Opinion
HHDFA104049767
07-17-2017
James E. Kyle v. Carolyn Kyle
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO MODIFY POSTJUDGMENT (#217); DEFENDANT'S MOTION FOR CONTEMPT POSTJUDGMENT (#218); PLAINTIFF'S MOTION TO MODIFY POSTJUDGMENT (#224)
Gerard I. Adelman, Judge Trial Referee.
The court heard the above referenced postjudgment motions in a one-day hearing on Wednesday, June 28, 2017. Both parties were represented by competent counsel for said hearing. The defendant testified, called the plaintiff as her witness, and also called a friend to testify in support of her motion. The defendant called the Guardian ad litem (GAL), as well. The plaintiff was the only witness called in support of his position and motions. Additionally, the defendant offered nine (9) items as full exhibits. The plaintiff offered one (1) full exhibit, and the court entered two (2) items as court exhibits.
These parties have a long history of litigation. A brief summary of that litigation is helpful in understanding the present situation. The parties married on St. Valentine's Day, 2008. Twin boys, C.K. and A.K., were born to the couple almost exactly one year later. Approximately six weeks after the birth of the children, the father filed his writ, summons and complaint seeking dissolution of the marriage. The return of service, the complaint, and motions for pendente lite orders were filed with the court on April 13, 2010, with a return date of May 4, 2010. On the same day as the papers were filed, the parties appeared and sought to have a pendente lite agreement approved by the court establishing joint legal custody of the twin boys. (Docket item #102.) A few months later, the parties filed a joint request for reconciliation, which was granted. (Docket item #103.) Unfortunately, that attempt to resolve their differences was relatively short lived, and the defendant filed for pendente lite custody, child support, and other relief. (Docket item #104.) A few days later, the plaintiff filed an ex parte custody motion. (Docket item #110.) From that point on there was a series of motions filed by each party alleging an entire panoply of complaints relating to parental access, reimbursement of expenses, etc. To complicate the situation, the maternal aunt of the children filed to intervene in the case (Docket item #119) early in 2011. Both parties agreed that the maternal aunt may intervene and further agreed to give her specific access rights to the children, including one week of vacation with the twins once they reach the age of seven. (Docket item #131.)
Initials are being used to identify the children to protect their privacy.
In mid-July of 2011, the marriage of the parties was dissolved in accordance with an agreement of the parties. (Docket item #150.) That dissolution judgment ordered joint legal custody, with primary residence with the defendant, and granted to the plaintiff " reasonable, flexible and liberal" visitation. The agreement also continued to provide specific access to the children for the maternal aunt. The cooperative spirit as presented by the rather full and comprehensive agreement of the parties in July lasted for about seven months, when the postjudgment litigation began with the defendant's motion to modify, filed on February 5, 2013. (Docket item #154.) This phase of the case continued with numerous motions by both parties, some agreements, a new GAL, and a variety of court orders until May 4, 2016. On that date, the court had scheduled a status conference and a GAL report back. The court adopted as its orders the recommendations of the GAL (Docket item #214) which included participation in the Families In Transition program (FIT) and established a new parenting access schedule. The maternal aunt withdrew her motion for access to the boys. The GAL's participation was terminated as well; the case was deemed to be resolved.
The court file contains the transcript of a rather lengthy and complete canvass of the parties. (Docket item #150.60.)
Apparently, that determination was incorrect, and in July 2016-a little over two months later-the defendant filed an ex parte motion (Docket item #216), a motion to modify custody postjudgment (Docket item #217) and two motions for contempt postjudgment (Docket items #218 and #219). The GAL was reappointed, and the plaintiff filed his own motion to modify postjudgment. (Docket item #224.)
