Opinion
No. FA04-020 00 06 S
July 22, 2005
MEMORANDUM OF DECISION
This matter was tried before the Regional Family Trial Docket, on a referral from the Stamford Judicial District, on July 11th, 12th and 14th, 2005. The Plaintiff and Defendant testified and numerous exhibits were introduced. The court has considered all of the credible evidence presented to it and carefully considered the respective criteria for orders of custody, visitation and access, child support, health insurance, payment of children's medical expenses, alimony, property settlement, division of debt and award of counsel fees. The court makes the following findings of facts and orders:
FACTS:
The parties were married on October 7th, 2001 in Waterville, Maine. The court finds that it has jurisdiction over the marriage. One of the parties has lived in the State of Connecticut for more than one year prior to bringing this action. The following minor children have been born to the parties since the date of marriage:
Benjamin, date of birth, April 23, 2002; and
William, date of birth, March 31, 2004
No other minor children have been born to the Wife since the date of the marriage. The parties are not receiving state assistance. The court finds that the marriage between the parties has broken down irretrievably and there is no reasonable prospect of reconciliation.
The Wife is 35 years old and in good health. In 2001, Ms. Gordon had gastric bypass surgery and lost approximately 180 pounds since her surgery. She is currently taking Effexor and iron pills for a bypass induced iron deficiency. CT Page 11090-cj
Ms. Gordon attended the University of Maine at Orono, Westchester Community College from 1993-1994, and Manhattanville College from 1997-2000. She completed a five-year program at Manhattanville receiving a BA in English Literature and a Masters degree in Elementary Education. She still owes $32-34,000 for her education. She has a provisional teaching certificate in the states of Connecticut, New York and Maine. The wife was unsure what steps she needed to take to get permanent certification in any state.
Prior to her current job, Ms. Gordon was employed as a nanny and earned $200-$400.00 per week. She also worked as a substitute teacher at Greenwich Catholic School, was site director for a YMCA after-school program, and was head 4-year-old teacher for the YMCA Rainbow Daycare Center.
In 2000, she was hired as a second grade teacher in the Stamford School system. However, after 1 week she was informed she was a long-term substitute teacher. At that point she returned to Greenwich Catholic as a permanent substitute teacher for the 2000-2001 school year. She was a full-time teacher at Greenwich Catholic 2001-2002 earning approximately $20,000-$21,000 gross income per year.
In August 2002, she became a nanny/tutor for George Alexakos, working 15-20 hours per week from approximately 3:00 p.m. to 7:00 p.m. Mr. Gordon returned home from his job at 1:00 p.m. and this job eliminated the need to place Benjamin in day care. This job terminated in May 2004 just prior to Ms. Gordon's relocation to Maine.
Ms. Gordon is currently employed as a Resource Room teacher at McMahon Elementary School in Lewiston, Maine. She earned $927.00 net biweekly for the 2004-2005 school year (Exhibits 8 30). She has signed a contract for the 2005-2006 school year with a gross salary of $31,900.00.
Mr. Gordon graduated from New Rochelle High School and received an Associates degree from Westchester Business Institute in Computer Systems Management. The Town of Greenwich employs him as a warehouse worker at approximately $41,000.00 gross income per year. He lost previous jobs at Swiss Ray and United Refrigeration due to corporate downsizing.
During Benjamin's 2-year medical exam, it was discovered that he had a speech delay and occupational therapy needs. Benjamin has been evaluated by and attended the Birth-to-Three program in Connecticut and Maine. Benjamin's evaluation in the Maine Birth to Three programs diagnosed a CT Page 11090-ck sensory integration disorder; while in Maine, he received 2 days of occupational therapy and 3 days of speech therapy.
During the early pendente lite period, the apartment the family lived in was sold and the wife had to relocate by the end of June 2004. At approximately the same time, the wife lost her nanny/tutor job allegedly due to the husband's failure to provide afternoon care for the children. In late June 2004, the couple was involved in an incident of domestic violence the result of which was a dual arrest. Ms. Gordon testified that as a result she relocated to Maine at the end of June 2004 and has lived and worked there since that time.
