Opinion
No. FST FA 02 0189659 S
December 17, 2007
MEMORANDUM OF DECISION
Several postjudgment motions are the subject of this decision. These postjudgment matters were tried over several days concluding December 6, 2007. All of them pertain to custodial and parenting issues between the parties.
The motions before the court are:
1. Defendant's Motion for Contempt, #287, dated November 28, 2007;
2. Plaintiff's Motion for Modification, #288, dated December 4, 2006;
3. Defendant's Motion for Contempt, #303, dated August 13, 2007;
4. Defendant's Motion for Contempt, #305, dated August 13, 2007;
5. Defendant's Motion for Modification, #311, dated October 25, 2007;
6. Two Motions for Sanctions, dated November 12, 2007 filed at the inception of the hearing;
7. Defendant's Motion for Restraining dated December 6, 2007 filed as evidence was concluding on the 8th day of the hearing.
These parents' marriage was dissolved on May 10, 2004 after a trial. The parties had, however, submitted a written stipulation as to custody and parenting time. The judgment provided that the parents would have joint legal custody of their two children; the primary residence of the children was ordered with the plaintiff; the parties are to have "an equal say in decisions" and be equally involved in major decisions. The orders detailed the parenting time of the parties, including the weekly, holiday and vacation schedules. The father's weekly parenting time is essentially, every other weekend Friday after school to Monday at school, alternating Thursdays after school overnight and Tuesdays from 5 to 6:30. The plaintiff and defendant have a shared holiday and school vacation schedule that is very specific, including details as to times of pickup and drop off. As to summers, each parent has two 7-day non-consecutive vacation weeks. The father is also entitled to six additional parenting days per year that do not attach to his regular parenting times, including vacations. Vacation time and additional parenting time by the defendant are as provided in the orders and will be detailed as necessary to dispose of specific motions.
The plaintiff provided the defendant written notice (as required by the judgment) of her intent to relocate the residence of the children with her to Winhall, Vermont. It is this intention that is the subject of the plaintiff's December 9, 2006 motion (#288) seeking permission of the court and orders furnishing modified parenting time with the defendant in light of the relocation. This is opposed by the defendant.
The parties agreed, and the court appointed a psychologist, Dr. Joan Oppenheim, to perform a relocation study. The study was performed and as described later an addendum to the study was concluded.
The interests of the minor children, Jessica, born September 6, 1998 (9 years old) and Patrick, born February 22, 2001 (6 ½ years old) were represented in the proceedings by a guardian ad litem, Louise Truax, and an attorney as well.
At the hearing of this motion (and the other pending motions) many exhibits were entered and testimony was received from the plaintiff, the defendant, Honor Simeone, Dr. Pauline Jordan, Dr. Joan Oppenheim (the court-appointed psychologist), Louise Truax (guardian ad litem for the children), Douglas McKenzie (the husband of the plaintiff) and Dr. Mary F. Bissell (headmaster of the Maple Street School, Winchester Center, Vermont).
Based upon the credible evidence the court finds the following facts:
The plaintiff is 43 years old. She grew up in Manchester, Vermont, the locale to which she seeks to relocate with her children. While she left there as a teenager for life in New York City, she seeks to return to this area of her upbringing. Her mother lives in the vicinity; they have a close relationship. By her self-reporting to Dr. Oppenheim, the court finds she has always worked hard. She is in good health. She has a high school level education. Her job skills have before the marriage to the defendant been in building and construction trades, as well as teaching skiing. She currently maintains her training as an EMT.
The defendant is 45 years old. Significantly for him, his parents divorced when he was 10 years old. At that time he had resided in the Greenwich area. His mother moved with him after the divorce to Idaho, which by flight was no less than 8 to 10 hours from New York City. Four years later he moved back to Greenwich to live with his grandparents, which took him then to Choate and Yale. His view of the event of his parents' relocation has had a significant impact on his views toward the plaintiff's desire to relocate now. He is still tearful about his being relocated as a child and neither understands why his mother moved with him to Idaho, nor why his father allowed it. The defendant is now remarried and has a new child (1-year-old, Katarina) with his second wife. He acknowledges he was not quite ready for this but has embraced it. The defendant is in good health. He is self-employed at a start-up financial consulting company. While it does not cover his cost of living, he apparently (reviewing the parties' financial affidavits) has been current in his financial obligations to the plaintiff arising out of the parties' judgment. He is hopefully for the economic prospects of his start-up company.
Notably, the parties met while skiing in Vermont. During their short marriage they moved from New York City to Greenwich. During the parties' marriage each became involved with third parties, obviously as a result of their marital unhappiness. The plaintiff ultimately met her now husband when both were in paramedic training. This divorce followed. Immediately after the divorce, the plaintiff and her husband (then boyfriend) bought a condominium home in Stratton, Vermont. Plaintiff spent all of her non-parenting blocks of time there. In 2006, they put that condominium home on the market for sale (where it now remains) and purchased a farmhouse nearby, situated on approximately 150 acres. They married a short time later. It is to this home that the plaintiff seeks to relocate with the children. Presently the plaintiff lives in Old Greenwich, Connecticut. She has sold her home and intends to move regardless of the present motion. She does not like the culture of life in Greenwich nor does she feel she can afford its standard of living. If she is not permitted to relocate with the children to Vermont she hopes to move to Fairfield, CT.
