concluding that the "therapy [was] not helping [the] situation" because of Mr. La Fontaine's unwillingness (or inability) to stop verbally and emotionally abusing his wife.
On the other hand, Mr. La Fontaine has presented strong evidence that his wife has a physiological or psychological condition that causes her to become fatigued and fall asleep during normal waking hours. Two vivid incidents were proven at trial: the first was in 2001, when she fell asleep one evening in her car in a store parking lot with the vehicle's engine running, and emergency personnel came to the scene to revive her; the other was at McDonald's in 2004, when she fell asleep and left the children without supervision until interrupted by another customer and the store manager. An alarmed customer reported to a store employee that Ms. La Fontaine appeared high and intoxicated and that her children were running around; this person later told the guardian ad litem that Ms. La Fontaine was "nodding off." The husband also presented evidence of other similar but less dramatic incidents, such as her falling asleep at a bingo game, on the toilet, or while eating.
There is reason in the evidence and from the parties' demeanor at trial to credit both parties' accounts of the other. For example, a neighbor told the guardian ad litem that she regularly heard Mr. La Fontaine yelling at Ms. La Fontaine. Mr. La Fontaine showed his lack of respect for his wife from the first moment of his testimony, when he said that he could not recall the date of the marriage and tries to forget it. Throughout the trial he displayed an inability to control his anger or behavior, and the court repeatedly admonished him for speaking up while others were talking. Ms. La Fontaine's account of how her husband treated her was credible and persuasive.
Yet the evidence about Ms. La Fontaine's sleeping and fatigue is also credible and deeply troubling. In one of her sessions with the children at Southern, for example, she was so fatigued that she could not respond adequately to the children's anger and clinic staff concluded that "[m]other is definitely overwhelmed." (Case notation, session five, plaintiff's exhibit 20.) She admitted to the family relations counselor that she had fallen asleep while eating. She never satisfactorily explained the statement, in an exhibit she introduced, by a psychiatrist who treated her from 1995 to 2000 that she had a "medical diagnosis of chronic fatigue syndrome." (Pl.'s ex. 28.) The family relations officer concluded that Ms. La Fontaine's sleeping problem limits her ability to function. (Def.'s ex. E., Family Division Evaluation Report, p. 8.)
Although Ms. La Fontaine has an excuse for every episode and had a physical examination from her regular doctor after the family relations officer concluded that "Mr. La Fontaine's concern about his wife's chronic fatigue appears valid given the recurring incidents that Mr. La Fontaine notes and Ms. La Fontaine acknowledges" and recommended that "its derivation needs to be resolved," this court is not persuaded that there is no problem. She has not had a medical evaluation by a physician who specializes in sleep disorders. Her explanations sounded hollow and were unconvincing — although obviously the court has no medical training or expertise and would have preferred that expert medical opinion address the issue. During trial the court considered ordering her to submit to such an examination, but did not because doing so would have postponed the end of the trial, which the court concluded would be detrimental to the best interest of the children. Although the guardian ad litem insisted to the court during her testimony that she was not concerned about Ms. La Fontaine in this respect and is "confident" that the mother "is physically able to care for the children," this court still has serious concerns in view of the number, frequency and variety of incidents that have occurred in which Ms. La Fontaine has appeared to fall asleep when one would ordinarily not be expected to do so. The court finds that it is in the best interest of the minor children for Ms. La Fontaine to have an immediate medical examination by an appropriate medical specialist to determine if she continues to suffer from chronic fatigue syndrome or has any other medical or psychiatric disorder that would cause her to become excessively tired or fall asleep while caring for the children.
Mr. La Fontaine also claims that his wife is a poor disciplinarian and does not respond adequately to their social, medical or nutritional needs. The evidence does show that Ms. La Fontaine has difficulty controlling and disciplining the children. The guardian ad litem, for example, referred to Ms. La Fontaine as a "pushover." When the children were playing in the backyard during the guardian ad litem's visit to the family home during the mother's nesting time, Scott ignored his mother's repeated instruction that he stop riding his bicycle in a dangerous manner, and Jenna would not obey Ms. La Fontaine or pay attention to her mother's efforts to discipline her.