The testimony from the wife at trial made it clear that her family was searching for an apartment in Maine prior to the incident of domestic violence. The wife made little effort to find housing in Connecticut. She testified she found one apartment in an undesirable neighborhood. However, Mrs. Gordon's testimony at trial indicated that the marital home was located in a low-income neighborhood and a dead body was found nearby during the family's tenancy. The court finds that the wife made an inadequate effort to find suitable housing in Connecticut before she left the state with the minor children.
One reason Mrs. Gordon gave for her relocation to Maine was the availability of her family to assist her with the children. Again, the evidence introduced at trial contradicted this. The wife's parents live in Florida for the bulk of the school year, her sister is attending college and her brother lives too far away to provide consistent help with the children.
On July 23, 2004, the Court (Tierney, J.) rendered a Judgment on defendant's June 28, 2004 Motion for Contempt (Motion #126). In a transcript of that hearing, the Court stated that "[t]he court finds as a matter of fact that the evidence has shown that the automatic order number five, neither party shall permanently remove the minor child or children from the state of Connecticut without the written consent of the other or the order of the court, has been violated by Mrs. Gordon . . . I have the representation by counsel made in the presence of Mrs. Gordon that the children will remain in the state of Connecticut." Thereafter, Mrs. Gordon took the minor children to Maine where she lived and worked.
At trial, Ms. Gordon testified that she had diligently searched for employment in Connecticut both on her own and through the Fairfield Teacher's Agency. She claims she has been unable to find employment in Connecticut The court notes that Ms. Gordon's current employment in Lewiston, Maine, and prior employment at Greenwich Catholic, were the CT Page 11090-cl result of substitute teaching prior to the offer of full-time employment. Additionally, Exhibits 21 23 demonstrate that Ms. Gordon was seeking employment in Lewiston and Gardner, Maine, from early June 2004 prior to the incident of domestic violence she claimed was part of her motivation for relocation.
Additionally, Ms. Gordon must take 24 credits in Special Education within 2 years to retain her position in Maine.
Finally, after the Family Relations Evaluation was released in February 2005, recommending a return to Connecticut at the end of the current school year, the plaintiff signed a contract to teach in Maine for the 2005-2006 school year on May 31, 2005 (Exhibit 1). The contract states that she may resign with 60 day's notice except that she may not resign during the month of August.
The court is not convinced the wife has used her best efforts to find employment in Connecticut. She testified that her current job is the result of substitute teaching in Maine. She is not available to substitute teach in Connecticut while living in Maine. Her provisional teaching certification in Connecticut will expire on August 15, 2007 (Exhibit 60).
FAULT:
Ms. Gordon testified that her husband was having an affair with a coworker named Rene when she was pregnant with her youngest child. The couple separated in mid-March prior to the birth of William on March 31st, 2004. As proof, she testified that Mr. Gordon made many telephone calls to Rene and his car was seen parked outside her home one afternoon. Ms. Gordon offered no evidence of an extramarital affair other than her own testimony. Mr. Gordon denied this claim and testified that he still loved his wife. He testified he was simply friendly with a co-worker and his car was parked outside Rene's home because he attended a birthday party for Rene's adult special needs daughter. The court finds Mr. Gordon's testimony more persuasive than the wife's and finds no fault on the part of either party to this action.
CUSTODY CONSIDERATIONS:
Connecticut Gen. Stat. Section 46b-56(b)(1) provides that "In making any order with respect to custody or visitation the court shall be guided by the best interests of the child, giving consideration to the wishes of the child if the child is of sufficient age and capable of forming an intelligent preference." In the case before the court, Benjamin, age 3, CT Page 11090-cm and William, age 1, are unable to express their wishes through their Guardian Ad Litem. The GAL has observed both parents with the children and concluded that mother has been the primary parent to the children, especially William, who left the state at the age of 3 months. However, the Guardian Ad Litem found both parents to have sufficient parenting skills to be the custodial parent.
