Opinion
FSTFA156024538S
08-23-2016
Erin Gavlick v. Scott Gavlick
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Barry C. Pinkus, J.
The plaintiff, Erin Gavlick and the defendant, Scott Gavlick, were married in Las Vegas, Nevada on February 9, 2002. There are two children issue of the marriage: Grant Blue Gavlick, born September 29, 2009 and Cameron Michele Gavlick born September 29, 2009. The jurisdictional requirements are satisfied. The trial was conducted by the court on August 8, 9 and 10, 2016. The parties were unable to reach an agreement on the financial issues or custodial arrangements for their children prior to trial. The court listened to and observed the witnesses, and reviewed the exhibits entered at the trial. The witnesses included the parties, the family relations counselor and a real estate appraiser. Finally, the guardian ad litem testified.
The parties met in California in November 2001. They were married three months later in Las Vegas, Nevada. They are both college educated. The parties moved to North Carolina so that the defendant could earn an MBA degree from Duke University. (He previously passed the CPA exam in California.) During this time the plaintiff continued to work remotely for her California employer. The parties lived on the plaintiff's income, joint savings and the defendant's summer employment income. Upon the defendant earning his graduate degree, the parties moved to Connecticut so the defendant could pursue employment here. While employed in Connecticut, the defendant earned the CFA designation. They bought the current marital residence using proceeds from the sale of the North Carolina residence and bank financing. The plaintiff continued to work remotely for her California employer. The defendant's career in Connecticut advanced after he left his first job with Thompson, Inc. and moved to FactSet Inc., where he is currently employed. The plaintiff stopped working in 2015, claiming that her California employer no longer allowed her to work remotely.
Both parties testified that their relationship was not good for many years. Despite this they decided to have children, hoping this would bring them happiness. Medical intervention was required for the plaintiff to get pregnant. The twins were born in 2009. The party's relationship continued to deteriorate. The court cannot find that either party was more responsible than the other for the breakdown of the marriage.
The plaintiff testified that she wants to move to California with the children and that it was always the parties' plan to return " home" to California. She stated that if she were allowed to return to California she could probably regain her prior employment and that her mother would be able to help take care of the children. The defendant opposes the children moving to California and he testified that the parties would occasionally discuss a return to California but that no concrete plans were ever made. The defendant testified that he would not be able to obtain equivalent employment in California and that if the children were in California his relationship with them would be detrimentally affected.
The plaintiff was earning approximately $52,000 a year at the time her employment ended. The plaintiff has not made any significant efforts to regain employment. The defendant currently earns a base salary of $156,000 a year and is eligible for a bonus of $48,000 per year. The bonus is not guaranteed. The defendant's employer provides subsidized family health insurance, a 401k plan and access to an Employee Stock Ownership Program. The marital residence is appraised at $425,000 and is encumbered by a mortgage and equity credit line totaling approximately $440,000. The other assets are FactSet stock owned by the defendant valued at approximately $46,000 (of the 272 shares, less than 100 are restricted) and the defendant's 401k valued at approximately $150,000. Each party has an IRA and a bank account. There are substantial joint credit card debts to American Express and Bank of America. The defendant has student loan debt and each party has family loans. The defendant liquidated FactSet stock during the pendency of this case. The proceeds were used for attorney fees.
The primary dispute is whether or not the mother can move with the minor children to California. The family relations counselor recommended that the plaintiff should be permitted the authority to relocate with the minor children to California. Her analysis was based in large part upon the fact that the defendant's current access schedule, which equates to less than four days per month (less than 96 hours), would be achievable whether the children resided within or outside the state. This analysis does not take into account the fact that the defendant sees his children 12 to 14 times a month and that he is seeking additional parenting time with the children. The Guardian ad litem does not support the plaintiff's request to relocate with the children to California. The Guardian ad litem believes that such a move would have a detrimental effect on the " bonded" relationship they have with their father. The court agrees with the Guardian ad litem.