The defendant, after the dissolution, remarried. They live in Greenwich, Connecticut. They own their own home. The monthly mortgage payment on the home is over twice the current monthly income of the defendant. He has hopes his consulting business will continue to grow successfully. He also has hopes that certain litigation he is involved in will result in between $800,000 to $1,200,000 to him in the next year to alleviate his financial stresses, though he acknowledges this is not guaranteed. Indeed, he has declared no value to it on his financial affidavit. Currently he pays child support to the plaintiff in the amount of $2,320.00 per month.
Jessica currently attends fourth grade at the Old Greenwich School. She has been in therapy for several years, first with Dr. Jordan and more recently she has been seeing the school psychologist. She is by all accounts a delightful and capable young lady. It has been determined that she has ADHD, though the court evaluator wonders if left to be free from stress and allowed to be a happy and anxiety free child, whether those symptoms would alleviate. For now she takes medication; she has shown positive effects in her schooling. She has had the benefit of educational support in and out of the classroom. She is succeeding more regularly in her school work this year. Her physical health is good.
Jessica's treatment with Dr. Jordan spanned a period of over 3 years, current to 2007. During that time Dr. Jordan worked with her on emotional difficulties that affected her mood; these included low self-esteem and sadness. She found that Jessica was loyal to her father and wanting strong emotional connectedness to him. At the same time, Jessica was enthusiastic about her life with her mom. Dr. Jordan stated, "Vermont is a good place for Jesse. The low key-she's never going to be able to do the Greenwich girl thing-Why not let her be in an environment where she is more comfortable socially and academically."
Since February 2007, Dr. Karen Hotchkiss (MD) has been treating Jessica to address the ADHD issues. She sees her monthly to monitor her medication. She reports the medication has made Jessica feel better about her school work (which has improved) but Jessica feels like it is cheating. Jessica has also told her that her father said to her that if she were to move to Vermont he would cry and this was a concern for Jessica.
The school Jessica likely would attend in Vermont is the Maple Street School, Winhall, Vermont, not having schools of its own, tuitions its resident children into schools in the area, paying a stipend which the parent supplements if it is insufficient to cover the school cost. Maple Street School is a small, private school, to which the plaintiff applied the children. They were both accepted; however, at this time Jessica was accepted to repeat 3rd grade. At trial, the school headmaster stated that the placement decision would be re-examined since Jess is now half-way through 4th grade. The school does not accept students unless it is satisfied they will succeed there. The school has a significantly smaller class size than the Greenwich school, an attribute that all the involved educators believe will benefit both Jessica and Patrick. Patrick's major support has focused on need for speech pathology work. While his language/speech productivity is within normal limits, support has been provided. He also has had reading remediation. In Greenwich, this has been provided both in and outside the classroom.
While the Maple Street School does not offer services in-house, such as speech pathologists and school psychologists, they are available in the immediate community. The school co-operates with community service providers. Tutoring is provided both informally in the classroom; formally after the school day by direct arrangement with the teachers. None of the educational challenges of either child individually or combined has been considered significant enough for either child to be deemed to have "504" certified disabilities. After examining the educational opportunities in Greenwich and at Winhall, Vermont, the guardian ad litem concluded that both can adequately address the needs of Jessica and Patrick.
The statutory criteria for a parent wishing to relocate children's residence is found in Conn. Gen. Stat. § 46b-56d:
(a) In any proceeding before the Superior Court arising after the entry of a judgment awarding custody of a minor child and involving the relocation of either parent with the child, where such relocation would have a significant impact on an existing parenting plan, the relocating parent shall have the burden of proving, by a preponderance of the evidence, that (1) the relocation is for a legitimate purpose, (2) the proposed location is reasonable in light of that purpose, and (3) the relocation is in the best interests of the child.
(b) In determining whether to approve the relocation of the child under subsection (a) of this section, the court shall consider, but such consideration shall not be limited to: (1) each party's reasons for seeking or opposing the relocation (2) the quality of the relationships between the child and each parent; (3) the impact of its relocation or the quantity and the quality of the child's future contact with the nonrelocating parent; (4) the degree to which the relocating parent's and the child's life may be enhanced economically, emotionally and educationally by the relocation; and (5) the feasibility of preserving the relationship between the nonrelocating parent and the child though suitable visitation arrangements.
General Statutes § 46b-56, provides inter alia "(a) In any controversy before the Superior Court . . . the court may at any time make or modify any proper order regarding . . . custody and visitation . . ." That section further provides that in "modifying any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the child . . ." General Statutes §§ 46b-56(b). "[Our Supreme Court] has limited the broad discretion given the trial court to modify custody orders under General Statutes §§ 46b-56 by requiring that modification of a custody award 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." (Internal quotation marks omitted.) Walshon v. Walshon, 42 Conn.App. 651, 657, 681 A.2d 376 (1996); Kelly v. Kelly, 54 Conn.App. 50, p. 55, 732 A.2d 808 (1999). "Before a trial court may modify a custody order, it must find that there has been a material change in circumstance since the prior order of the court, but the ultimate test is the best interests of the child." Brubeck v. Burnes-Brubeck, 42 Conn.App. 583, 585, 680 A.2d 327 (1996); Stewart v. Stewart, 177 Conn. 401, 407-08, 418 A.2d 62 (1979).