But the evidence also offers some explanation for the overall discipline problem and for Ms. La Fontaine's difficulty dealing with Jenna. She has gone through six very difficult years. In 1999 she was diagnosed with breast cancer. The ensuing mastectomy and other treatment were emotionally and physically exhausting. Her husband gave her no support during or after her treatment. She has seen a psychiatrist and been on medication for many years for problems with depression and panic attacks. During the nesting arrangement for the last year, she has not had a home of her own when not staying at the marital home. Her husband has told their oldest child, Jenna, to call the police if she does not like discipline being imposed by her mother. Jenna has begun to mimic her father's attitude and behavior toward Ms. La Fontaine and has even called her mother a "loser." (After the nesting arrangement began, Jenna became defiant and disrespectful toward and did not get along well with Ms. La Fontaine. Mr. La Fontaine also claimed at trial that Jenna was having difficulty getting along with friends.) Mr. La Fontaine's superior income and control over the marital assets gave him financial resources during the divorce that have enabled him to buy presents and take the children out for meals and other occasions that Ms. La Fontaine could not afford for them. Her confidence and self-esteem sapped by years of verbal abuse and humiliation from her husband, she has been afraid during this heated custody battle that if she disciplined the children too much he would win them over with his superior financial resources.
Jenna, the parties' oldest child, has begun to believe that her father's insults present a truthful picture of her mother and so come under his influence that she will believe what he tells her about her mother even when knows differently from her own senses and first-hand information. For example, in September 2004 while the guardian ad litem was visiting at the marital home, the children showed her their pet rabbit that they kept in an hutch in the backyard. All three children and the GAL saw that the rabbit was alive that day. Yet the next day, when Mr. La Fontaine said that the rabbit had been dead three days, Jenna agreed with him, even though she had personally seen the rabbit alive the day before.
The evidence does not, however, confirm Mr. La Fontaine's claims that Ms. La Fontaine fails to meet the children's other needs. Although he insists that Jenna has eating problems that result from the way her mother has always fed her, that his wife has not sought or made proper medical decisions regarding Jenna's congenital heart disorder, and does not provide enough social opportunities for the children, the evidence refutes his claims in each of these respects. He mischaracterized the statements of the school nurse in order to convince himself that Jenna has a nutritional problem that he could blame without justification on Ms. La Fontaine. Although he blamed his wife for not getting a second medical opinion before Jenna's heart surgery, he could just as easily have sought the second opinion but instead chose to blame his wife for not doing so. There is absolutely no credible evidence that Ms. La Fontaine has shortchanged her children on their need for social contacts with friends, in fact the evidence suggests the very opposite.
There are thus significant issues to consider with regard to each party's claim for sole custody. The court is seriously concerned that the children will be adversely affected by the father's constant bad-mouthing of their mother. The clinic sessions at Southern show that he continually denigrates Ms. La Fontaine, even when around the children. During trial he repeatedly showed that he does not have good ability to control his behavior, and therefore even if he promised or intended never again to castigate his wife round the children, there is no reason to believe that he would be able to refrain from doing so. Although the clinical supervisor at the SCSU clinic, Dr. Suzanne Carroll, told the guardian ad litem that Dr. Carroll did not believe the children were at risk of internalizing his comments about their mother, the court did not have the opportunity to question Dr. Carroll about this comment and views it with skepticism. Dr. Carroll also testified that the strongest predictor of children's well-being after a divorce is the relationship between their parents. Moreover, just as the court in a custody case may consider the willingness of a parent to facilitate visitation with the other parent, Seymour v. Seymour, 180 Conn. 705, 713 (1980); a court may also consider the related factor of the willingness of the parents to facilitate the child's relationship with the other parent. Although Mr. La Fontaine verbally acknowledges that the children need to have a good relationship with their mother, he seems unaware of the risk that his constant criticism of her in front of them may be detrimental to them or to their relationship with their mother.
