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Fitzgerald v. Fitzgerald

Superior Court of Connecticut
Sep 27, 2018
UWYFA134029256 (Conn. Super. Ct. Sep. 27, 2018)

Opinion

UWYFA134029256

09-27-2018

Paul FITZGERALD v. Shirley FITZGERALD nka Barroso


UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE PLAINTIFF’S MOTION TO MODIFY POSTJUDGMENT (# 159.00) AND DEFENDANT’S MOTION TO MODIFY POSTJUDGMENT (# 179.00)

At the start of the hearing there were other motions pending. The plaintiff had a motion for order re: religion of the children (# 169.00) and the defendant has filed an objection to that motion (# 170.00). During the hearing, the parties reached a full agreement on that issue and the court adopted the oral agreement as an order of the court (# 169.10).

Adelman, J.T.R.

Custody disputes commonly rely on long and repetitive discussions of relatively minor events in the lives of the children that have been enhanced in an effort to convince the court of what an excellent parent one party is and how terrible a parent the other party is. The present matter is, unfortunately, no exception to that rule. Both parties were represented by competent counsel. The court heard evidence over a three-day period commencing on Monday, September 17, 2018 and completing on Thursday, September 20, 2018. Both parties testified as well as the plaintiff’s fiancée, two teachers and a family relations counselor. Numerous exhibits were offered into evidence. The plaintiff pre-marked fifty-three items of which twenty-five were accepted as full exhibits. The defendant pre-marked six items of which five were made full exhibits.

The court’s opening statement above is in no way intended as a criticism of counsel both of whom did an excellent job representing their respective clients. A special commendation to counsel for the defendant who filed her appearance only a day or two before the trial commenced. Without counsel, the defendant would have been at a major disadvantage.

The history of this case is one of moderate conflict postjudgment. The parties were married in early 2005 and had three children: Alicia who is currently 15; Bianca who is 12; and Erik who is 11. The court dissolved their marriage on June 6, 2013, Cutsumpas, J.T.R. (# 108.00) based on an agreement of the parties (# 107.00). The parties agreed to share joint legal custody with plaintiff being the primary custodial parent. The parental access schedule called for the defendant to have the children in her care on alternate weekends running from after school on Friday through return to school on Tuesday morning and on the opposite week from Monday after school until return to school on Tuesday. The children resided in Woodbury with their father while the defendant lived in Naugatuck. The agreement also called for deviation in child support to zero given the defendant’s visitation expenses.

This arrangement has been a source of conflict both in terms of the access schedule and the lack of child support. Motions were filed by both parties on both issues several times over the years. Recently both issues were the subject of extended postjudgment hearings. The custody issue being the subject of the instant hearing while the support matter was heard over a five-day period from June 8, 2017 through May 8, 2018. That hearing resulted in a Memorandum of Decision in which the child support obligation of the defendant was increased from forty dollars per week to one hundred dollars per week which was still a downward deviation based on visitation expenses and other factors (# 189.00).

The matter was heard by Family Support Magistrate Sanchez-Figueroa who is now a Superior Court Judge.

The current custody issue before the court is formally related to the plaintiff’s decision to relocate from Woodbury to Farmington in mid August 2017. His motion to open and modify, filed a few days before the actual move, was based on that event and he is seeking the elimination of the defendant’s parental access on Sunday and Monday nights (# 159.00). The defendant’s motion to open and modify (# 179.00) was filed some five months later and was also based on his move as well as other related issues.

During the hearing, the defendant attempted to limit the plaintiff’s evidence to the fact that he moved and nothing else given that was the only reason he cited in his motion. The plaintiff argued that the motion was filed by the plaintiff when he was self-represented and that the Judicial Branch form provided is misleading. The form (JD-FM 174) directs the person filing the motion for modification to state how the circumstances have changed since the last court order. The plaintiff did that, but the form, in its very limited space, does not ask how the requested orders would serve the best interests of the children involved.

In actuality, the plaintiff’s decision to relocate to Farmington was a very minor issue for the defendant. She never even raised any concern over the move until the end of September despite the fact that the plaintiff informed her of his new address more than sixty days earlier (exhibit # 28). Additionally, the parties maintained the parenting schedule throughout the academic year 2017-2018 without issue. There was no evidence that the defendant had failed to get the children to their schools in a timely fashion or that they repeatedly missed any other scheduled activities. The plaintiff argued that although the commute for the defendant between their homes was more miles, the time necessary to drive was the same because the new route was almost all interstate highways as opposed to the back country roads of the prior trip (exhibit # 51). The issue raised by the plaintiff was that the children would be better served by not having overnights with the defendant on school nights. His argument was based on the fact that two of the three children were now identified as having special educational needs which might be exacerbated by such a disruptive schedule and by the fact that the defendant was not entirely reliable in her efforts to pick up the children at the end of the school day.