"It is well settled in this state that, in deciding custody or visitation issues, a court must always be guided by what is in the best interests of the child. See Schmitt v. Schmitt, 241 Conn. 767, 777, 699 A.2d 134 (1997); Knock v. Knock, 224 Conn. 776, 789, 621 A.2d 267 (1993); Yontef v. Yontef, 185 Conn. 275, 282, 440 A.2d 899 (1981). General Statutes §§ 46b-56(b) provides in part that "[i]n making or modifying any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the child . . ." Moreover, "[t]his court has consistently held in matters involving child custody, and, by implication, visitation rights, that while the rights, wishes and desires of the parents must be considered it is nevertheless the ultimate welfare of the child which must control the decision of the court." (Internal quotation marks omitted.) Ridgeway v. Ridgeway, 180 Conn. 533, 541, 429 A.2d 801 (1980); see also Gallo v. Gallo, 184 Conn. 36, 43, 440 A.2d 782 (1981) (in matters regarding visitation orders, "the court considers the rights and wishes of the parents . . . but . . . must ultimately be controlled by the welfare of the particular child"). Ireland v. Ireland, 246 Conn. 413, 419-20, 717 A.2d 413 (1998).
"We recognize the difficult issues that relocation cases present. The interests of the custodial parent who wishes to begin a new life in a new location are in conflict with those of the noncustodial parent who may have a strong desire to maintain regular contact with the child. At the heart of the dispute is the child, whose best interests must always be the court's paramount concern. Those interests do not necessarily coincide, however, with those of one or both parents." Id. at 421.
"Our society is an increasingly mobile one. Largely "[b]ecause of the instability and unpredictability of the employment market . . . the high incidence of remarriage, and the high incidence of second divorces, repeated, separate moves by each parent are coming to represent the norm." J. Wallerstein T. Tanke, supra, 30 Fam.L.Q. 310. Our family law should recognize that reality. Therefore, to serve the best interests of a child in a single-parent family unit, the custodial parent should be permitted to pursue, within reasonable limits, opportunities that could lead to a better life for the parent as well as the child." Id. at 426-27.
1. Purpose(s) for Relocation
The plaintiff desires to relocate to Winhall, Vermont for several reasons: (1) to have the support emotionally of the plaintiff's mother (who is moving closer nearby) and community contacts in the home of her family of origin; (b) to be able to try to secure her economic future by real estate development of farm acreage around her primary parenting schedule; and (c) she is a happier, emotionally satisfied person in that community, whose values and life style provide her comfort and is affirming to her values.
The court finds that the plaintiff's desire to relocate the children with her is for legitimate purposes. The plaintiff has been consistent in her desire to relocate for the above stated reasons all of which are legitimate reasons. The plaintiff's happiness at her farm in Vermont is clear and she articulated it well both in detail and purpose in her testimony. Indeed, the findings of Dr. Oppenheim affirm that this move to Vermont is a reasonable one for her in light of the emotional ties to her place of origin, contacts, and "array of opportunities for her there."
The initial challenges to this move have focused more on the secondary factor the plaintiff must prove: the location is reasonable in light of the reasons for moving.
The plaintiff desires to secure her economic future by developing her farm acreage into a residential subdivision. She has initiated this project with test holes, a preliminary subdivision layout and discussion with both town officials and engineers. The next steps in the project require her to procure either financing or a backer/partner to invest in the development's infrastructure and first construction efforts. These plans and the cost analysis, attendant to them are presently vague at best.
The court must, however, determine whether the location for relocation is reasonable in light of the reasons. The plaintiff's desire for economic independence is reasonable. The desire to develop building lots and homes on them is reasonable and the engineered site plan shows that the first three lots can be developed without the attendant significant cost of road construction. Further, an examination of the elevations shows all of the lots to be at moderate slopes, which make them more attractive for development because costs attendant with steep slopes are absent. The court cannot determine anything further from the site plan. Therefore, the plaintiff has proven to this stage of preparation her plan to develop real estate for financial gain is reasonable.
The defendant takes the position that (1) the plan may not be profitable and (2) could be accomplished without the plaintiff moving there. The plaintiff asserts the need to be present in Vermont for the work. While the defendant disdains this notion, he suggests the way to accommodate it is to grant the relief granted by the defendant (essentially an equal time parenting arrangement).
The parties each enjoy work that allows them to be self-employed masters of their own destiny. Inherent in these initiatives by both parties are uncertainties; this does not mean that they are not legitimate forms of employment. The plaintiff's work as a developer is grounded in a sound reality and based upon an engineered created site plan. It is a reasonable source of employment/work for the plaintiff.
The plaintiff approves of the values inherent in a rural community. They make her happy, and, she believes it is an appropriate value structure for the children, which is discussed later. For her, a small community of 700 is attractive. The natural outdoors for the plaintiff is a significant part of her lifestyle: it is where she was raised. The court finds the location reasonable in light of the plaintiff's desire to locate to such a situated community.
The plaintiff's happiness in this location and its effect on the children was barely considered by Dr. Oppenheim. She found it to have been romanticized by the plaintiff. The plaintiff, however, lived for many years in the same area and has returned to it regularly over the last few years. Nothing in the evidence suggests the plaintiff does not understand all that is involved in the move. Indeed, the court is concerned that the locale was rejected out of hand by the evaluator, evidenced by her comment to the plaintiff upon alighting from her car when she arrived there, "what do people do here?" At best, the comment displayed a marked ignorance of rural life. At worst, it betrayed a dismissive bias against rural life.
