Opinion
No. FA 06-4104170-S
April 4, 2007
MEMORANDUM OF DECISION
The parties to this action were married on January 13, 1997, in Iowa City, Iowa, which marriage was dissolved by agreement on May 16, 2001, in New Jersey. They have one minor child, Nandaki Nikhila Bonthu, born February 28, 1998. As part of their Separation and Property Settlement Agreement, they entered into a comprehensive custody and parenting schedule. Since the date of the judgment, the defendant relocated to Connecticut with the minor child, while the plaintiff resides in New York. The foreign matrimonial judgment was filed in this court in accordance with General Statutes § 46b-71, by the defendant who subsequently filed a Request for Leave for Permission, to file a motion for modification in accordance wit P.B. § 25-26, which request was granted. (Swienton, J.)
The Motion to Open and Modify Judgment, #106, claimed that since the date of the original judgment, due to the defendant's relocation to Connecticut as well as the plaintiff's relocation to New York, the access schedule was not appropriate, and the defendant was seeking a modification of the schedule, designation as the primary residential parent, an order for child support, and restrictions regarding future relocation. On September 5, 2006, the court appointed a guardian ad litem on behalf of the minor child, referred the matter to family relations, and ordered the defendant not to relocate further from the plaintiff's residence.
The plaintiff filed his own Request for Leave for Permission to File a Motion for modification on July 26, 2006, which request was also granted. His motion for modification requested that he be granted primary, physical and residential custody of the child, visitation to the defendant, a modification of the access schedule, as well as a psychological evaluation of the defendant and a prohibition of further relocations.
The defendant also filed a motion for psychological evaluation, #111. The agreement of the parties, which was accepted and made orders of the court, stated that the parties would undergo a parent-child custody/access psychological evaluation with Dr. James Connolly, and the plaintiff would pay for the evaluations subject to reallocation at a future date by agreement of the parties or by order of the court. (Swienton, J., #114). Since the evaluation by the family relations office would not be completed until January 2007, the parties entered into a stipulation on October 20, 2006, regarding access until the final hearing. Part of that stipulation provided that child support orders would also be determined by the court at the final hearing in January, and would be made retroactive to August 25, 2006.
A trial was held on February 7, 2007. Both parties were present, represented by counsel, as well as the guardian ad litem for the minor child. The parties reached an agreement which was accepted by the court and made orders of the court. The agreement provided that the defendant would be permitted to relocate to the Potsdam, New York area. The parties would share joint legal custody of the minor child, with the defendant designated as primary physical custodian. The agreement further provided for a parental access schedule for the plaintiff, as well as a provision for access to records.
The following issues were presented to the court for determination.
1. How is transportation for access with the minor child to be accomplished.
2. What is the division of the guardian ad litem fees.
3. What is the allocation of the fees for the psychological evaluation.
The issue of allocation of the cost of the psychological evaluation was not addressed at trial. Per the stipulation of the parties, dated October 10, 2006, the plaintiff paid for the evaluations. The defendant filed a Motion for Allocation of Costs of the Court-Appointed Expert Psychologist on February 21, 2007. Although the psychologist was not required to testify, he did in fact appear at court and submitted a bill for his services in the amount of $1,800. The court finds that it has enough information before it to order payment of this bill although the issue was not addressed at trial.
4. What is the amount of child support to be ordered, and which state's guidelines should be followed.
5. What is the logistics for the webcam communication between the minor child and the parent.
The court heard testimony from both parties as well as the guardian ad litem. Both parties are physicians. The plaintiff resides in Poughkeepsie, New York, with his wife, who is pregnant. The defendant has accepted a new position with a hospital in the Potsdam, New York area. The exchanges of the minor child for visitation up to now have been problematic. There were several occasions in which the defendant did not show up for the exchange, and there has been a failure in communication between the parties. Both parties supplied the court with elaborate proposals for the exchanges. The plaintiff proposed that the minor child fly from Syracuse, New York to Newark, New Jersey, and he would pick her up at the airport in Newark. This would mean that the defendant would be required to drive from Potsdam to Syracuse, approximately 2 1/2 hours, have the child wait at the airport a minimum of one hour prior to take off, fly to Newark, and then the plaintiff would drive from Newark to his home in Poughkeepsie, another approximately two hours.