The following quotation from the case of Raymond v. Raymond, 165 Conn. 735, 741, 345 A.2d 48 (1974), sets forth the rule of law upon the issue of custody: " Where custody and visitation rights have been affected, a court has the power and the duty to safeguard those rights while recognizing that such interests are subordinate to the welfare of the children. Neither parent's interests with regard to his or her children are a property right nor are they rights which cannot be terminated without his or her consent . . . A contest relative to custody, such as visitation rights, is not one primarily to determine the rights of the respective parties but rather a determination of the best interests of the child or children." (Citations omitted.)
In devising its orders, the court must look to the criteria of the various statutes dealing with custody of minor children. General Statutes § 46b-56(b) directs the court to enter custody orders " that serve the best interests of the child and provide the child with active and consistent involvement of both parents commensurate with their abilities and interests." (Emphasis added.) That statute goes on to enumerate sixteen separate factors for the court to consider in devising such orders.
The " best interest of the child" standard is the ultimate basis of a court's custody decision. Knock v. Knock, 224 Conn. 776, 789, 621 A.2d 267 (1993). The gender of the parents is not considered by the court and there is no automatic presumption favoring the mother as custodial parent. Presutti v. Presutti, 181 Conn. 622, 627-28, 436 A.2d 299 (1980); Hurtado v. Hurtado, 14 Conn.App. 296, 301-02, 541 A.2d 873 (1988). Either parent can be awarded custody and the issue " is not which parent was the better custodian in the past but which is the better custodian now." Yontef v. Yontef, 185 Conn. 275, 283, 440 A.2d 899 (1981).
The court has also considered all of the statutory factors enumerated in Connecticut General Statutes § § 46b-81 and 46b-82 in making the order set forth below. " A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria." (Internal quotation marks omitted.) Keenan v. Casillo, 149 Conn.App. 642, 663, 89 A.3d 912, cert. denied, 312 Conn. 910, 93 A.3d 594 (2014). " The distribution of assets in a dissolution action is governed by . . . § 46b-81, which provides in pertinent part that a trial court may assign to either the husband or the wife all or any part of the estate of the other . . . In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income." (Internal quotation marks omitted.) Natarajan v. Natarajan, 107 Conn.App. 381, 392-93, 945 A.2d 540, cert. denied, 287 Conn. 924, 951 A.2d 572 (2008).
Accordingly the court makes the following:
Orders
1. The marriage of the parties is dissolved on the grounds of irretrievable breakdown.
2. The parties shall have joint legal custody of the minor children. The primary residence of the minor children shall be with the plaintiff.
3. The plaintiff shall not be permitted to relocate to California with the children.
4. The defendant shall have parenting time on a two-week rotating schedule as follows:
a. Week one: On Tuesday evening from 5 p.m. until 8 p.m. and Friday from after school (or 9 a.m. if no school) until Sunday at 7 p.m. (or 6 p.m. Monday if it is a Monday holiday)
b. Week two: Tuesday from 5 p.m. until Wednesday drop off at school (or 9 a.m. if no school) and Thursday from 5 p.m. until 8 p.m.
c. Holiday and Vacation time:
i. The defendant shall have Easter in even-numbered years and the plaintiff shall have Easter in odd-numbered years,
ii. The defendant shall have Thanksgiving in odd-numbered years and the plaintiff shall have Thanksgiving in even-numbered years.
iii. In even-numbered years, the defendant shall have parenting time during Christmas vacation from after school on the last day of school before the holiday through noon on the midpoint of the Christmas vacation and the plaintiff shall have this parenting time in odd-numbered years. In odd-numbered years, the defendant shall have parenting time with the children from noon on the midpoint of the Christmas vacation through the return of school after Christmas vacation and the plaintiff shall have this parenting time in even-numbered years.
iv. In the event there is a February school vacation it shall be alternated so that the plaintiff has this time during odd-numbered years and the defendant in even-numbered years.
v. The defendant shall have April school vacation in odd-numbered years and the defendant shall have April school vacation in even-numbered years.
vi. Each party shall have two consecutive or nonconsecutive weeks of summer vacation. The vacation shall commence on Friday at 5 p.m. and extend for an entire week until Sunday at 7 p.m. The plaintiff shall have first selection of summer vacation by May 1st of odd-numbered years and the defendant shall have first selection of summer vacation by May 1st in even-numbered years.
vii. The children shall be with the plaintiff on Mother's Day from 9 a.m. until 8 p.m. and with the defendant on Father's Day from 9 a.m. until 8 p.m.