While the court's discretion with regard to custody determinations has not been limited, certain criteria have been enumerated by statute to guide or focus the court's consideration. Connecticut General statutes section 46b-56(b) provides that in making or modifying any order with respect to custody or visitation the court is to be guided by the best interests of the child, giving consideration to the wishes of the child if the child is of sufficient age and capable of forming an intelligent preference. In making the initial order, the court is also authorized to take into consideration the causes for dissolution of the marriage or legal separation if such causes are relevant in a determination of the best interests of the child . . . This differs substantially from the criteria enumerated for purposes of child support, alimony and property distribution determinations . . . While the statute establishes a very general standard, more specific guidance is frequently useful. A number of individual factors that may be relevant have been identified by the courts. That development has necessarily been somewhat piecemeal as various cases are brought to the attention of an appellate court. However, on one occasion, a trial judge summarized these factors, listing twenty-two specific criteria employed in making his decision and the legal authorities relating to each of those factors. ( Rudolewicz v. Rudolewicz, No. 470812 (1986), Hartford-New Britain at New Britain). The decision is one by the trial court so it is not binding on other trial courts considering similar issues, although it has been cited by other trial judges. In addition, it is not published in any of the official reports, making reference to it somewhat cumbersome. Nevertheless, the criteria listed provide an excellent overview of the law and are worthy of review.
1. Parenting skills. ( Cannetta v. Cannetta, 796 Conn. 10, 490 A.2d 996 [1985]).
2. Each parent's relationship and psychological or emotional ties with the child. ( Cappetta v. Cappetta 796 Conn. 10, 490 A.2d 996 [1985)); ( Seymour v. Seymour, 180 Conn. 705, 433 A.2d 1005 [1980)).
3. Parental character with respect to willful disobedience of court orders. ( Hall v. Hall, 186 Conn. 718, CT Page 11090-cn 439 A.2d 447 (1982); Stewart v. Stewart, 177 Conn. 401, 418 A.2d 62 (1979); Simons v. Simons, 172 Conn. 314, 374 A.2d 1004 [1977)).
4. Willingness to facilitate visitation with the other parent. ( Seymour v. Seymour, 180 Conn. 705, 433 A.2d 1005 [1980)).
5. Past behavior as it relates to parenting ability. ( Seymour v. Seymour 180 Conn. 705, 433 A.2d 1005 (1980); Yontef v. Yontef, 185 Conn. 275, 440 A.2d 899 [1981]).
6. Recommendations in the Family Relations Report. ( Yontef v. Yontef, 185 Conn. 275, 440 A.2d 899 [1981]).
7. Advise of the attorney for the child. (Yontef v. Yontef, 185 Conn. 275, 440 A.2d 899 [1981]).
8. Credibility. (Yontef v. Yontef, 785 Conn. 275, 440 A.2d 899 [1981]).
9. Either parent's manipulative or coercive behavior through efforts to involve the child in the marital dispute. ( Yontef v. Yontef, 185 Conn. 275, 440 A.2d 899 [1987]).
10. The parent's behavior and its effect on the child(ren). ( Yontef v. Yontef, 785 Conn. 275, 440 A.2d 899 [1981]).
11. Continuity and stability of environment. ( Cappetta v. Cappetta, 196 Conn. 70, 490 A.2d. 996 [1985]).
12. The flexibility of each parent to best serve the psychological development and growth of the child. ( Seymour v. Seymour, 180 Conn. 705, 433 A.2d 1005 [1980]).
13. Which parent is more willing and able to address medical and educational problems of the child and to take appropriate steps to have them treated and corrected. ( Faria v. Faria, 38 Conn.Sup. 37, 456 A.2d 125 [1982]).
CT Page 11090-co
14. A stable and familiar environment with love and attention from grandparents. ( Ridgeway v. Ridgeway, 180 Conn. 533, 429 A.2d 801 [1980]).
15. The psychological instability of one parent posing a threat to the child(ren)'s well being. ( Ridgeway v. Ridgeway, 180 Conn. 533, 429 A.2d 801 [1980]).
16. The recommendation that one parent immediately commence in-patient treatment ( Ridgeway v. Ridgeway, 180 Conn. 533, 429 A.2d 801 [1980]).
17. Visitation having an adverse effect on the child at the time. ( Ridgeway v. Ridgeway, 180 Conn. 533, 429 A.2d 801 [1980]).
18. Remarriage of either parent. ( Trunik v. Trunik, 197 Conn. 287, 426 A.2d 274 [1979]).
19. Parental sexual activity. ( Trunik v. Trunik, 179 Conn. 287, 426 A.2d 274 [1979]).
20. Consistency in parenting and life style, insofar as these factors might affect the child's growth, development and well-being. ( Seymour v. Seymour, 180 Conn. 705, 433 A.2d 1005 [1980]).