The lengths of time for transportation were set forth in the defendant's proposed orders.
The defendant's proposal was equally contrived. She proposed driving from the Potsdam area into Canada, approximately two hours, the child would fly from Ottawa to LaGuardia airport, and the plaintiff would drive from Poughkeepsie to LaGuardia, approximately 1 1/2 hours, to pick the child up and then drive back to his home. This would mean crossing the Canadian border, a flight of approximately 1 1/2 hours, air time, and a drive from Poughkeepsie to LaGuardia and back. Neither of these proposals took into account possible airport delays, amount of time spent at the airport, etc. Did either of these parents give any consideration to the best interests of the minor child in devising these transportation schemes?
In the alternative, the defendant proposed meeting at a neutral spot at a midpoint between Potsdam and Poughkeepsie. Because the parties have had prior difficulties, the defendant proposes that "she park her vehicle on the Entrance side of [the] McDonald's, that the [minor child] walk through the restaurant and enter [the plaintiffs] vehicle which shall be parked on the Exit side of [the] McDonald's." Defendant's Proposed Orders. What is the message being sent to the minor child? To think that two highly educated individuals cannot put their personal feelings aside for the benefit of their minor child is beyond reason.
The guardian ad litem submitted a bill for her services totaling $18,962.28, which bill is attached hereto as Schedule B. The defendant filed an objection to certain of the GAL's charges and requested an allocation of the cost of the GAL's services as well as an " Amended" Objection to her fees. The GAL submitted an affidavit with her bill, in which she swore under oath that the "parties and their attorneys requested [her] presence at the deposition [she] attended . . . The attorneys specifically communicated with [her] personally and via e-mail, telephone, fax and mail to ensure [she] could attend each deposition." Her bill indicates her hourly fee to be $175 per hour, clearly a fair and reasonable fee. The court finds her fees and invoice to be fair and reasonable and the time spent on the matter necessary and required.
Editor's Note: Schedule B has not been reproduced herein.
There is currently a bill outstanding for professional services of the court-appointed psychologist in the amount of $1,800. The plaintiff paid for the initial evaluations per a stipulation of the parties in the amount of $6,000 subject to reallocation by agreement of the parties or the court.
The court was furnished with financial affidavits of both parties. The plaintiff has a gross income of approximately $280,020 and a net income of approximately $158,000. He has other assets, excluding a vehicle, of approximately $177,000. The defendant furnished the court with two financial affidavits, one indicating no income, and another showing her income based upon her new employment. Her gross income is $140,000, and net income is $96,000. She indicated in her testimony that is her guaranteed salary, but she is entitled to certain incentive bonuses depending on the number of patients she sees and the revenue she generates. Her affidavit shows almost no assets, and substantial debts, the majority to her family, which she categorizes as "Family Loans"; however, no evidence was provided to the court to indicate the money is to be repaid. The rest of her liabilities are in the nature of attorneys fees.
The plaintiff contributes $293 per week to a 401(k) plan and this amount was deducted from his gross weekly income to arrive at the net income figure.
There is an issue as it relates to the child support determination and that is, which state's guidelines are appropriate in determining the amount of child support. "Because we are giving effect to a foreign state order which is subject to modification in the foreign state, and because we seek to foster uniformity of result between the parties, we find it appropriate that any question of modification should be resolved under the foreign state's law." Walzer v. Walzer, 173 Conn. 62, 76 n. 6, 376 A.2d A.2d 414 (1977). "[O]ur legislature, by enacting the Uniform Reciprocal Enforcement of Support Act, expressed its intention that Connecticut courts recognize and enforce foreign alimony and support decrees regardless of whether they are modifiable, but it also recognized that parties against whom enforcement is sought must be afforded an opportunity to be heard on the issue of modification," Id., 71-72. Thus, the court has subject matter jurisdiction of these motions and, when modifying the matrimonial judgment, the substantive law of New Jersey applies. Vitale v. Krieger, 47 Conn.App. 146, 148-49, 702 A.2d 148 (1997); accord Burton v. Burton, 189 Conn. 129, 134, 454 A.2d 129 (1983).