The court, having found that the plaintiff has satisfied her burden of proof as to the first two factors in the relocation statute, must go on to consider whether the plaintiff has proven that this move is in the best interests of the two children. This standard has been developed and considered for many years by the court in case law. Recently, our legislature codified many of these developed factors at Conn. Gen. Stat. § 46b-56(a). This codification was accomplished in 2005, before the legislature passed the current relocation legislation ( P.A. 06-168, s. 1). Therefore, the legislature was presumed in using the "best interests" language in 2006 to be mindful of the addition of subsection (c) to 46b-56 in 2005 ( P.A. 05-258, s. 3). The court will, as appropriate, consider these factors as it considers the statutorily-mandated factors of § 46b-56d(b).
2. Each party's reason for seeking or opposing the relocation.
The court finds that the plaintiff's reasons for seeking the relocation are as stated above. While they are not reasons for relocation, she also sees as positive by-products of the relocation the ability to spend more time with some of her relatives with second homes in the area, and, with her husband's parents who are residents of Quebec, where he was raised. The court does not find that she seeks to relocate to get away from the defendant. Speaking about times that he physically assaulted her, she expressed this feeling. Her statements have not been consistent and are not an inappropriate response to that behavior.
The threads of email from the plaintiff show that she has been consistent in her attempts to keep him informed of the children's needs and activities, and, that she has gone out of her way to assist him in having the children with him (consistent with safe travel) when he has been on vacations. This is not the conduct of someone simply seeking to get away from the defendant.
The defendant's reasons for opposing the relocation are multiple: he is concerned that it will adversely affect his relationship with the children and specifically, that he will not be involved in the "dailiness" of their lives; that as a child whose mother relocated him he knows the pain involved and does not want it visited on his relationship with his children; and, that their two children will lose their closeness with his reconstituted family and, specifically, their little sister Katarina.
"Dailiness" is a newly coined word which appears to mean the daily ordinariness of every day life. It is not found in established dictionaries but is defined in some on line references. In any case, all involved in this matter used the term in a way to indicate that the definition adopted here is the meaning embraced in these proceedings.
As to the first reason, the court finds it a reasonable basis for the defendant to oppose relocation. Currently, the defendant enjoys mid-week contact with his children through a dinner one night and an overnight the other night. He also speaks with them daily on the telephone. If the children relocate, the defendant's mid-week physical contact with the children will be gone during the school year, unless he goes to Vermont to see them there. This is not an unrealistic option for him, at least on occasion. The defendant is self-employed and has significant flexibility in his schedule, he says, by design. He performs approximately 60% of his work by phone or email/internet which can be accomplished in the locale of Vermont where the children will live. The relationship the children will have with their sister is likely to remain intact. They delight in each other but are of such an age difference that they do not engage meaningfully in the same age-appropriate activities (except as an entire family). What will be lost is the same "dailiness" raised by the defendant. This will be preserved with the sisters on vacations and in the summer.
The last reason for the defendant's opposition to the relocation is strong and deep-seeded. The defendant continues to have personal upset over his move to Idaho at age 10 with his mother. The court cannot even begin to examine this motivation. While it is clearly very real and tangible to the defendant, the court notes in fact, it is such a categorically different relocation, based on geography and travel times alone, that the objective reasonableness of this reaction by the defendant cannot be examined by this court. Suffice to say that the court accepts this motivation for opposition by the defendant to be real, palpable and appropriate for him. The court finds that it is such a strongly held feeling by him that it has prevented him from reasonably considering any aspects of the plaintiff's proposed move. He rejects any move that will alter his drive time by more than 20 minutes as interfering with his parenting time. This position is so extreme that it must be rooted in his personal hurt.
3. The quality of the relationships between the child and each parent.
The children's relationship, both of them, with their mother is strong, healthy and comfortable. She has been a steady presence for them. She is much more aware of their respective health needs than their father.
The evaluator noted that in her two visits with the children with the mother (CT and VT) that "the family interacted with each other in a casual mode, each appearing to have individual autonomy while reconnecting at various times and in various activities." From this and other evidence, this court concludes that the children are secure in the mother's home and comfortable exploring and growing in their autonomy. At the same time the family enjoys its time together. The plaintiff herself and the home she has created enhance the relationship each child has with her. They are strong and comfortable relationships.
The children's father has a good relationship with each of them. They are well attached. Both children are eager for their time with their father and speak only positively of him. The defendant is aware of the day to day needs of the children not only because of his continuing contact with them but also because the plaintiff takes great effort to ensure it.
The plaintiff communicates to the defendant every achievement and every obstacle the children face and the communication is in almost every instance immediate. She keeps him informed of every doctor and caregiver appointment (and their results) and every school and extra curricular activity event. Her emails to him are open and inviting of his participation in virtually every instance. All of these efforts have helped to insure that the defendant is an "in touch" parent. In fact, these communications by the plaintiff have been a significant part of strengthening the relationship between the defendant and the children, guaranteeing he experiences the dailiness of their life.
The defendant's relationship with his children is also helped by his daily phone calls with them. On days he does not see them he keeps in close contact with them this way as well. His relationship with his children is strong.
4. The impact of the relocation on the quantity and quality of the child's future contact with the nonrelocating parent.
The drive from the defendant's home in Greenwich to the plaintiff's home in Vermont is approximately 3 hours, 47 minutes as measured by MapQuest. It is just under 200 miles. Certainly this will not allow the children to have mid-week physical contact with their father at his home when school is in session. Given his work schedule and his access to his in-laws' second home in Vermont, about 20 minutes away, it is not unrealistic to think that mid-week contact will occasionally occur. However, even if that housing or alternative housing is utilized, notwithstanding the defendant's confirmation that he will do whatever he can to preserve his relationship with his children, there is nothing to ensure that the mid-week contact regularly available now will continue. Therefore, the court must consider the impact of the relocation on the quality and quantities of the children's contact with their father without this midweek school year contact.