The defendant’s motion sought to increase her parenting time with the children to three out of every four weekends on the same Friday through Tuesday schedule. She also sought additional time to be carved out of the Christmas and the April school vacations. She argued that such a revised schedule would compensate her for the extra driving she was forced to do after the plaintiff’s unilateral decision to relocate to Farmington.

The basic facts are not in dispute. The plaintiff did relocate from Woodbury to Farmington and although he did give the defendant advance notice of his move, he never made any effort to discuss the move with her. The defendant never raised any objection to the move prior to it taking place and even then not for two months after the plaintiff’s relocation to Farmington. The Farmington school system has provided, and continues to provide, excellent educational programs for the three children. The evidence suggests that to some degree the Woodbury school system was not as decisive in addressing the needs of the children. The children continue to participate in the same type of extra curricular activities as they have in the past. The evidence provided to the court indicates that the children are doing well in their respective schools especially now that two of them are being provided with special education assistance. The parties lack even the most basic coparenting skills and rarely, if ever, actually speak to one another. The defendant is remarried and her current husband is supportive, but frequently absent from the home for work-related duties or in meeting his other familial commitments. The plaintiff is engaged and his fiancée has been a major source of assistance to him both financially and in providing child care for the three children. Both of the parents’ new partners are positive influences on the children and the parties.

The conflicts in the efforts to coparent are based, in large part, on the two extremely different personalities and parenting styles of the parties. The plaintiff is a very organized person who tends to plan things out in minute detail; the defendant is not. The plaintiff believes that each person must take individual responsibility for their actions and has difficulty understanding if another does not follow that concept. He has difficulty accepting that people make mistakes and that not all actions taken are done with a malicious purpose. The defendant tends to over extend herself which may lead to her inability to do something that she has committed herself to do. She is far less organized than is the plaintiff and is far more flexible in her parenting of the children. She is less precise in her communication and tends to avoid potential confrontations by simply saying nothing at all. It is these differences that created the events which have taken on the monumental proportions cited at the very start of this decision.

The defendant missed the fifth grade "graduation" ceremony of one of the children and failed to plan appropriately to be able to take one of the other children to a promised mother/daughter dance. The plaintiff in his demand for personal responsibility and planning created a situation that allowed the children to remain outside of the house for a short period of time in very foul weather. Additionally, that same demand has resulted in decisions being made by him in a unilateral rather than coparenting fashion. As bad as each of these events may have been at the time, none of them condemn the parent at fault as being a bad or incompetent parent. None of these events alone demand a significant change in the agreed-upon parenting schedule of 2013, but the overall impact of the different parenting styles and personalities does require some adjustment especially during the school week.

In this matter the court has been assisted by a very complete evaluation of the custodial issues completed by Family Relations Counselor Noel Breg (exhibit A). Counselor Breg’s report provides a detailed history of this family including the involvement at different times of the local police and the Department of Children and Families (DCF). Considerable efforts to assist these parents develop more appropriate coparenting communication skills have been unsuccessful in the past. The parents agreed in the past to use Our Family Wizard (OFW) for their routine, nonemergency communications. This court has found the use of internet-based parental communication sites such as Our Family Wizard to be extremely helpful. Such programs offer tamper-proof communications between the parents that are computer time stamped both as to when the message is sent, but also as to when the message is viewed by the other party. Third parties, such as the GAL or the coparenting counselor are able to monitor the communications which often improves the tone and tenor of the messages. A calendar is available for scheduling the child’s activities and it records who put the item on the calendar and when. Online-shared calendars can help to avoid the pitfalls of parenting from separate households. Using a shared online calendar can keep both parties informed without the danger of additional and potentially negative input. An information bank keeps both parents up to date as to all providers of service to the child with contact information as to the teachers, doctors, coaches, etc. There are smart phone applications that allow access to the program even when the parents are away from home. If the parties are not able to meet or speak face to face, OFW is an absolutely essential tool.

