Opinion
LLIFA124012334
05-17-2017
Fernando Vega v. Courtney Vega
UNPUBLISHED OPINION
Filed May 18, 2017
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO MODIFY (#131)
Kari A. Dooley, Judge.
Preliminary Statement
The parties were divorced on April 22, 2013. The terms of their separation agreement were incorporated into the judgment of the court. They share joint legal custody of two minor children, Aleyna, age 10 and Xavier, age 8. The plaintiff (hereinafter father) has primary physical custody. The defendant (hereinafter mother) has parenting time pursuant to an agreed-upon and court-ordered parenting plan. Since the time of the dissolution, the parenting plan has undergone several modifications. The most recent custody order of the court was entered on June 16, 2015. On March 11, 2016, mother filed the instant motion to modify. The matter was referred to the Family Relations Office for an update to the comprehensive evaluation previously conducted. Additionally, the children's Guardian Ad Litem was re-engaged to review the parties' current situation and to assess the best interests of the minor children. A hearing was held over the course of three days--December 1, 2016, December 14, 2016 and April 19, 2017. Having considered all of the testimony and evidence adduced at the hearing, the arguments of counsel, the statutory and appellate authority governing the issues to be decided, and the parties' proposed orders, for the reasons set forth below, the defendant's motion to modify is granted, in part.
Standard of Review
" The court has continuing jurisdiction over a custody decree . . . and the noncustodial parent retains the option to move to modify custody based on a substantial change in circumstances affecting the welfare of the children." Cookson v. Cookson, 201 Conn. 229, 236, 514 A.2d 323 (1986). However, the parties and the minor children have an interest in the finality of judgments which arises upon the entry of a custody order incident to a final dissolution decree. Hall v. Hall, 186 Conn. 118, 122-23, 439 A.2d 447 (1982). Therefore, " '[f]irst, modification of a custody award [must] 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.' . . . Second, 'the court shall consider the best interests of the child, and in doing so may consider' several factors. General Statutes § 46b-56(c)." (Internal citations omitted.) Harris v. Hamilton, 141 Conn.App. 208, 219, 61 A.3d 542 (2013). A finding of a material change in circumstances must be based on circumstances that have arisen since the previous order of custody. Simons v. Simons, 172 Conn. 341, 342-43, 374 A.2d 1040 (1977). Finally, our appellate courts have made it clear that when determining the custody of minor children the ultimate test the court must apply is the best interests of the child. See e.g., Cookson v. Cookson, 201 Conn. 229, 241, 514 A.2d 323 (1986). In determining the best interests of the children, the court is guided by the factors set forth in Conn. Gen. Stat. § 46b-56(c).
In her motion, mother does not contend that the June 2015 order was not in the best interests of the minor children.
Factual Findings and Procedural History
As indicated, the parties were divorced on April 22, 2013. They share joint legal custody of their two minor children although father has always had primary physical custody. Mother has parenting time pursuant to an agreed-upon and court-ordered parenting plan.
Father is re-married to Shari Vega. Mother is remarried to Jacob Mendez, an individual with whom she has been involved since approximately 2011. Mother and Mr. Mendez have a child together, a half-brother to the parties' minor children.
When Mr. Mendez was 16 years old, he was charged as an adult with sexual assault of his step sister. He was incarcerated while the case was pending. After a jury trial, he was acquitted. However, he was placed on the sex abuse registry maintained by the Massachusetts Department of Children and Families. He remains on the registry to this day. Mr. Mendez is now 25 years old.
When father learned of Mr. Mendez' history and the fact that he was on the Massachusetts abuse registry, he took action during the divorce proceedings to limit the minor children's exposure to Mr. Mendez. In August 2012, the court issued an order that the minor children were never to be alone with Mr. Mendez. In April 2013, the dissolution judgment was entered, incorporating the parties' separation agreement. The judgment provides that the minor children are never to be alone with Mr. Mendez, who, at the time, was mother's boyfriend.