5. Routine " day-to-day" decisions shall be made by each parent during the times that the children are with him or her. Such custody designation confers upon both parents the obligation to consult and discuss with each other regarding major decisions affecting the minor children's best interest, including, but not limited to matters of academic education, religious training, health and general welfare of the children. Neither parent will unreasonably withhold consent to matters affecting the children but shall endeavor to make decisions in such a way as the children's needs are timely and appropriately met, despite a parent's particular personal preference in relation to the other parent, and both the parents shall place the children's needs and interest above such individual and personal preferences. In addition:
a. The parties shall be respectful to one another when communicating about issues relating to the children in a positive, prompt and nonconfrontational manner. The parties will communicate with one another on a regular basis and attempt, in good faith, to have fairly consistent rules and practices in both households. Neither party should do anything which may estrange their children from the other party nor injure the opinion of the children as to their mother or father nor act in such a way as to hamper the free and natural development of the children's love and respect for the other party. Neither party shall disparage the other parent or any significant other to the minor children, nor shall either party permit the children to be in the presence of or hearing of a third party that is disparaging the other parent.
b. The parties shall not discuss the court proceedings with the minor children. The parties will not disclose any pleadings, documents or court orders in this action, to either of the children. Each will make reasonable precautions to make sure the children do not have access to such documents.
c. Neither party shall tell the children that they have the right to make decisions regarding parenting time. Neither party shall tell the children that their decisions are more important than the decisions of the other parent. The children shall be encouraged to discuss directly with a parent any scheduling issues which they may have during that parent's time. The children shall be further advised that all decisions will be made as a result of the discussion between the parents. If the parents disagree after a meaningful discussion between the parties, the parent whose parenting time is being impinged upon shall retain the final authority regarding any changes to their scheduled parenting time.
d. If either party has knowledge of any illness or accident or other circumstances seriously affecting the health or welfare of the children, that party will promptly notify the other. Each party will, similarly, notify the other of any change in the children's medical status, including visits to any doctor or dentist or prescription medications.
6. The children shall commence therapy with Dr. Steven Sichel the week of August 22, 2016, pursuant to the stipulation, pendente lite, dated July 5, 2016. Therapy shall occur at least once per week for each child for a period of no less than four months. Thereafter, therapy shall continue at a frequency recommended by the therapist unless the parties mutually agree otherwise.
7. The children shall be enrolled in at least one extracurricular activity per season. In the event of a disagreement over same, the father shall have final decision-making authority.
8. The parties shall attend co-parenting counseling, at a frequency recommended by the counselor for a period of no less than six months. Thereafter, the parties shall attend counseling quarterly or more frequently should issues rise and either party request a session. The cost of the co-parenting counseling shall be shared equally by the parties.
9. Neither party shall relocate with the minor children outside of Connecticut or further than a 15-mile radius of Stamford, Connecticut, unless both parties agree or by court order.
10. Commencing upon the sale and closing of title of the marital residence as set forth in Paragraph 15 the defendant shall pay to the plaintiff $600 per week as periodic alimony for a period not to exceed seven years from the date of judgment. In addition the defendant shall pay to the plaintiff 33.33% of his gross bonus as additional alimony for a period not to exceed seven years from the date of judgment. Said additional alimony payment shall be made within seven days from receipt by the defendant. Said alimony shall be deductible by the defendant and taxable to the plaintiff. The defendant shall be precluded from requesting to receive his bonus as stock shares instead of cash. The alimony shall terminate upon the death of either party, the plaintiff's remarriage and is subject to the provisions of Connecticut General Statutes § 46b-86(b).