Similarly, the court is concerned about the possible risks to the children of the mother's possible sleep disorder. For her to fall asleep and leave them unsupervised could subject the children, especially the two younger ones to serious jeopardy. Yet the evidence shows that the risk is not as grave as it might seem. In so concluding, the court has considered the conduct and attitudes of the people who know Ms. La Fontaine the best and have witnessed most frequently her ability to care for the children. Before this action, she was the primary caretaker of the minor children. For many years Mr. La Fontaine left for work early in the morning and arrived home in the evening while entrusting the care of the children to his wife, without any harm to them. His conduct during those years shows that he believed she was able to take proper care of the children without risk to them and casts serious doubt on his claim as to the number of times his wife has fallen asleep inappropriately. During the nesting arrangement the last year, Ms. La Fontaine has stayed with the children in the marital home Sunday morning through Thursday morning each week without harm to them. The marital home is next to the home of the paternal grandparents, who see the minor children and both parents all the time. Raymond La Fontaine, the defendant's father, testified at trial and spoke to the family relations counselor, yet the court heard of no criticism from him of the mother's ability to provide the children with proper care. Moreover, neither the guardian ad litem nor any of the three teachers who testified at trial have ever seen a tendency on Ms. La Fontaine's part to fall asleep inappropriately. Nor did she display any such tendency during trial but instead appeared alert throughout these proceedings.
Thus, although each party has raised serious and legitimate questions about the other's claim for sole custody, the court concludes that Mr. La Fontaine's anger, his lack of impulse control, and his constant disparagement of the plaintiff pose far more obstacles to his claim than does the evidence about Ms. La Fontaine's possible sleep or fatigue problem to her claim. The evidence shows that she is capable of caring properly and adequately for the children. Until Mr. La Fontaine can learn to control his predilection to denigrate Ms. La Fontaine, on the other hand, he is not a suitable sole or primary custodian for the children.
Although both parties requested sole custody, the guardian ad litem recommended joint custody as in the best interest of the minor children, and the family relations counselor recommended shared custody. The evidence confirms the conclusions of the family relations counselor and GAL that both parents are capable of adequately addressing the children's day-to-day needs, that both parents love their children, and that all three children are attached to both parents and want both parents involved in their lives. The GAL testified that two recent incidents show the ability of the parties to cooperate in meeting the children's needs. As a result of her recommendation for joint legal custody, the court asked both parties to brief whether the court could adopt the GAL's recommendation despite neither party requesting joint custody. Their briefs, citing Emerick v. Emerick, 5 Conn.App. 649, 657, 502 A.2d 933 (1985), cert. dismissed, 200 Conn. 804, 510 A.2d 192 (1986), and Tabackman v. Tabackman, 25 Conn.App. 366, 593 A.2d 526 (1991), have persuaded the court that joint custody is not a legal option in this case.
As discussed above, the evidence does show that problems have arisen since the dissolution began in the relationship between the parties' oldest daughter, ten-year-old Jenna, and Ms. La Fontaine. Without expert psychological evidence, however, the court is unable to determine whether Jenna's behavior results from parental alienation fostered by the father's conduct, the early arrival of normal conflict between mother and adolescent daughter, a psychiatric disorder, or an emotional response to the breakup of the family. The court will order counseling for mother and daughter to address this problem.
The guardian ad litem testified that one reason she recommended joint custody was that Mr. La Fontaine often displayed "good instincts" in his decisions regarding the children and thus the GAL seeks to have him involved in the decision-making. She gave as an example his insistence that the children should see their parents reading because the parents are then modeling the importance of reading. The court has no doubt that he loves his children dearly. The court concurs with the guardian ad litem's conclusion that "in his heart he wants what is best for the children." But the many times that he has blamed the mother in front of the children show that his instincts regarding the children are not always good ones.
Moreover, Mr. La Fontaine's long history of verbal and emotional abuse and its demoralizing effect on Ms. La Fontaine cast serious doubt on whether the two recent incidents cited by the GAL accurately presage successful cooperation in the future. The court finds credible the plaintiff's testimony that her husband has difficulty restraining his temper and was controlling and manipulative toward her and that many efforts at communication would degenerate into yelling and screaming. Joint legal custody requires the parties to communicate effectively and work together cooperatively. It is hard to cooperate with someone who, like Mr. La Fontaine, is authoritarian, dictatorial, and impulsive, unless that cooperation consists of acquiescing to his demands. Joint custody, on the other hand, requires mutual communication and cooperation — the willingness and ability on the part of each parent to voice its concerns and opinions, rationally consider and fairly weigh the views of the other parent, and, if the parties still cannot agree after such a dialogue, engage in a reasoned and mutually cooperative decision-making process. The evidence shows the parties have not met this standard in the past. Thus the question of whether to award joint legal custody when requested by the GAL but not by either party is an academic one here, rendered moot by the facts of this case.