21. The time each parent would be able to devote to the child on a day-to-day basis. ( Seymour v. Seymour, 180 Conn. 705, 433 A.2d 1005 [1980]).
22. Untidy condition of the home, alcoholism, leaving the home unattended, and emotional problems. ( Seymour v. Seymour 180 Conn. 705, 433 A.2d 1005 [1980]). ( Simons v. Simons, 172 Conn. 341, 374 A.2d 1040 [1977]).
23. The effects of spousal abuse within the family. ( Knock v. Knock, 224 Conn. 776, 621 A.2d 267 [1993]).
Not all of the above factors will be relevant in every case. This summary is found in: Rutkin, Family Law and Practice, Connecticut Practice Series, 2nd edition, West CT Page 11090-cp Publishing, Volume 8, pages 521 through 524, Section 42.24, (2000).
In fashioning a parenting plan, the court has taken into consideration the fact that the parties agree that the wife will return to the state of Connecticut. They dispute when she will return. The wife wants to wait until the 2005-2006 school year is complete while the husband wants the wife and children to return to Connecticut immediately; the attorney for the minor children recommends that she return by January 1, 2006.
The court has taken into consideration the Family Relations Counselor's report and testimony, the testimony and credibility of the parties and the testimony and recommendation of the Guardian Ad Litem. While the evaluation recognized both parents as loving and intelligent, the court has focused on the strengths each parent has to offer in meeting the needs of the children.
The court finds that both of these parties parented well together prior to the beginning of the legal process. Mr. and Ms. Gordon coordinated their work schedules around each other's availability to care for Benjamin, after deciding that day care costs would be unreasonable in light of their earnings. The court finds that both parties have sufficient parenting skills to be custodial parents, based on their prior history and pendente lite parenting arrangement since December 2004.
Mr. Gordon's schedule allows him to be free from 1:30 p.m. each day to care for the children. Historically, he took care of Benjamin while Ms. Gordon worked as a nanny/tutor. If Ms. Gordon is successful in obtaining a teaching position, she too will have afternoons as well as the other school vacations available to care for the children.
Mr. William Wilensky, of the Family Relations Office, concluded in his report that "[t]he mother does not seem to perceive the paternal role to be of paramount importance to the children's development." (p. 4)
Mr. Wilensky also stated that "Children's attachments CT Page 11090-cq develop within the first few months of a child's life." He went on to say that "This initial attachment is critical for all future stages of development and is essential for the development of their basic trust and security." Mr. Wilensky recommended that the children return to Connecticut at the end of the 2004-2005 school year. The Court finds Mr. Wilensky's testimony and report persuasive. If the father and sons do not bond now, it will be more difficult for them to do so in the future.
Ms. Gordon testified that her parents provided her with the funds for the first and last month's rent, as well as the security deposit, for her apartment in Maine. However, the court notes that the same money could have been utilized to secure housing for the mother and children in Connecticut.
The court sees no benefit to the minor children in delaying their return to the state of Connecticut. Benjamin has been enrolled in the Birth-to-Three program and has received services in two states. In a Maine Occupational Therapy Discharge Summary dated January 3, 2005 (Exhibit C), the therapist notes that Benjamin has made negligible progress due to sporadic attendance and never scheduled his second weekly therapy appointments due to mother's work schedule. Mother made arrangements for OT services to be provided at daycare at some point after January 2005. However, the failure of the child to receive crucial services from September 2004 — January 2005 demonstrates that the mother's family is not providing the assistance in Maine she would have the court believe they provide. The inconsistencies in services and/or missing one week of services every month under the current parenting plan is unacceptable.