Notwithstanding this restriction, in June 2013, mother took the minor children to Ohio to visit Mr. Mendez and during the course of that visit the children were alone with Mr. Mendez. In addition, unbeknownst to father or the children, mother married Mr. Mendez in November 2013. In early 2014, Mr. Mendez moved to Connecticut and moved in with mother. The trip to Ohio and Mr. Mendez's access to and involvement with the children occasioned additional court involvement. In February 2014, father filed a motion to modify as well as an Emergency Ex Parte Request for Sole Physical Custody. Ex Parte relief was granted. As an interim arrangement, by agreement dated March 10, 2014, the parties retained joint legal custody and father was given primary physical custody. Mother's parenting time on weekends was required to occur at the children's maternal grandmother's home in Torrington. The children were to have no contact with Mr. Mendez. The matter was also referred to Family Relations for a comprehensive evaluation. While the February motions were still pending, on October 23, 2014, the parties agreed to expand the parenting plan. Mother's weekend parenting time at the maternal grandmother's home continued. However, Mr. Mendez was permitted to be present for one meal for a period not to exceed 1.5 hours per day, with a step up to 3 hours beginning in November. Maternal grandmother was required to be present if Mr. Mendez was present. This agreement arose, in part, as a result of the GAL recommendations. It further provided: " Parties acknowledge that it is GAL's recommendation that Jacob Mendez be removed from the Massachusetts Registry and that Jacob engage with Family Strides. Successful completion of these recommendations is a factor for future GAL recommendations."
Father also filed a motion for contempt in connection with these events.
On May 26, 2015, again by way of interim orders, the parties agreed and the court ordered that Mr. Mendez was not to be present during mother's parenting time. In June 2015, following the completion of the comprehensive evaluation, the resolution of a number of tangential issues which had cropped up along the way, and with the recommendations of the GAL, the February 2014 motion to modify was resolved by an agreement, which was made an order of the court. In that order, Mr. Mendez was not permitted to be present during mother's parenting time. In addition, Mother agreed that she would do nothing to foster a relationship between Mr. Mendez and the children. Mr. Mendez was permitted to have only " incidental" contact as might be occasioned during transition times. Mother's parenting time was to occur at maternal grandmother's home.
On May 14, 2015 Mr. Mendez was arrested and charged with Threatening in the Second Degree and Breach of Peace, in connection with a domestic violence incident with the mother. Mother was granted a protective order and she and Mr. Mendez separated for a period of time. They have since reconciled.
With the exception of the October 2014 order, each successive agreement and order of the court increased the restrictions on Mr. Mendez' access to or involvement with the minor children. With each successive agreement and order of the court, the parties confirmed and the court found that these restrictions with respect to Mr. Mendez were in the minor children's best interests.
The mother filed this motion to modify nine months after the June 2015 order. She seeks a modification which removes any restrictions on where or with whom she spends her parenting time. A motion to modify must state " the specific factual and legal basis for the claimed modification." Practice Book § 25-26(e). Here, mother alleges a substantial change in circumstances as follows:
A. Regarding the no contact order with the husband, Jacob Mendez, the husband is actually innocent of the crime he was accused of, and new evidence has developed in that regard.
B. The emotional health of the children is being negatively affected by the imposed separation of children from their step-father and half-sibling.
C. The need for mother to leave her husband and her home each weekend has become burdensome and is taking a negative toll on the mother and her youngest child.
D. The maternal grandmother's home is no longer a suitable location for parenting time.
E. The overall custody arrangement is no longer in the best interests of the children.
As to the first allegation, the mother did not offer any new evidence on the issue of Mr. Mendez's actual innocence. The court did hear evidence as to the remaining allegations regarding a substantial change in circumstances. Factual findings as to those allegations are made infra .