Despite the gravity of Mr. La Fontaine's claims about his wife, and although the evidence raises serious questions in the court's mind about whether she has some sort of physical or mental disorder that causes her to become fatigued and fall asleep, the court finds that at the present time it is in the best interest of the minor children for their mother to have sole legal custody and primary physical custody. She has successfully cared for these children all their lives. She has shown the ability to make good decisions about their well-being, the capacity to guide and care for them, and the judgment and discretion to nurture their psychological and emotional growth. The father's inability to control his anger or to refrain from castigating his wife makes him an inappropriate legal custodian for the children. Children need more than someone able to meet their daily physical needs for shelter, food, and other basic necessities. They also need someone who will nurture their emotional and psychological well-being. A parent who places blame for every mishap in life on the other parent and who constantly criticizes the other parent in front of the children is not one likely to nurture the children's psychological and emotional health. But to ensure that the children have the benefit of their father's input and advice on important matters, the court's orders direct Ms. La Fontaine to consult with him before making major decisions.
The court is aware that Jenna would prefer to reside with her father but concurs with the guardian ad litem that she is not yet of "sufficient age" and maturity that she is "capable of forming an intelligent preference." See General Statutes § 46b-56(b)(1).
The mother, the family relations counselor, and the guardian ad litem all recommend that Mr. La Fontaine have extensive parenting time with the children. Although Ms. La Fontaine's proposed orders suggest a rather typical parenting schedule for the father — every other weekend and Tuesday from four to 7:00 p.m. and Friday from four to 9:00 p.m. in the week thereafter, at trial she testified that she and Mr. La Fontaine should equally split the parenting time. The family relations counselor recommended continuing the present nesting schedule under which he spends three days of each week with the children. The GAL proposed alternating weekends from Thursday after school through Monday morning, every Tuesday from after school until 7:00 p.m., and every Thursday from after school to return to school on Friday. These recommendations reflect the deep connection between Mr. La Fontaine and his children, his intense devotion to them, his ability to meet their everyday needs, and the need of these children for their father to be an active part of their lives.
After considering all the evidence and information presented, the court finds that the parenting schedule recommended by the GAL is, in most respects, in the children's best interest. But the court is very concerned about whether Mr. La Fontaine will continue to blame Ms. La Fontaine for every misfortune of life and, if so, the effect of that conduct on the children. The court here did not hear any expert psychological evidence on the causes of Jenna's conflict with Ms. La Fontaine. But the fact that Jenna accepted her father's statement that the rabbit had been dead for three days, although Jenna saw the rabbit alive the day before, shows his strong influence over her. The court is concerned that the father will continue to engage in blaming conduct and that such conduct will undermine the relationship of the children with their mother. The court finds that it is in Jenna's best interest for her and the plaintiff to participate in therapy to identify and address the issues causing the conflict between them and that it is in the best interest of all the children for Mr. La Fontaine to have a psychiatric evaluation and enter into therapy with the goals of identifying why he so often castigates his wife and ending that behavior.
III. FINANCIAL ISSUES
The principal financial issues in dispute are assignment of the occupancy interest in the marital home, an apartment rented from the husband's parents, and the wife's requests for alimony, that the husband pay her counsel fees, and that he also pay her $5,000 "from funds [that she claims he] received over the years in joint income tax returns." (Pl.'s Proposed Orders, p. 3.) The court will address the various financial issues in turn.
A. Child Support
Although Mr. La Fontaine requested an order that Ms. La Fontaine pay him child support, in view of the court's award of primary physical custody to her, the child support order is that, in accordance with the child support guidelines (and as shown on the attached worksheet), he shall pay her the presumptive support amount of $220 per week, plus 42% of unreimbursed medical expenses exceeding one hundred dollars per year per child and the same percentage of qualifying child care expenses.
B. Alimony and Property Distribution
In determining "whether alimony shall be awarded, and the duration and amount of the award," the legislature has specified in Section § 46b-51(a) of the General Statutes that a court shall consider
the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment.