Ms. Gordon is Caucasian and Mr. Gordon is of African-American decent. Exhibit F is an ethnic diversity analysis comparing school systems in Maine and Connecticut. It is clear that there are fewer African-Americans attending public schools in the Maine school districts analyzed than in the Connecticut districts. Mr. Gordon testified that on his visits to Maine he was most often the only African-American. CT Page 11090-cr
In determining the child support award, the court has also taken into consideration that the parents are being awarded close to a shared parenting agreement. The court finds that for this shared parenting agreement to work, it is vital that the parties have equal resources and income to provide an equivalent home and/or environment for the minor children. The court finds here that the presumptive current support amount, based on each party's actual and presumptive gross and net income at the time of trial, calculated as required by the guidelines, would require the mother to pay to the father the sum of $147.00 per week in child support.
ORDERS
After considering all of the statutory criteria set forth in General Statute's § 46b-84 as to support of a minor child, § 46b-215a-1 et seq., Regs. Conn. State Agencies, as to child support, § 46b-56 as to custody and care of minor children, § 46b-62 as to counsel fees, § 46b-66a, as to conveyance of real property, § 46b-81, as to assignment of property and transfer of title, § 46b-82, as to the award of alimony, § 46b-84, as to medical insurance for minor child, § 46b-56c as to Educational Support Orders together with applicable case law and the evidence presented here, the court hereby enters the following orders:
1. DISSOLUTION OF MARRIAGE:
A decree dissolving the marriage on the grounds of irretrievable breakdown shall enter on July 22, 2005.
2. CUSTODY/VISITATION:
(a) The parties shall have joint legal custody and shared physical custody of their minor children, Benjamin Gordon, born April 23, 2002 and William Gordon, born March 31, 2004.
The father shall have primary physical custody for school purposes unless both parents are living in the same school district.
Commencing July 30th, 2005, and until such time as the CT Page 11090-cs wife relocates to Connecticut or the children are in a full-time Kindergarten program, the children shall spend time with each parent on a four-(4) week rotating schedule. The children shall spend the first three — consecutive week period with the father and the fourth week with the mother in the 4-week rotation. Pick-up and drop-offs will take place at a half-way point between the parties' residences and shall be made on Saturdays. In addition, the children shall spend non-holiday school vacation weeks (February and April vacations) with the mother until her relocation to Connecticut. Thereafter, the parties shall alternate the winter and spring school break with father having his choice the first year the wife is in Connecticut.
(b) Each parent shall be entitled to speak with the children every day between 6:00 p.m. and 7:00 p.m. when the children are residing with the other parent.
(c) Each parent has the right to visit with the children on the Saturdays or Sundays that the children are residing with the other parent, from 12 noon until 5 p.m., at the other parent's residence or another mutually satisfactory location. The visiting parent shall travel to the children and the children shall not be required to make more than 1 round trip to Maine from Connecticut each month.
(d) Each parent shall ensure that the children are enrolled in age appropriate, pre-school programs, including speech and occupational therapy for Benjamin Gordon (and possibly William as well) consistent with the birth-to-three and other evaluations obtained by the parents for Benjamin.
(e) Each parent shall immediately execute whatever legal documents are necessary to ensure each parent has access to all medical and educational records of the children.
(f) When the Mother returns to the State of Connecticut in January or June 2006, to a location within 20 miles of the Father's residence, visitation shall be as follows:
i. Father shall have parenting time with the children CT Page 11090-ct from 1:30 p.m. (or dismissal from school/camp as the children enter school full-time) until the mother arrives home from work on Mondays;
ii. Father shall have weekly overnight parenting time with the children Tuesday from 1:30 p.m. or after school/daycare until drop-off at school/daycare Thursday morning;
iii. Father shall have parenting time every other weekend from Friday pick-up at school/daycare until drop-off at school/daycare Monday morning.
(g) Neither party shall permanently remove the minor children from the state of Connecticut without prior court approval. If either parent intends to relocate from Connecticut he/she shall notify the other parent in writing 120 days before the anticipated move. Until further order of the court, the state of Connecticut shall have continuing jurisdiction over this matter.
3. CHILD SUPPORT:
Child support and child-care contributions shall be made consistent with the Connecticut Child Support Guidelines. Until the mother returns to the state of Connecticut, she shall pay child support in the amount of $147.00 per week. The mother shall also be responsible for the payment of 31% of the children's unreimbursed medical and daycare expenses. Prior to the mother's relocation to Connecticut the father shall be responsible for 69% of the mother's day care expenses while the children are in Maine during the school year. Child support shall be recomputed once the mother returns to the state of Connecticut and her salary and employment information is available.