It is this consideration that caused the evaluator, Dr. Oppenheim, to conclude that relocation is not in the child's best interest. The court concludes that this opinion should be disregarded. Notwithstanding her testimony in which she read the standard for the court from the statute, Dr. Oppenheim, in her own report, relies on the wrong standard: "No child should have to endure the pain to which these children are already host; to be challenged to choose between parents, or to be predisposed too long for an absentee parent without compelling and unavoidable circumstances [emphasis added]." The plaintiff need not prove the circumstances for her move are unavoidable. C.G.S. § 46b-56d. The court concludes that this improper view of the burden of the plaintiff clouded the evaluator's ability to consider the totality of circumstances of this family.
The court notes that in unilaterally deciding to take on the question of whether a move to Fairfield would be appropriate, the evaluator concluded that "Christie [the mother] and the children [should] remain living in Greenwich so that they can continue to enjoy a consistent and continuous relationship with their father and baby sister and to avail themselves to the resources they now use." It would seem that this evaluator took the view that if the present circumstances work well for the children they should never be altered. This too is not the standard; instead it is an important consideration as part of evaluating what the best interests of the children are, consistent with the statutory standard. The examiner inappropriately rejected considerations to be weighed that involved benefits available to the plaintiff upon the relocation. Finally, this court finds inappropriate the evaluator's wholesale rejection of the opinion of Jessica's therapist who treated her for over three years.
In some instances, the evaluator utilized the opinion of Dr. Jordan to support her own conclusion. In referring to her interview with Dr. Jordan, Dr. Oppenheim notes in her report that Jessica craves her father's attention. This is partial support for maintaining the closeness of the relationship by denying relocation. Yet, what she acknowledged on cross examination that Dr. Jordan went on to explain that this craving is because Jessica does not feel she has enough of her father's attention now.
Dr. Hotchkiss spoke with Dr. Oppenheim as well. The evaluator noted that the defendant had not come with Jessica to any appointments. Yet, the evaluator did not mention in her report that his father had promised to meet Jessica at an appointment with Dr. Hotchkiss and failed to show up; the child was very disappointed. His reason was he drove to the wrong town because he did not read the email from the plaintiff closely. The record of exhibits is replete with such instances of him obviously inattentively skimming the information regarding the children provided to him by the plaintiff. The court views that this failure has not only resulted in disappointment to Jessica but also communication tensions between these parents. This is solely his responsibility.
The evaluator also opined the relocation was not in the children's best interest because they do well in their current school with its support structure. This opinion does not even attempt to balance the consideration of the value of the Maple Street School for the children, including its smaller class size and one on one work of teachers with children. The headmaster of the Maple Street School made clear the children would not have been accepted if they did not believe each could thrive and succeed at the school. When Jessica was accepted for a repeat of 3rd grade, she had not had the academic benefit of her medication and progress she has shown in the fourth grade. This is a factor that is important as well.
The court has examined the plaintiff's recommendation for a parenting plan upon relocation. This court concludes that while a loss will occur from the loss of contact 7 out of 14 days as the defendant explains his current schedule, a schedule can be imposed by this court that will ensure that over the year, the quantity of contact between the defendant and the children will be substantial and protective of the strength of their relationship. The quality of such a schedule will provide substantial time that the children will be with their father. It will provide for longer stretches than their mid-week conduct. It cannot, however, replace the loss that will occur in regard to the mid-week dinners and overnights. The utilization of the telephone and webcams will mildly ameliorate the loss. Similarly, the defendant's ability to be present in Vermont midweek can help in a more substantial way to at least minimize this loss.
The children's guardian ad litem opposes the relocation because she is concerned about the defendant being able to maintain his relationship with the children. She opined that if the children are with their father every other weekend and he was able to get to Vermont on a frequent basis the relationship would be preserved. This reason for opposition has been in large part a concern because while the defendant says he will do whatever he needs to in preservation of the relationship, he has not always been available to his children and he has not followed through for them when he should. The guardian ad litem noted that his conduct has improved in this regard since he received notice of relocation.
This court concludes as to this factor, that where there will still be substantial qualitative time with the children and, over a year, at least comparable if not more quantitative time, that the additional contact that will be available to the defendant to exercise in his discretion (around the commitment of his 40% of his work time in New York) is sufficient to protect the present good quality of the father's contact and relationship with the children.
5. The degree to which the relocating parent's and the child's life may be enhanced economically, emotionally and educationally by the relocation.
There is little disagreement that the plaintiff's life will be emotionally enhanced by a move to Winhall, Vermont. The court finds it is so. The economic enhancement to her life at this location is largely embodied in the potential of the real estate development discussed earlier. While she has not explored real estate investment in the Greenwich area, her conclusion that the purchase of comparable real estate would be prohibitive is rational and reasonable based on the value of the parties' own real estate that has been described in these proceedings. Her job skills in the trades have not been utilized in employment for many years. She is presently able to earn funds as a ski instructor, which is available on a daily basis in the cold months in Vermont but not in Connecticut. She is also a trained paramedic. She estimates that as full-time work this would produce income of about $35,000 — $40,000 per year. Her mortgage at Winhall which she shares with her husband is $643,358.40. Her mortgage in Greenwich that is similarly shared is over $1.3 million dollars. While that property is sold, to replace it with a comparable home would require, once again, a mortgage twice the size of the Vermont mortgage.