11. The defendant shall pay to the plaintiff $594 per week as child support commencing upon the sale and closing of the marital residence as set forth in Paragraph 15. The plaintiff shall be responsible for 22% and the defendant shall be responsible for 78% of work related daycare or preschool, agreed upon extracurricular activities (including extracurricular activities set forth in paragraph 7 above) and unreimbursed medical and dental expenses for the minor children.
12. The defendant shall continue to maintain medical and dental insurance for the benefit of the minor children for so long as it is available through his employment at reasonable cost. Each party shall be responsible for their own medical insurance.
13. The plaintiff shall be entitled to take the daughter as a dependent for state and federal tax purposes. The defendant shall be entitled to take the son as a dependent for state and federal tax purposes.
14. The court finds that as a matter of fact it is more likely than not that the parents would have provided for higher education or private occupational school if the family were intact and shall retain jurisdiction for the entry of educational support orders for the children pursuant to Connecticut General Statutes § 46b-56c.
15. The plaintiff shall be entitled to exclusive possession of the marital premises until the sale and closing of title. The marital residence shall be listed for sale immediately with a mutually agreed-upon real estate agent at a mutually agreeable asking price. In the event the parties are unable to agree on a listing broker, the parties shall each choose a broker and the two selected brokers shall choose a third broker to list the property. In the event the parties are unable to agree on an asking price for said property, it shall be listed for sale at a price recommended by the listing broker. At closing all customary expenses shall be paid from the proceeds. Any remaining proceeds or deficiency shall be shared equally by the parties. Until the closing of title the defendant shall be responsible for the payment of the mortgage, property taxes and assessments, home equity line of credit as well as plaintiff's automobile loan and automobile insurance. The court shall retain jurisdiction regarding any issues concerning the sale of the marital property.
16. Each party shall retain their own bank accounts without any claim by the other.
17. The defendant shall transfer to the wife his unrestricted shares of FactSet stock (approximately 200 shares). The defendant shall retain the restricted shares of FactSet stock. The defendant shall retain the Fidelity brokerage account.
18. The parties shall equally share the total value of the defendant's 401k account. The account shall be valued as of the date of dissolution and shall be subject to market gains and losses from the date of dissolution to the date of distribution. The parties shall retain attorney Elizabeth McMahon or some other agreeable person to prepare the QDRO necessary to effectuate a transfer and shall be equally responsible for payment of attorney McMahon's fees. Each party shall retain their other retirement accounts without any claim by the other.
19. The plaintiff shall retain the 2014 Fiat automobile and shall be solely responsible for all costs and liabilities associated with said vehicle, except as set forth in Paragraph 15 above. Upon the sale of the marital home the plaintiff shall use her best efforts to have the loan transferred into her sole name. The defendant shall retain the 2008 Land Rover.
20. The defendant shall maintain life insurance in the amount of $500,000 naming the defendant as a revocable beneficiary for so long as he has any financial obligation pursuant to the terms of this judgment
21. The parties shall be equally responsible for payment of the joint credit card debt with the Bank of America card *2315 and the American Express card *4004. Each party shall be responsible for their other sole obligations including taxes.
22. The parties shall attempt to mutually divide their personal property. The court shall retain jurisdiction over any issues concerning the division of the property.
23. Each party shall be responsible for their own attorneys fees
24. The defendant shall be responsible to pay the Guardian ad litem fees incurred to the time of judgment. The Guardian ad litem shall remain the Guardian for a period of six months post-dissolution. During such time, absent an emergency, the parties shall address any parenting related disputes with the Guardian prior to filing a motion with the court. The parties shall equally share in the Guardian's fees incurred post-dissolution.
25. The plaintiff's motion for contempt is denied.