4. ALIMONY:
Neither party shall pay the other alimony.
5. MEDICAL INSURANCE MINOR CHILDREN:
The Father shall continue to include the children on his medical insurance and shall continue to execute whatever documents are necessary to ensure that said medical coverage continues uninterrupted.
6. HOLIDAY VISITATION: CT Page 11090-cu
The parents shall alternate yearly all major holidays including Martin Luther King Day (father in 2006); Presidents' Day (mother in 2006); Easter (father in 2006); Memorial Day (mother in 2006); July 4th (father in 2006); Labor Day (father in 2005); Thanksgiving (mother in 2005); Christmas Eve and Christmas Day until noon shall be spent with father in 2005, mother shall have the remainder of the Christmas school vacation returning the children by 2:00 p.m. the Sunday before school starts at the half way meeting point); and New Year's Day (mother in 2006). The Mother shall have the children for Mother's Day weekend (from Friday pick-up after school/daycare/camp until Monday morning drop-off at school/daycare/camp). The mother shall have the children on Mother's birthday. The Father will have the children for Father's Day weekend (from Friday pick-up after school/daycare/camp until Monday morning drop-off at school/daycare/camp) and the Father's birthday.7. CHILDREN'S BIRTHDAY CELEBRATIONS:
The parties will share the children's birthdays with the mother planning and paying for Benjamin's party in even-numbered years and the father planning and paying for William's party in even-numbered years. In odd-numbered years, the mother shall pay for and plan William's party and the father shall plan and pay for Benjamin's party. Both parents shall be invited to attend the birthday party for both children each year with 2 weeks advance notice of the date and time.
8. POST-MAJORITY EDUCATION:
The court shall retain jurisdiction over post-majority educational support issues, which may arise regarding the minor children pursuant to 46(b)-56c.
9. TAX EXEMPTIONS:
The federal tax dependency exemptions for the minor children, as well as any tax credits for the children, shall be shared so that the Father shall be entitled to the federal tax dependency exemption for Benjamin Gordon. The Mother shall be entitled to the federal tax dependency exemption for William Gordon as long as her child support and medical expense reimbursements are current by December 31st of each year.
10. LIFE INSURANCE:
The parties shall each obtain and carry life insurance in the maximum amount as provided by their respective employers with a cost not to exceed $250.00 per year. The minor children shall be named the primary CT Page 11090-cv and irrevocable beneficiaries thereon until the parties no longer have an obligation for child support of post-majority educational expenses pursuant to Conn. Gen. Stat. Section 46b-56c.
11. ATTORNEYS FEES:
The husband and the wife shall each be solely liable for their own legal fees.
The wife shall be responsible for 1/3 and the husband 2/3 of the total payment of the Guardian Ad Litem's fees. The court finds the hourly rate of the GAL of $300.00 per hour to be reasonable under all the facts and circumstances of the case. The parents shall make written arrangements for payment with the GAL within 45 days of the date of this decision.
12. RETIREMENT ASSETS:
The husband shall transfer to the wife ½ the value of his 401k plan minus ½ the value of the wife's Maine State Retirement Fund as of the date of dissolution via rollover or QDRO. The cost of the QDRO, if required shall be borne equally by the parties and the transfer shall take place within 60 days of the date of judgment.
13. MOTOR VEHICLES:
The husband shall keep as his sole property the 2001 Ford Windstar he is currently driving. He shall hold the wife harmless and indemnified from the loan, property taxes, insurance and registration for the vehicle.
The wife shall keep as her sole property the 2005 Chevrolet Aveo she is currently driving. She shall hold the husband harmless and indemnified from the loan, property taxes, insurance and registration for the vehicle.
The wife shall pay the husband the sum of $100.00 within 45 days of the date of judgment, which she represents to be ½ the sale proceeds for the 1993 Saturn she sold.
14. BANK ACCOUNTS:
The husband and wife shall each keep their own checking and savings accounts listed on their Financial Affidavits as their sole property.
15. DEBTS: CT Page 11090-cw
The husband and wife shall be solely liable for the debts listed on their individual Financial Affidavits.By the Court,
Holly Abery-Wetstone
Presiding Judge CT Page 11090-cx