The defendant provided evidence at trial that the resources of the plaintiff's husband, Douglas MacKenzie, are sufficient to support the plaintiff in a very comfortable life style. While this may be so, the court will not require the plaintiff to become dependent on that, when she seeks to become financially independent and secure with her own resources. That would include her own obligation to contribute to the support of the children. Her husband has no obligation to support these two children. Murray v. Murray, 65 Conn.App. 990, 961, 781 A.2d 511 (2001). She is a woman with a high school education who sees her own hard work as a pathway to her own well being.
The court concludes that the plaintiff's emotional and economic prospects are brighter in Winhall, Vermont than in Greenwich, Connecticut. No evidence was adduced as to her intent to seek educational opportunities in either location.
The parties' daughter, Jessica, has felt enormous emotional tension over this issue of relocation. She does not want to disappoint either parent. Until recently, she has felt responsible for the decision. Dr. Hotchkiss reports that she has moved somewhat from this and more comfortably says, now, that is up to the court. This is progress from the enormity of pressure she has felt. While Patrick has been exposed to similar pressures, he has been more immune to the stress of it. While the plaintiff does not actively discuss relocation with her, Jessica knows her mother wants to move to Vermont; she does not want her mother unhappy. On the other hand, Jessica's father has told her that if she moves to Vermont he will cry. The court finds this statement inappropriate for Jessica — from the evidence, it is clear this child is torn and conflicted. She need not be burdened with the knowledge her father will cry. What she needs, as her therapist reports is his affection.
It is vitally important that this decision and the responsibility for it belong to the court, indeed, this judge. Truly, it is a weighty decision for anyone. That said, it is not Jessica or Patrick's decision. Their respective right to their own happiness and unconditional love and support from each parent is paramount. This will, I am confident, be communicated to these two children in a clear and unequivocal manner. Jessica has told some adults involved in this case that she wants to move to Vermont. For this court to factor that expressed opinion into this decision will only serve to contribute to the child's internal conflict. Further, in any case, the expressed opinion of a 9-year-old that has had to struggle as Jessica has is of highly conjectural and such limited value that this court should, and does, not weight it as part of the probative evidence. Likewise, the opinion of Patrick, 6 years old, is of no probative value.
The children are both happy with life in Vermont. Dr. Jordan has observed that Jessica misreads social clues in her Greenwich community. The children have play dates in both locations. Their mother, who is their primary caretaker, is happier in Vermont.
"The notion that relocation might be in the best interests of the child, in large part because such a move would also be in the best interests of the custodial parent, finds support in the writings of legal scholars. `Prohibiting a move by the custodial parent may force that parent to choose between custody of his or her child and opportunities that may benefit the family unit, including the child as well as the parent. Imposing this choice can be severely detrimental to the psychological and economic well-being of the parent over many years. It also has the potential for burdening the parent-child relationship for many years, regardless of the choice the parent makes. A parent who relinquishes a significant life-enhancing opportunity in order to maintain custody of a child may become distraught and depressed . . .' The child may well experience diminished parenting as a result of the parent's discouragement and suffering . . . The child may suffer great anguish and blame himself or herself for having stood in the way of the parent." J. Wallerstein T. Tanke, "To Move or Not to Move: Psychological and Legal Considerations in the Relocation of Children Following Divorce," 30 Fam.L.Q. 305, 315 (1996). Ireland, op.cit. at 423 (1998).
As the primary caretaker she is more approving of the community values in Vermont. This can only benefit the children there.
There are sporting activities for the children in both locations. Educationally, while the children are well served in Greenwich, the court agrees with the guardian ad litem that their needs are likely to be well served as well in the greater Winhall, Vermont community.
The court relies on Dr. Jordan's opinion that Jessica will thrive in Vermont. She has historically struggled in Connecticut. The court finds that her life will specifically be enhanced socially (emotionally) in Vermont. Both children are expected to do well (in every other respect presented in the evidence) in Vermont, at least as well as they do in Connecticut.
6. The feasibility of preserving the relationship between the nonrelocating parent and the children through suitable visitation arrangements.
As discussed earlier, the evaluator opined that the relocation was not in Jessica and Patrick's best interest because the "dailiness" of their contact with their father will be lost. The evaluator testified that she did not consider, at all, what appropriate parenting relationships would help preserve the childrens' relationship with their father. She has failed to consider a necessary facet of the relocation issue. This is not an inconsequential omission. For instance, for all the psychological testing she performed on the children, none of it appears to shed light on either child's ability to maintain emotional connections over time, nor did her clinical observations shed light on this. She opined without foundation that neither child should go more than five (5) days without seeing the other parent. The children each summer and vacation go more than five (5) days without seeing a parent with no apparent adverse result.
It is further noted that the evaluator administered no psychological testing to either parent. Her reason was that the evaluation was to determine if it is in the best interest of the children to relocate, not the parent. This reasoning once again displays a lack of understanding of the many considerations that go into the relocation decision. On the topic of testing, the evaluator utilized the Perception-of-relationship Test ("PORT"), which has not been subjected to peer review. While no party sought a Porter hearing, State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), this court rejects the PORT testing and the observations the evaluator made from its use. Dr. Openheim acknowledges the controversial nature of the PORT test but still found it useful to produce information from the children. The test has been characterized as unreliable, at least in part because of the absolute subjective interpretation by the evaluator without standardized norms attached.