At the conclusion of the defendant's case, the plaintiff sought dismissal pursuant to Practice Book Section 15-8. Had the motion been premised entirely on this alleged change of circumstance, the motion would be granted and a dismissal of the motion entered. Walshon v. Walshon, 42 Conn.App. 651, 681 A.2d 376 (1996) (dismissal was the proper result where movant failed to advance prima facie evidence of a material change in circumstances). However, the motion advances alternative bases upon which a substantial change in circumstances is urged, to wit, the burden to the maternal grandmother, on which the court heard adequate evidence to establish a prima facie case.
The court first observes that mother's presentation of evidence was clearly designed to revisit the previously agreed-upon restrictions on Mr. Mendez's presence during the mother's parenting time. She seeks to turn back the clock so she can now litigate that which she chose not to litigate over the course of the three years between 2012 and 2015. Her testimony that her prior agreements were the result of coercion and duress and that she had " no choice" if she wanted to see her children is rejected as unfounded and untrue. The record is clear that on multiple occasions, over the course of several years, through the negotiation process, mother agreed that Mr. Mendez's involvement with the children would be and should be limited.
Indeed, she testified that she was contemplating this very motion to modify at the time the June 2015 orders were entered.
In addition, the motion to modify does not raise even the specter of duress or coercion in connection with the prior orders.
The situation in which mother finds herself is difficult, no doubt. She wants her new blended family to be able to spend time together as a family unit. However, her situation is the result of a series of decisions she made over the course of the last five years. She chose to secretly marry Mr. Mendez knowing that the then current court order precluded him from being alone with her children. She chose to enter into agreements which increasingly restricted Mr. Mendez's access to, or involvement with, her children. She chose to have a child with Mr. Mendez, creating a half-sibling relationship that would necessarily be interrupted in light of the orders of the court. Perhaps most important, she chose not to litigate these issues during the dissolution proceedings or during any of the postjudgment proceedings. She agreed and the court found in June 2015 that it was in the best interests of the minor children that they have only incidental contact with Mr. Mendez. She affirmatively agreed to make no effort to foster a relationship between the children and Mr. Mendez. She now seeks to undo the ramifications and consequences of these decisions.
A change of circumstances is a " condition precedent" to a custody modification. Malave v. Ortiz, 114 Conn.App. 414, 424, 970 A.2d 743 (2009). The trial court has the power to modify an existing custody order but does not have the power " to retry issues already decided or to allow the parties to use a motion to modify as an appeal." (Internal quotation marks omitted. Internal citation omitted.) Id. Therefore, the " inquiry is necessarily confined to a comparison between the current conditions and the last court order." Id. In light of these directives, the court does not consider evidence on the issue of Mr. Mendez's access to the children which predates June 16, 2015. See, Krasnow v. Krasnow, 140 Conn. 254, 260, 99 A.2d 104 (1953) (Plaintiff's reliance upon " conditions and circumstances bearing upon the fitness of the defendant which antedated the judgment, " was an improper effort by plaintiff " to reconsider a matter already disposed of and concerning which no new conditions had since occurred . . . We cannot say [the trial court] abused its discretion in refusing to allow the plaintiff to show that the representations which he made, before the judgment was entered, concerning the fitness of the defendant to have custody were untrue"); Petrov v. Gueorguieva, 167 Conn.App. 505, 526, 146 A.3d 26 (2016) (" [C]ircumstances existing prior to or at the time of the initial custody order are not grounds for a change of custody unless since that order there has been a material change in circumstances which puts into question the propriety of continuing the existing custody order").
As to the issues raised in the motion to modify, the court heard testimony from the GAL, Attorney Bridgit Garrity; Ms. Rasheena Ford-Bey, the Family Relations Counselor who prepared the update to the previous comprehensive evaluation; maternal grandmother, Ms. Prindle; Jacob Mendez; Shari Vega; mother and father. The court received multiple exhibits into evidence. The court makes the following findings of fact based upon the weightier more credible evidence.