The reference in the alimony statute to § 46b-81, which is the statute governing distribution of marital property, makes clear that a court's alimony decision may take into consideration the court's equitable distribution of property. The statutory criteria for property distributions in § 46b-81 are similar to those for alimony, except that for property distributions the law omits "the desirability of . . . securing employment" as a factor and adds "the opportunity of each for future acquisition of capital assets and income" and "the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates." Whereas alimony "is based primarily upon a continuing duty to support," Blake v. Blake, 211 Conn. 485, 498, 560 A.2d 396 (1989); "the purpose of property division is to unscramble the ownership of property, giving each spouse what is equitably his." Beede v. Beede, 186 Conn. 191, 195, 440 A.2d 283 (1982).
All items of property listed on each party's financial affidavit are property subject to distribution under § 46b-81, as is the husband's pension from Home Depot worth $3,082.09. The husband's IRA is worth $13,500 and has a loan on it of $3,500. The court finds that the other items on the financial affidavits have the values stated thereon. In addition, the parties have a right of tenancy in the marital unit that has no present fair market value. Since the children have lived there for a long time and it is in their best interest to continue residing there, the court awards the parties' right of possession and tenancy in the marital unit to Ms. La Fontaine.
The parties' proposed orders agree to divide equally the husband's deferred compensation, the IRA and the Home Depot pension.
Ms. La Fontaine is 42 years old, has a high school diploma and received a certificate from the Stone School of Business. When the parties married ten years ago, she had held steady employment for more than ten years as a type setter in a foundry, where she earned more than $13 per hour, but the shop where she used to work is now closed. There was no evidence that in this era of computers, page composition software, and myriads of printer fonts there is still work available for someone with that skill. During the marriage she was responsible for rearing the children but she also held numerous part-time jobs as a home health aide, at a supermarket and department store, and for a typing service. She returned to full-time work during trial, when she became employed as a medical assistant working 37 1/2 hours per week and earning $11 per hour. She has a reasonable expectation that her salary will increase to $12 per hour when her training period ends. Her current weekly income is $407 gross and $381 net. In view of her medical and psychiatric history, she needs health insurance. Because of Ms. La Fontaine's medical and psychiatric history, it is impossible to ascertain today whether she will remain healthy enough to support herself and the children in the future.
Mr. La Fontaine is 39 years old, a high school graduate and in good health. For the last 16 years he has worked at F.J. Dahill Company, where he is a foreman supervising roofing, painting, masonry and other restoration work. He is paid on an hourly basis, and earns $18-$21 per hour, depending on whether he is supervising others on a particular job. He also gets some overtime. He earned $41,177 in 2002 and $38,667 in 2003. He currently earns $789.39 gross and $584 net per week. After becoming eligible to claim the two dependency exemptions awarded by the court, his net income will be $647 per week. His employer also contributes two per cent of salary each year to his 401K account. Thus, he not only earns more than Ms. La Fontaine, but he has specific job skills and work experience that afford him better income and employment prospects for the future than she has.
After considering all of the evidence and information presented and the statutory factors for awards of alimony, distribution of property and allocation of debt, the court finds it fair and equitable to award the wife alimony of $100 per week, terminable upon death of either party or remarriage or cohabitation of the wife. As additional alimony, Mr. La Fontaine shall be responsible for paying for her medical coverage. The Dodge Van is awarded to her and the Nissan King Cab to him. Each party may keep the bank accounts listed on their financial affidavits. The personal injury claim of the plaintiff is awarded to her. Other property orders are stated below.
C. Counsel and GAL fees
Ms. La Fontaine wife has also requested contribution toward her counsel fees. In support of her claim lies the fact that the husband spent portions of joint tax refunds for his own counsel fees. The fact that Ms. La Fontaine changed counsel several times undoubtedly increased the amount of time that counsel for Ms. La Fontaine needed to spend on the case. As of January 19, 2005, midway through trial, the plaintiff owed her attorney $20,520 in legal fees for representation in this matter. As no affidavit of fees was submitted to the court, the court is unable to determine the reasonableness of the fee charged to her or of the services billed to her. Nonetheless, in its decision, the court has taken into consideration the fact that counsel for the plaintiff appeared before the court on ten days of trial and submitted a post-trial brief.