The plaintiff has proposed a schedule of parenting for the defendant that would include every other weekend, long weekends during the school year, school vacation weeks and five weeks in the summer. The time as counted by her results in contact with the children over a year which is greater than he currently has under the present parenting schedule. It is certainly not less and does not take in account additional time when the defendant may see the children in Vermont.
The court finds the plaintiff is committed to preserving the children's relationship with their father. They have displayed photos of him and photo albums of his new family with the children in their bedrooms. The evidence is replete with efforts by the plaintiff to keep the defendant informed about the children and offering flexibility to accommodate his schedule on multiple occasions. Even when a child is sick she did not assert the children should stay home; instead, she informed the defendant of the child's health and the medications needed if he were to pick up the child.
The guardian ad litem questions the defendant's commitment to his children as a priority and therefore worries he will not follow through for the children if they move. This concern is not idle. The defendant has put his own interests first, perhaps most exquisitely displayed by his decision on the final day of soccer season to watch Patrick's final game but skip Jessica's final game so that he, himself, could play tennis. The defendant shows no insight as to how his behavior in this instance contributed to Jessica's craving of attention from him. His tennis game surely was not more important.
Two Christmas vacations in a row, the defendant has gone to Barbados several days ahead of Jessica and Patrick. It was the defendant's plan for the children to fly down without a parent. The plaintiff flew the children to Barbados and then returned home. In the other year, she flew them to Miami where the defendant flew to meet them. These instances contribute to a vision of a father who loves his children and loves his own separate pleasures. Repeatedly, his priorities for himself have won out.
The parenting time for the defendant provided in these orders will allow for sufficient contact between the children and their father. When the defendant testified he said he was opposing the relocation because "this is about boundaries — its about asserting my role in the family." He went on to explain that it was "a platform to assert my rights and role as a father." He further said that the best interest of the children is "to let them know that their Dad is 100% to have a 100% role as a father."
During the several years these parties have been separated, the defendant has shown very little initiative in contacting the children's providers and teachers in the community. The defendant acknowledges that he is late to this 100% commitment to his children. He finds the many emails he has received over the year from the plaintiff excessive — had she not kept him so well informed, it would have been excusable at one point for him to suggest a tutor when Jessica had already been working with a tutor for a quite a while, and he had been so informed.
The defendant's criticism of the plaintiff as a parent is that he feels left out by her as a parent. A review of the many emails in evidence shows this to be patently ridiculous. His response to them has been sparse, and when present, terse. Had he engaged in some better communication himself, perhaps he would have internalized more of the information he was provided about the children and, then, not felt so left out. He claims the plaintiff makes unilateral decisions with the children and leaves him out. He believes she wants to move to Vermont to remove him. The emails betray this assertion. They are replete with efforts to get the defendant to respond to suggestions. Only when he has been nonresponsive, at all, has the plaintiff suggested then that his silence must mean acquiescence. His view on these events is not consistent with the written evidence.
The notable exception to this is the application of the children to the Maple Street School discussed below.
The court is satisfied that if the defendant does not put tennis, skiing in Aspen and his other adult pursuits ahead of the parent's time that he will be ordered that the children will have substantial and quality contact with their father to ensure the preservation of a close relationship with him.
This court finds the plaintiff, not withstanding the defendant's assertions to the contrary, has consistently encouraged his relationship with the children. She has sought to include him and consult him in all major, and many relatively minor decisions about the children. It would seem that the notable exception to these conclusions is the plaintiff's decision to apply the children and have them participate in the application process — to the Maple Street School. She first sought the defendant's agreement. Knowing he opposed relocation, she couched the request for admission in the event relocation was permitted. When the defendant steadfastly said no, the plaintiff applied them anyway; when they were accepted, she unilaterally signed enrollment agreements for both children, without the defendant's approval, and in regard to it all, without his knowledge. This is troubling. The plaintiff should have sought court permission for the application. This matter is the subject of the defendant's Motion for Contempt (#303) dated August 13, 2007. The motion is granted. The court finds the defendant has proven that the plaintiff's conduct was a clear violation of an unambiguous joint legal custody order that was not impossible to comply with. Accordingly, the court finds the plaintiff in contempt. Relief will be found in the orders below.
In the context of the relocation issue the court must determine if this conduct is demonstrative of an effort to exclude or marginalize the defendant, as he claims. What the court perceives is it was an act of desperation and determination by the plaintiff after she had received the evaluator's initial report which recommended against the evaluation, and was critical of the Manchester Elementary School and very complimentary of the Maple Street School. The plaintiff was bound and determined, it would appear, to align her fortunes as well as she could, i.e., if the children were actually accepted to the Maple Street School, perhaps the evaluator would change her recommendation.
The court finds that this contemptuous behavior, while not excusable or excused, is not a part of a pattern of seeking to exclude the defendant from custodial decision-making or an effort to resist court orders or usurp the power of the court. Hall v. Hall, 186 Conn. 118, 124, 439 A.2d 447 (1982).
The defendant has also filed a motion for contempt (#287), dated November 17, 2006, claiming that the plaintiff has denied him all of his six floating days of parenting time. The court finds that the defendant has failed to sustain his burden of proof on this motion. The motion is denied.
The defendant has also filed a motion for contempt (#307) dated August 31, 2007 claiming the plaintiff in contempt of the summer vacation parenting provisions. The court finds that the defendant has failed to sustain his burden of proof on this motion. The motion is denied.