In addition to the plaintiff relocating to a new residence in a different town, both the parents have now obtained employment in locations considerably further from their residences at the time the original parenting plan was approved. The addition of new spouses, or soon to be spouses, is also a material change that the court may consider in issuing its orders.

"[T]he best interests of the child include the child’s interests in sustained growth, development, well-being, and continuity and stability of [the child’s] environment." (Internal quotation marks omitted.) Feinberg v. Feinberg, 114 Conn.App. 589, 594, 970 A.2d 776 (2009), appeal dismissed, 302 Conn. 463, 28 A.3d 958 (2011); In re Ryan R., 102 Conn.App. 608, 625-26, 926 A.2d 690, cert. denied, 284 Conn. 924, 933 A.2d 724 (2007). "Although our legislature has promulgated a series of criteria that a court may consider in determining a child’s best interests, the best interest standard remains ‘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, 2001, Frazzini, J.). No single statutory provision is controlling nor is the court limited to the criteria specified by the legislature in deciding what is best for a particular child in a particular situation. As our courts have long emphasized, a best interest determination ‘involves weighing all the facts and circumstances of the family situation. Each case is unique.’ Gallo v. Garin, 184 Conn. 36, 44, 440 A.2d 782 (1981)." White v. White, Superior Court, judicial district of New Haven at Meriden, Docket No. FA-16-5007050-S (September 7, 2017, McNamara, J.).

The changes in the residences, the employment of the parties, and the educational needs of the children warrant a modification of the parenting plan. Despite the fact that the defendant has been able to get the children to school on her parenting days does not eliminate the fact that the children are required to travel a relatively long distance on school days. The identified learning needs of at least two of the children would be best served by residing in the same home on school days. The evidence supports that the plaintiff is better able to maintain a stable schedule during the school week which is a benefit to the children. An adjustment to the parenting schedule to keep the children with the plaintiff during school days and increase the defendant’s parenting time when the children are not in school would be a benefit to them and in the best interests of the children. The inability of the parties to effectively coparent warrants the imposition by the court of a decision making protocol to assist them in reaching joint decisions. Much of the testimony given by both parties emphasized how the current arrangement benefitted or hurt them individually; there was not a great deal of emphasis in that testimony as to what was best for the children. Each party has strengths and weaknesses and making joint parenting decisions would be of great benefit to the children.

The court has listened carefully to the witnesses and assessed their credibility. "It is the sole province of the trial court to weigh and interpret the evidence before it and to pass on the credibility of the witnesses ... It has the advantage of viewing and assessing the demeanor, attitude and credibility of the witnesses and is therefore better equipped than we to assess the circumstances surrounding the dissolution action." (Emphasis in original; internal quotation marks omitted.) Zahringer v. Zahringer, 124 Conn.App. 672, 679-80, 6 A.3d 141 (2010). The court has reviewed all the exhibits and given them the appropriate weight. The court has applied all applicable law as explained and interpreted by our appellate courts. The court takes judicial notice of all pleadings in the court’s file. Accordingly, the court makes the following findings of fact:

A. There has been a material change in circumstances since the orders regarding the parenting plan for the three minor children were made; B. The best interests of the three minor children would be best served by limiting the need for them to reside in more than one home during school time; C. The best interests of the minor children would be best served by establishing one time and location for the exchange of said children between the parents; D. The use of OFW, or some other similar program, is in the best interests of the minor children as it provides the parties and any future court with a clear documentation of communication as well as offering appropriate venues for calendaring the children’s activities and those professionals who are providing services to said children; E. A clear and strict protocol for making joint parenting decisions would help the parties coparent and produce a more stable and consistent base for the minor children; F. Providing a parenting access schedule that maximizes the time the children have with each parent is the best interests of preserving and enhancing the parent/child relationship for each of the parties and the minor children; and G. Changes in the parenting plan would not significantly alter the child support orders previously entered by the family support magistrate.