Mother's parenting time commences on Friday evening and continues through either Sunday at 7 p.m. or Monday at 4:30, on an alternating week basis. The maternal grandmother, Ms. Prindle, lives in a two-bedroom apartment. When mother and the minor children had parenting time, it was crowded but manageable. The mother and the kids shared a single bedroom. However, if mother also brought her youngest child, who is a toddler, it was not manageable for Ms. Prindle. The toddler required too much attention and the apartment was not large enough to accommodate all five people, with one being the toddler. Therefore, in January 2015, visitation was curtailed to Friday and Saturday only if the youngest child was present. He would be present on those weekends that Mr. Mendez was not available to watch him during mother's parenting time. As a result, the parties' minor children have had less time with their half-brother, which causes all of the children a certain amount of stress and unhappiness. However, this situation has been in place, to one extent or another, since the youngest child was born. It was in place in January 2015 and it was in place at the time the June 2015 order was entered. There is no question that the children miss their little brother and would like to spend more time with him. In this regard, it does not appear that anything has changed. They missed him then; they miss him now.
The children are doing well academically. Aleyna has experienced some recent challenges in terms of her organization and the timely submission of homework. The parents have worked together on this issue. The parents can and do effectively co-parent. Each clearly recognizes the importance of the role each parent has in the lives of their children. Indeed, although there are differences of opinion regarding the parenting style of the other parent, neither parent testified to any substantial concern regarding the fitness of the other parent.
The children are also emotionally stable and generally happy. Aleyna has a " helper" relationship with the school counselor which she seems to enjoy, but is not receiving any treatment or services from this counselor or anyone else. Nor has there been any recommendation that she receive such treatment. Xavier appears well-adjusted and generally happy as well. Both children would like to spend more time with their mother. However, the father testified, credibly, that he is happy to provide mom additional time with the children whether for dinner or outings. This is not, from father's perspective, an issue. As long as Mr. Mendez is not present, father is willing to be flexible on mother's additional access. Mother has not taken advantage of these opportunities to see the children outside the set parenting schedule.
In October 2015, Ms. Prindle's brother became homeless and moved in to her apartment as well. Although it was to be temporary, he has been there for many months. His presence has exacerbated the burden placed on Ms. Prindle and her limited resources. In addition, having the mother and kids at her home for many weekends has limited her ability to visit and see her other grandchildren. While Ms. Prindle remains a stalwart of support to her daughter, her own health concerns and the evolving situation at her apartment is overwhelming for her.
Fortunately, Mr. Mendez obtained a job as a tractor trailer driver. As such, there are days during mother's parenting time when he is not home. On those days, father agreed that mother's parenting time could occur at her home. This has afforded Ms. Prindle some relief from her obligation to host her daughter's parenting time and has increased the children's time with their half brother. In addition, in order to allow the three children to spend time together, Mr. Mendez has, on occasion, stayed away from the home even when he was not working.
With respect to Mr. Mendez, the evidence established that Mr. Mendez does not like father and father does not like Mr. Mendez. While the instant motion was pending, in August 2016, Mr. Mendez posted pictures of himself with the minor children on Facebook. He included a caption which read: " I love my kids so much DADDY is gunna give yall the world © I love u aleyna and Xavier and of course my big boy jaydennn!!!! Ayeeeeee Courtney Lynn Mendez HAHAHAHAH LMFAOO." The posing of the children and the taking of the pictures is clearly inconsistent with the order that Mr. Mendez is to have only incidental contact with the children at transition times. It also raises the question of whether mother is abiding by the order that she do nothing which would foster a relationship between the children and Mr. Mendez. Furthermore, the posting was clearly designed to antagonize and provoke father.
In addition, father and Shari Vega testified credibly, that Mr. Mendez embarked on a course of conduct that was harassing, intimidating and in Shari Vega's case, frightening. Mr. Mendez drove by the Vega home on multiple occasions and blasted his horn as he passed. On one occasion, he ran into Shari Vega at a store parking lot and called her a bitch. Shari Vega further testified that during court appearances and immediately afterwards, Mr. Mendez has behaved in a harassing and intimidating manner. Twice, Shari Vega lodged complaints with the Torrington Police Department. Mr. Mendez also filed a complaint against father claiming similar conduct. No arrests were made but the escalation of the conflict is, unfortunately, very real.