The court finds that the guardian ad litem, who submitted a financial affidavit detailing her expenses to which neither party objected, reasonably expended 82.98 hours of her time on this case through March 18, 2005, and that her billing rate of $200 per hour and fee of $16,597 for services rendered through that date are reasonable. The guardian is ordered to submit an additional affidavit as to time that she has expended on this case since then.
Under General Statutes § 46b-62, the court may order payment of counsel fees and for the fee of the guardian ad litem after considering the parties' respective financial abilities and the criteria set forth in General Statutes § 46b-82, so long as the court takes care that its determination of this question does not substantially undermine its other financial orders. As the court held in Miller v. Miller, 16 Conn.App. 412, 418, 547 A.2d 922 (1988),
In determining whether to award counsel fees the trial court must consider the total financial resources of the parties in light of the statutory criteria. The statutory criteria are to be applied in light of the following three broad principles: First, such awards should not be made merely because the obligor has demonstrated an ability to pay. Second, where both parties are financially able to pay their own fees and expenses, they should be permitted to do so. Third where, because of other orders, the potential obligee has ample liquid funds, an allowance of counsel fees is not justified. If on the basis of the total financial resources of the parties, the trial court concludes that denying an award of counsel fees would not undermine its purpose in making its prior financial orders, the court should allow each party to pay his or her own counsel fees.
(Citations omitted; quotations omitted.)
Taking into consideration the evidence in this case and all the statutory factors mandated by § 46b-62, as elucidated by the Appellate Court in Miller v. Miller, the court orders that the 2004 tax refund shall be paid over to the guardian ad litem and that Mr. La Fontaine shall be responsible for the balance of her fee. In addition, Mr. La Fontaine shall contribute $5,000 toward his wife's counsel fees. The court-ordered alimony and child support, along with Ms. La Fontaine's own income, will barely give her sufficient funds to meet her needs and those of the children. She is not able to pay these fees. Ordering the defendant to pay these fees will not undermine the court's other orders.
IV. ORDERS
After considering all the statutory and regulatory criteria for dissolving a marriage and entering orders regarding custody, visitation, equitable distribution of property and division of debt, alimony, child support, and the award of counsel fees, together with applicable case law and all the evidence and information presented by the parties presented here, the court hereby enters the following orders:
A. Dissolution of Marriage
The marriage of the parties, having broken down irretrievably, is hereby dissolved.
B. Parenting Orders
a. It is the purpose of the parenting orders to provide the children with opportunities to maintain strong and healthy relationships with both parents, to keep both parents actively involved in the lives of their children, and to provide both parents with current and continuing information about the lives, activities, interests, and well-being of the minor children.
b. Ms. La Fontaine shall have sole legal custody and primary physical custody of the minor children. Where practicable, before she makes any major decision about the children, she shall consult with Mr. La Fontaine. Major decisions shall mean issues affecting the children's welfare, religion and spiritual matters, medical care, therapy, ongoing activities, education, development, and, as they get older, matters regarding automobiles, driving, and employment. She shall notify him of upcoming major decisions in a timely manner, inform him when she, in her sole discretion, believes the decision needs to be made, and shall seek his input on that decision. If the parties cannot agree on a decision by the time that Ms. La Fontaine stated the decision needed to be made, then Ms. La Fontaine may make the decision herself. Routine decisions, including but not limited to homework and day-to-day activities customary for youth of their age and maturity shall be made by whichever party is exercising parenting time, and that parent will also have authority to make decisions as to emergency medical, dental, or safety matters but must immediately notify the other, orally if practicable.
c. Mr. La Fontaine will have parenting time on alternating weekends from after school on Thursday until return to school on Monday morning, every Tuesday from after school until 7:00 p.m., and, on those Thursdays that do not immediately precede a weekend where he will have parenting time, from after school until return to school the next day. Ms. La Fontaine shall have parenting time at all other times, except those specified below.
d. The parties shall alternate holidays, including without limitation, all school holidays, Martin Luther King Day, President's Day, Easter Sunday, Memorial Day, Fourth of July, Labor Day, Thanksgiving, and that portion of the year-end holiday vacation not governed by the following paragraph.