In consideration of the factual findings enumerated above, the court hereby

ORDERS:

I. Plaintiff’s motion to open and modify the parenting plan (# 159.00) and defendant’s motion to open and modify the parenting plan (# 179.00) are granted as follows:

A. During the academic year:
1. The defendant shall have parenting access to the minor children on alternating weekends from Friday evening at 6:00 p.m. through Sunday evening at 7:00 p.m.;
2. On the alternate week, the defendant’s parenting time shall be from Friday evening at 6:00 p.m. through Saturday at 10 a.m.;
3. The defendant, or her designated representative, shall pick up the children from the plaintiff’s home at the start of her parenting time and the plaintiff, or his designated representative, shall pick up the children from the defendant’s home at the start of his parenting time;
4. If the defendant’s weekend is followed by a Monday Federal holiday, the children shall remain with her until Monday evening at 7 p.m.;
5. The children shall be with the defendant for the Christmas school vacation from noon on December 26th to the Sunday prior to the return to school at 6 p.m.;
6. The children shall be with the defendant for the spring school vacation, if any, from the release from school for said vacation to the Sunday prior to the return to school at 6 p.m.;
7. If there is another school vacation- a period of four consecutive days or more- during the school year, said vacation shall be with the plaintiff.
B. During the summer school vacation:
1. The children shall be with the defendant for the summer vacation except that the plaintiff shall have a five-consecutive-day period with the children from July 12th at 9 a.m. through July 16th at 8 p.m.;
2. The children shall attend Camp Hazen, or some other camp of the plaintiff’s choice, for a two-week period in August at the plaintiff’s sole expense;
3. The children shall be with the plaintiff for the last full four days prior to the start of their summer camp and prior to the start of the school year.

C. No changes shall be made to the holiday schedule previously entered as an order of the court except that the fourth of July shall always be with the defendant as part of her exclusive July time with the children;

D. This change in the parenting plan alone shall not be considered a significant change in circumstance to seek a modification of the current support orders;

II. General custodial orders:

A. The parties shall continue to use OFW for their nonemergency coparenting communications:
1. Each party shall maintain a current subscription to the OFW website;
2. Parties shall check OFW at least once every other day;
3. All activities for any of the minor children shall be posted on the OFW calendar as soon as possible after such information is received by either party;
4. All providers of services to the minor children shall be listed in full in the information bank including, but not limited to teachers, coaches, doctors, dentists, child care providers and the like. Said information shall be updated in a timely fashion as changes occur.
B. Emergency information shall be communicated immediately by text and/or phone;
C. All exchanges of the children shall be curbside;
D. Parties are free and are encouraged to be flexible with the parenting access schedule to meet the changing needs of the children and the parties as long as any such changes are agreed to by both parties and are memorialized in writing through OFW;
E. The minor children shall have reasonable access to the noncustodial parent when in the care of the other parent and the custodial parent shall not unreasonably interfere with said access;
F. The noncustodial parent may have phone or computer access to the children while in the care of the custodial parent once every other day;
G. Both parents are to take all necessary steps to arrange for ongoing communication between the children’s various professional providers and themselves by providing such providers with the other parent’s contact information and informing them of the joint legal custody orders;
H. As joint legal custodial parents, the parties shall consult with one another on all significant, nonroutine decisions involving the health, education, religion, and general welfare of the minor children:
1. Day-to-day decisions shall be made by the parent with whom the children is with in accordance with the detailed schedule discussed below;
2. Neither parent shall make a nonemergency unilateral decision or take nonemergency unilateral action regarding the children;
3. Significant, nonroutine decisions shall include but not be limited to the following areas:
a. selection of schools and educational decisions;
b. the residence of the children;
c. daycare providers including after school and summer camp programs;
d. participation in extra curricular activities that require commitments of time and transportation involving the other parent;
e. nonemergency medical, dental, psychological, psychiatric, or orthodontic care including the selection of the care providers;
f. participation in religious organizations and activities; and
g. trips away from home without a parent that involve a distance of more than 50 miles, leaving the State of Connecticut or overnight stays.
4. Either parent may propose to the other a course of action as to such mutual decisions:
a. The proposal, as well as all subsequent communications, must be in writing and shall contain sufficient information and appropriate documentation as necessary to fully explain the complete nature of the intended decision;
b. The other party shall, within 24 hours, indicate approval or indicate disagreement and offer an alternative proposal to which the first parent must respond within 24 hours;
c. Either party may request additional information or offer modifications of their proposal;
d. The 24-hour reply rule will apply to all communications;
e. Any failure to respond to a proposal, request for more information or failure to provide an alternative proposal shall be considered an agreement by the noncommunicating parent absent a valid reason for the delay;
f. The process will end when the parties agree, or accept that they cannot agree on one plan, or after seven days- counting from the first communication- which ever first occurs;
g. In the event of no agreement and compliance with the procedure detailed above, the plaintiff shall have the final authority to make the decision.
I. Each parent shall be responsible for transporting the children to their scheduled activities during their parenting time;
J. Both parents and their families may attend all the children’s activities regardless of whose parenting time it might be;
K. The children shall be with the plaintiff on Thanksgiving 2018 from 6 p.m. to attend and participate in the plaintiff’s wedding scheduled for November 23, 2018. The plaintiff shall pick up said children at the defendant’s residence and the defendant shall pick up the children at 127 Lockhart Avenue, Waterbury- the residence of Marita Fitzgerald- at 6 p.m. on November 23rd;
L. Neither party shall make any derogatory comments about the other parent or the other parent’s extended family, or engage in any negative behavior in regard to the other parent or the other parent’s extended family in the presence or hearing of the minor children and shall make all reasonable efforts to not allow others to do the same;
M. Neither party shall discuss any adult or court issues with the minor children and shall make all reasonable efforts to not allow others to do the same;
N. Each party shall work to enhance the relationship between the minor children and the other parent and the other parent’s extended family;
O. Neither party shall change their phone number or other contact information without providing the same to the other party in advance;
P. Neither party shall change their primary residence without giving the other party sixty days written notice of such intention and such intention shall also be communicated through the OFW website within the same sixty-day time period; and