The court denies both of the defendant's motion for sanctions which are a part of two different motions filed on November 12, 2007.
In light of the orders herein the defendant's motion for restraining order is denied as moot.
The question of whether to permit a parent to relocate children is one of the most difficult decisions we make in family court. "Usually, in relocation cases, there is no good or right answer, especially for the child." Brennan v. Brennan, 85 Conn.App. 172, 180, 857 A.2d 927 (2004). The court grants the plaintiff's motion for modification (#288), dated December 4, 2006, finding that the plaintiff has proven a substantial change of circumstances and that it is in the best interests of these children to relocate with their mother to Winhall, Vermont. In light of these findings, the court also finds it is in the best interest of both of these children to modify the parenting schedule of the defendant with his children to foster their relationship.
The court orders that the plaintiff may permanently relocate with the parties' two children, Jessica and Patrick out of Connecticut to Winhall, Vermont during the Christmas 2007 vacation, as more specifically provided herein; accordingly, she may enroll them in school in Vermont immediately following the Christmas vacation break. The parties' judgment is opened and modified consistent with these orders, and it is further modified at paragraph three and it is ordered that the defendant shall have reasonable, flexible and reasonable parenting time as specified here: (1) alternating weekends from Friday after school (or Thursday after school if there is no school on Friday) to Sunday at 4 p.m.; if there is no school on Monday then this time shall extend to Monday evening at 4 p.m. The defendant shall pick up the children for the commencement of his weekend parenting time at their home in Vermont, or the school, and the plaintiff shall pick them up at the end of the weekend at the defendant's home in Greenwich. Every fourth trip the plaintiff shall drive the children both ways. If the defendant is staying in Vermont with the children for the weekend, in which case he shall deliver them to school on Monday morning in a timely manner (or Tuesday to school if there is no school on Monday); (2) upon 48 hours prior notice to the plaintiff, the defendant shall have parenting time during the school year mid-week from after school to the next day at school two midweek nights each week; he shall take the children to all scheduled activities and appointments during this parenting time; (3) the parties shall continue to alternate the Thanksgiving holiday; the Christmas vacation shall be divided in half and the parties shall alternate the two halves (the time of the switch off is 12 noon) — in 2007, the defendant shall have the first half of the Christmas vacation; the Martin Luther King Day, Memorial Day and Columbus Day weekends and the Spring vacation shall be the defendant's every year; the February vacation shall be alternated with the defendant having even-numbered years. In the event the children attend a school with only a March break (or just one vacation between Christmas vacation and the end of the school year), if the vacation is one week long it shall be the defendant's every year; if it is two weeks long then the parties shall each take one week, alternating which yearly; (4) each parent shall be entitled to access to the children on their birthdays and Halloween; (5) notwithstanding the foregoing, the defendant shall have Father's Day every year and the plaintiff shall have Mother's Day every year-the access times for these shall commence at 5 p.m. the night before and shall continue to 7 p.m. on Mother's Day or Father's Day, as the case may be; and (6) the defendant shall have five weeks of the summer vacation with the children; however, only two of those weeks shall be consecutive until the summer of 2010 (when Patrick will be at least nine years old) at which time he may have two different periods of two consecutive weeks with the children. The plaintiff shall deliver and pick up the children from the defendant's home for all of his summer vacation, April vacation and February vacation and Christmas vacation parenting time. The plaintiff shall have two one-week vacations with the children each summer vacation. The first choice and notice requirements as well as the preferences for the Huggy Bear tennis tournament and Fourth of July weekend in the court judgment are not modified. All weeks of the summer not covered by this vacation schedule will be on the school year schedule. The daily telephone contact provided for in paragraph 7 of the judgment shall include utilization of a webcam; each parent shall purchase their own webcam for the children's use.
The defendant also filed a motion for modification (#311), dated October 25, 2007, seeking to modify the existing parenting schedule to expand his parenting. In light of the court granting the plaintiff's motion for modification, the relief in that motion is inconsistent with the relief sought in the defendant's motion. The defendant's motion is denied.
The attorney for the minor children and the guardian ad litem have each, respectively, filed affidavits of fees claimed based on time spent working on this matter and costs incurred. There was no objection by any party to these claims. The court, having examined the financial affidavits of both parties, and the evidence regarding the same, has considered the statutory and case law criteria and, thus, determined that the guardian ad litem and attorney for the minor children fees should be paid equally by the parties. The guardian ad litem claims a balance of fees due of $16,003.10 through November 26, 2007. Her gross fees are $37,275.60. The plaintiff has paid her $12,500 and the defendant has paid her $8,772.50. The fees are approved. The plaintiff is ordered to pay $6,137.80 to the guardian ad litem within 30 days and the defendant is ordered to pay $9,865.30 to the guardian ad litem within 30 days. The attorney for the children claims fees and costs of $37,300.00. She has been paid $10,000, apparently from her exhibit, all by the plaintiff. Accordingly, the defendant shall pay to Attorney Whelan $18,650.00 within 30 days and the plaintiff shall pay Attorney Whelan $8,650.00 within 30 days.
The plaintiff and defendant are ordered to refrain from informing the children the court orders individually but to tell them together with the children's guardian and attorney present.
These orders are effective immediately and are not stayed for 20 days. Yontef v. Yontef, 185 Conn. 275, 291-92, 440 A.2d 899 (1982). The custody/parenting and relocation orders shall not be stayed and shall remain in effect if an appeal is taken pursuant to Connecticut Practice Book § 61-1(b). Id., 293-94.