The court also heard evidence regarding an incident at one of Xavier's sporting events. When Mr. Mendez learned that father was at one of Xavier's sporting events at the same time as Mr. Mendez's son, who was watching the event with mother, he became very angry and began yelling and screaming in front of Xavier. His rant included threats to physically harm father. The event was extremely upsetting for Xavier. To her credit, mother told father of the event and its impact on Xavier.
Mr. Mendez remains on the abuse registry in Massachusetts. He has not, as was suggested, undergone a psycho-sexual evaluation and risk assessment from a CATSO certified counselor. Although he had made efforts to investigate being removed from the registry prior to June 2015, his efforts since then have been de minimus . In short, very little has been done to address the concerns which arose as far back as 2012 regarding the allegations of sexual assault, his placement on the registry, and the concomitant concern that he poses a risk to the minor children. Indeed, if anything, Mr. Mendez's conduct has caused heightened concern regarding his interactions with the minor children. Having said that, the court notes with some optimism that Mr. Mendez, in hindsight, regrets much of the conduct detailed above.
Conclusions
In light of these findings, the court finds that the mother has failed to establish a substantial change in circumstances surrounding the children's emotional health as a result of the " imposed separation of children from their step-father and half-sibling." As noted, the imposed separation has been in place since well before the last order. Further, the evidence did not establish that since June of 2015 the children's emotional health has been negatively affected to the point of establishing a change of circumstances. To the contrary, the children appear to be generally happy and coping well, notwithstanding their desire to spend more time with their half-brother and mother. In this regard, they are not unlike many other children of blended families who must share half-siblings or step siblings with other parents.
Similarly, mother has failed to establish a substantial change of circumstances based upon the burden to herself and her youngest child at having to leave her husband and home each weekend. This is precisely the agreement mother entered into in June 2015. It is the arrangement that had been in place for months before June 2015. That she has changed her mind or finds it onerous does not equate to a substantial change of circumstances. Furthermore, this allegation is not a " change of circumstance affecting the best interests of the minor child[ren]." See, Malave v.Ortiz, 114 Conn.App. 414, 417, 970 A.2d 743 (2009) (Denial of request for leave to file a motion for modification affirmed where mother " mistakenly has equated a substantial change of her circumstances with a substantial change of circumstances affecting the best interest of the child"). Finally, given mother's testimony that she was contemplating this motion to modify at the time she agreed to the June 2015 order, this allegation is simply the manifestation of her effort to retry the issues surrounding Mr. Mendez's presence during her parenting time. In essence, it challenges the equity of that restriction.
Lastly, the court finds that the circumstances surrounding Ms. Prindle's hosting of mother's parenting time has changed substantially. The situation has become overwhelming for Ms. Prindle and it is simply not sustainable in perpetuity.
However, this change of circumstance has had little impact on the children themselves. In fact, the children are doing well under the current parenting plan. Looking to the factors set forth in Conn. Gen. Stat. § 46b-56(c), the current plan, in all other respects, remains in the best interests of the minor children and need not otherwise be altered. In this regard, the GAL's well-informed opinions are given great weight in light of her thorough investigation and assessment as well as her detailed and informative testimony. Therefore, the court simply lifts the requirement that mother's visitation occur at Ms. Prindle's home. The parenting plan is modified as follows:
The mother may exercise her parenting time at her home, at the home of maternal grandmother, or at another location agreed upon by the parties on the condition that Jacob Mendez shall not be present.
The parties may, by mutual agreement, evidenced by text, email or written correspondence, provide mother with additional parenting time, again, on the condition that Jacob Mendez shall not be present.
All other existing orders that are not modified by this agreement shall remain in full force and effect.
SO ORDERED.