III. All other orders not specifically modified by these orders shall remain in full force and effect.

" ‘[M]odification of a custody award [shall] be based upon either a material change in 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." Kelly v. Kelly, 54 Conn.App. 50, 55, 732 A.2d 808 (1999), quoting Walshon v. Walshon, 42 Conn.App. 651, 657, 681 A.2d 376 (1996). See also Barros v. Barros, 309 Conn. 499, 506 n.6; 72 A.3d 367 (2013); Malave v. Ortiz, 114 Conn.App. 414, 424, 970 A.2d 743 (2009); and Daddio v. O’Bara, 97 Conn.App. 286, 292, 904 A.2d 259, cert. denied, 280 Conn . 932, 909 A.2d 957 (2006). "The burden of proving a change to be in the best interest of the child rests on the party seeking the change ... To obtain modification, the moving party must demonstrate that circumstances have changed since the last court order ... Because the establishment of changed circumstances is a condition precedent to a party’s relief, it is pertinent for the trial court to inquire as to what, if any, new circumstance warrants a modification of the existing order." (Citations omitted; emphasis added; internal quotation marks omitted.) Barros v. Barros, supra, 506 n.6. As to modification of visitation orders, however, our Appellate Court has explained that the court is not required to find as a threshold matter that a change in circumstances has occurred. In Balaska v. Balaska, in facing the issue of whether a substantial change in circumstances is needed in the context of a modification in visitation, the court explained: "This premise, however, reflects a misunderstanding of the applicable law. In ruling on a motion to modify visitation, the court is not required to find as a threshold matter that a change in circumstances has occurred ... Instead, [i]n modifying an order concerning visitation, the trial court shall be guided by the best interests of the child ... Accordingly, the court’s alleged failure to find a substantial change in circumstances [does not] render [a] order modifying visitation improper." (Citations omitted; footnote omitted; internal quotation marks omitted.) Balaska v. Balaska, 130 Conn.App. 510, 515-16, 25 A.3d 680 (2011). See also Szczerkowski v. Karmelowicz, 60 Conn.App. 429, 433, 759 A.2d 1050 (2000) ("[w]hen a court rules on a motion to modify visitation, it is statutorily incumbent on the court that its order be guided by the best interest of the child standard"). The move to a different town and school system is clearly a material change in circumstances and meets the condition precedent necessary to allow the court to hear evidence as to what is in the best interests of the children despite the fact that such items might not have been included in the original motion or have occurred after the filing of the motion. For these reasons, as well as the fact that Practice Book § 10-1 provides an opportunity for the other party to ask for a more complete statement by the moving party which was never done, the court allowed evidence to be submitted as to the changes that might serve the best interests of the children and not limit the hearing to the plaintiff’s move only.


Summaries of

Fitzgerald v. Fitzgerald

Superior Court of Connecticut
Sep 27, 2018
UWYFA134029256 (Conn. Super. Ct. Sep. 27, 2018)
Case details for

Fitzgerald v. Fitzgerald

Case Details

Full title:Paul FITZGERALD v. Shirley FITZGERALD nka Barroso

Court:Superior Court of Connecticut

Date published: Sep 27, 2018

Citations

UWYFA134029256 (Conn. Super. Ct. Sep. 27, 2018)