The courts in Connecticut are not as clear as to which state's support guidelines to apply. In Evans v. Evans, 35 Conn.App. 246, 644 A.2d 1317 (1994), the court held that the controlling substantive law was the New York law of domestic relations to modify child support payments of a New York judgment. While the decision did not address specifically which state's guidelines to follow, the court found no abuse of discretion by the trial court in applying the New York child support guidelines in the case. Id., 250-51.
General Statutes § 46b-71 requires the court to apply the substantive law of New Jersey in modifying a foreign judgment. The question arises as to whether the child support guidelines are substantive or procedural in nature. "`Child support and arrearage guidelines' means the rules, principles, schedule, and worksheets established . . . for the determination of an appropriate child support award, to be used when initially establishing or modifying both temporary and permanent orders." Child Support and Arrearage Guideline Regulations, § 46b-215a-1(5). The court finds that the child support guidelines are substantive in nature and therefore the New Jersey Guidelines are to be followed in determining the current child support amount. The court finds, based upon its findings of incomes of the parties noted above, the presumptive child support amount in accordance with New Jersey State Guidelines to be $237 per week.
It should be noted that upon the relocation of the defendant, all parties shall reside in New York, including the minor child. Since the child support amount in New Jersey is less than in Connecticut, this appears to be more about the amount of the order rather than the application of the proper jurisdiction.
ORDERS: 1. Postjudgment Agreement.
The Postjudgment Agreement dated February 7, 2007, and attached hereto as Schedule A, shall be made orders of this court, incorporated in this judgment and a modification of the judgment. All prior orders not inconsistent with this Agreement shall remain in full force and effect.
Editor's Note: Schedule A has not been reproduced herein.
2. Transportation.
All exchanges shall take place at the McDonald's restaurant immediately adjacent to Exit #21 from Interstate Route 87 in Lake George, New York. Each party shall hire a car to drive the minor child to the McDonald's and then to drive the minor child to either the plaintiff's home when it is his access or back to the defendant's home at the end of the visitation. Each party shall be responsible for the costs of their part of the transportation.
3. Guardian Ad Litem Fees.
The court finds the fees totaling $18,962.28 to be fair and reasonable. In accordance with General Statutes § 46b-62, the court has considered the financial resources of both parties and the criteria set forth in General Statutes § 46b-82. Lamacchia v. Chilinsky, 79 Conn.App. 372 (, A.2d (2003). The plaintiff has previously paid the guardian ad litem $4,351.50. The court orders that the parties share equally in said fees; therefore, the plaintiff shall receive a credit for the amount previously paid, and the court orders him to pay $5,129.64 and the court orders the defendant to pay $9,481.14.
4. Psychological Costs.
The defendant shall pay the amount of $1,800 directly to Dr. James Connolly for his services rendered.
5. Child support.
Pursuant to New Jersey Child Support Guidelines, the plaintiff shall pay the defendant $237 per week in child support. Said amount is retroactive to August 25, 2006, with appropriate credits given for any amounts paid.
Neither party furnished this court with any retroactive amounts or credits.
6. Webcam Communication.
Within fourteen days of this Memorandum of Decision, each party shall secure and maintain a computer with all necessary service and equipment to allow for internet and webcam communication between the minor child and each parent. Said internet communication between the child and the parent shall be unrestricted. The webcam communication/access between the child and the party shall be each Sunday, Tuesday, Thursday and Saturday between 6:30 p.m. and 8:00 p.m., unless the minor child is on a vacation away from the parent's home or has some other planned activity. The child shall be given privacy for all internet and webcam communications with each parent and said communication shall not be limited or interfered with by either parent.
So ordered.