e. The parties shall alternate and share Christmas with the minor children. Commencing in 2005 and every odd year thereafter, Ms. La Fontaine shall have parenting time from Christmas eve at 5:00 p.m. until Christmas day at 1:00 p.m., and Ms. La Fontaine from Christmas day at 1:00 p.m. until December 26 at noon. The schedule shall be reversed in even years.
f. The parties shall alternate Thanksgiving school vacation, with Mr. La Fontaine having the children with him for the Thanksgiving vacation in the year 2005 and each odd-numbered year thereafter, and Ms. La Fontaine having the children with her for Thanksgiving school vacation for each even-numbered year thereafter.
g. The children shall spend Mother's Day with Ms. La Fontaine and Father's Day with Mr. La Fontaine, which days shall supercede the foregoing parenting periods.
h. The parties shall agree upon the minor children's summer activities and/or camp by no later than the preceding May 1st of each year. If they have been unable to agree by then, Ms. La Fontaine may determine the children's summer activities and camp schedule herself. Each parent shall be entitled to two non-consecutive weeks vacation with the minor children.
i. The parties shall have reasonable access to the children while they are with the other party, including free access by telephone, mail and e-mail. The children shall be able to call either parent at any time. The parent who does not have the children with him or her may call the children between the hours of 7:00 p.m. and 8:30 p.m. If the caller is unable to speak with the children, the caller shall leave a message and the children shall return the call within one hour.
j. Neither party shall disparage the other party in the presence of the children. The parents shall exert every reasonable effort to promote and foster feelings of love and affection between the children and the other parent. Each parent shall exert his and her best efforts to refrain from doing anything to estrange the children from the other parent, or to disparage the opinion of the children as to their mother or father, or to act in such a way as to hamper the free and natural development of love and respect between the other parent and the children.
k. If either parent plans any trip or vacation with the children for longer than one day's duration, that party shall notify the other in writing at least 48 hours prior to their time of departure, indicating their itinerary and providing the other parent with the following information: the duration of the trip, lodging addresses and telephone number, airline flight number and travel information including means of travel, departure and arrival times and destinations.
l. Each party shall keep the other party informed of the general whereabouts of the children when they are with him or her and, if either party has any knowledge of any illness or accident or other circumstance seriously affecting the health or welfare of the children, he or she shall promptly notify the other party by any reasonable and available means intended to provide the other parent with the information as expeditiously as possible. Each party shall have reasonable access to the children in their place of confinement during any illness or circumstance affecting their health and well being.
m. Both parents shall be entitled to complete copies of all records and documents from third parties and/or institutions concerning the health, welfare, education and general well being of the children, and each party shall immediately provide the other parent upon their receipt with copies of any and all such documents and records concerning the children.
n. If either parent has knowledge of any illness or accident or other circumstance seriously affecting the health or welfare of the children, that party shall promptly notify the other. Each party shall similarly notify the other of any change in the children's medical status, including visitations to any doctor or dentist or prescription medications.
o. Each parent shall provide the children's school with his or her contact information and request that the school issue duplicate notices of any and all teacher conferences or counseling sessions or meetings involving the children so that both parents receive them and both parents shall have the right to attend such meetings.
p. Each of the parties shall have the right to attend school, extracurricular and public events in which the children shall participate or which are related to the children, including but not limited to games, practices, athletic events, school programs, parent/teacher conferences, church events and recitals. Each parent shall inform the other of any such events as soon as they are scheduled. When such events occur, the parent with parenting responsibility for the children involved at that time must arrange for transportation to and from the event even if that parent does not intend to be present for such activity. The children shall be free to interact with both parties at any such events.
q. In the event that either party intends to relocate his or her residence more than 25 miles from East Haven, Connecticut, he or she shall give advance written notice by certified mail, to the other party, at least ninety (90) days prior to the date of relocation, indicating the place of relocation and the reasons therefore. Nothing contained herein shall prevent either party from seeking a judicial determination that the children shall stay within the 25-mile radius of East Haven, Connecticut, until the issue of relocation is resolved, or a change in custody or principal residence by reason of the relocating party's move.
r. For the purposes of this agreement, "notification" as described herein shall be made by the two of the following: telephone, fax or e-mail with best efforts made to contact the other party directly where possible in each case.
C. Financial Orders
1. Child Support
a. Mr. La Fontaine shall pay Ms. La Fontaine child support of $220 per week, plus 42% of unreimbursed medical expenses exceeding one hundred dollars per year per child and the same percentage of qualifying child care expenses.
b. Mr. La Fontaine shall continue to provide health insurance for the minor children so long as available to him at a reasonable cost through his employer. If comparable medical insurance is available for the minor children to the mother through her employer at a lesser cost, she shall provide it. If health insurance is not available to either parent at a reasonable cost through employment, they shall apply for any publicly-funded health insurance for which the children may be eligible and split the cost of such insurance.
2. Alimony
a. Mr. La Fontaine shall pay Ms. La Fontaine periodic alimony of $100 per week.
b. As additional alimony, Mr. La Fontaine shall contribute toward the cost of health insurance for Ms. La Fontaine in an amount equal to what his employer charges under COBRA for a single person for the insurance covering Ms. La Fontaine at the time of dissolution. He shall also cooperate with her in obtaining COBRA coverage through his employer.
c. Alimony shall terminate upon death of either party or remarriage or cohabitation, as defined in the General Statutes and case law thereunder, of the wife.
3. Property Distribution
a. Ms. La Fontaine is awarded the exclusive right of occupancy and tenancy to the marital premises. Mr. La Fontaine shall vacate the same within thirty days of this judgment. Until he vacates the premises, the pendente lite nesting arrangement shall continue.
b. With the exceptions stated below, the property listed on each party's financial affidavit is awarded to that person.
c. The husband's IRA and Home Depot pension shall be split equally based on their values on the day of judgment. The loan of $3,500 on the IRA shall come out of the husband's portion of the IRA. The court will retain jurisdiction over approval of any qualified domestic relations orders necessary to effectuate this order. The cost of preparing any qualified domestic relations orders shall be divided equally between the parties.
d. The Dodge Van is awarded to the plaintiff and the Nissan King Cab to the defendant, each party shall sign any documents necessary to transfer title of these vehicles.
e. Each party is awarded the bank accounts listed on its financial affidavit. The personal injury claim of the plaintiff is awarded to her.
f. Property in the marital home shall be divided equally by the parties, except that each party is awarded its own clothing and jewelry and the following items are awarded specifically to the plaintiff: the curio cabinet given to her by the parental grandfather, the curtains and window treatments in the marital home, the television set given to her by her sister, the washer and dryer, and the children's bedroom furniture. If the parties cannot agree on the division of the other personal property, they shall seek the mediation services of family relations. If they still cannot agree, each shall submit a list to the court of the items of personal property that each party wants and a brief summary of why the party believes it should be awarded that article of property. The court retains jurisdiction over distribution of personal property.
g. Plaintiff's engagement ring is awarded to her and shall be returned to her.
h. Each party will be responsible for the debts listed on its own financial affidavit except for that portion of counsel and GAL fees assigned below.
D. Counseling and Therapy
a. Mr. La Fontaine will enter into therapy with the goals of identifying why he so often castigates his wife and ending that behavior and stay in such therapy until further order of the court.
b. Ms. La Fontaine shall place herself and Jenna into therapy for the purpose of addressing the conflict between them.
E. Counsel and GAL Fees
The parties' 2004 tax refunds, if any, shall be paid directly to the guardian ad litem in partial payment of her fee. Mr. La Fontaine shall be responsible for the balance of her unpaid fee. He shall also pay $5,000 toward the plaintiff's counsel fees.
F. Dependency Exemptions
As long as all three minor children are eligible to be claimed as dependents on state and federal income tax returns, the defendant may claim two dependency exemptions on his federal and state income tax returns. When only two children are eligible to be claimed as dependents, each party may claim one. When only one child is eligible, the defendant may claim that exemption.
G. Retention of Jurisdiction over Post-Secondary Educational Expenses
The court retains jurisdiction to enter orders pertaining to post-secondary educational expenses upon future motion or petition of either party.
BY THE COURT
STEPHEN F. FRAZZINI JUDGE OF THE SUPERIOR COURT