Defendant's contempt motion #219 relates to a claim of unpaid reimbursements. The court heard very limited evidence on this motion as the defendant was to argue this motion and not her attorney. At the end of the hearing, the court ordered each side to compile their documentation and a summary of same and to file that no later than close of business on Friday, July 14, 2017. The court will examine the documentation and either make a ruling or schedule a further hearing on this one issue. The defendant also had filed a motion seeking a psychological evaluation of both parties (Docket item #225), but she indicated at the start of the hearing that she was not going forward with that motion. That motion was marked off by the court.
The essential conflict between these parties has not changed from the very beginning of the case. They are very different people with very different parenting styles. In addition, they do not really trust the other party's ability to parent their children. The plaintiff believes that the defendant is overly concerned-perhaps even obsessed-with what she perceives to be medical issues with the two boys. It is his opinion that she has pushed for a variety of services-medical, psychological and therapeutic-to be provided to the boys that are not needed. Finally, he alleges that she attempts to micro-manage his parenting time. The defendant, on the other hand, believes that the plaintiff does not take seriously the various medical and developmental issues from which the children suffer and that he is very lax in maintaining a proper diet for the children. She alleges that he relies on his wife and the maternal aunt to care for the children and that he is being pushed to seek more time with the children by those parties. Finally she points to the fact that the plaintiff himself asked for a reduction in his parental access time with the children in the past.
The boys are currently receiving a number of different services. C.K. had been in therapy at Central Community Guidance Center (CCGC) since age three with Mary Machall, who has since left that agency and now is in private practice. Said counseling is not currently in place. A.K. has also had counseling at CCGC with a different therapist. Although the plaintiff has seriously questioned the need for counseling, he is not opposed to the children receiving it; his issue was with it taking place during his limited access to the children. C.K. has occupational therapy weekly on Mondays, which was ordered by the children's pediatrician, Dr. Robyn Pemberton, for strength and endurance. Both boys have physical therapy on Tuesdays. Both boys participate in Tae Kwan Do, although there is some disagreement as to whether they both enjoy that activity. C.K. also has speech therapy for what has been described as a slight lisp.
C.K. received a neuropsychological evaluation in the spring of 2016 through Easterseals Capital Region & Eastern Connecticut. The work was done by Howard M. Goldfischer, Psy.D. The evaluation was done after a referral by Sarah Schlegal, M.D., of the Developmental-Behavioral Clinic at Connecticut Children's Medical Center (CCMC), because of concern by the defendant that C.K. might be autistic. Dr. Goldfischer's evaluation is a significant piece of evidence in this matter. The plaintiff and the GAL have been critical of the evaluation, noting that it did not follow the normal protocol for such work. The input from the child's school was extremely limited, and the plaintiff was not involved in the evaluation at all. The doctor relied on the mother's observations and his own testing instruments. The doctor, himself, notes the unusual results. He opined: " Diagnostically, this case presents significant challenges as [C.K.] generally performed within normal limits across most formal measures. In contrast, his mother reported clinically significant concerns across many domains, which were not corroborated by his testing. Additionally, the school did not report the same concerns, either." He goes on to note that the school refused to participate fully and, as a result, it makes it difficult to fully rule out certain possible diagnoses.
As a confidential medical record, the court, sua sponte, seals the evaluation that is in the court file as Court Exhibit " B."
As he noted, the child's performance in school does not conform or correlate to the defendant's concerns. The school psychologist reported to the GAL, as late as June 19, 2017, that C.K. was above grade level in reading and math with no behavioral issues. C.K. excelled in second grade, exhibiting curiosity and excitement about learning new things. He also operates above grade level in some subjects and with no concerns in terms of behavior or academics.
The children's pediatrician, who had referred many of the extra services, described the defendant as a " worry wort" to the GAL. Several Planning and Placement Team (PPT) meetings were held by the school at the insistence of the defendant, seeking special services for the children. None resulted in any such services being offered, as the children were not demonstrating any difficulties in their academics or with their behavior in school.
The conflict between the parties over the medical and developmental needs of the children has been exacerbated by the defendant's efforts to cut off the plaintiff's ability to access the children's medical providers. This required the specific intervention of the GAL and the plaintiff's attorney before it was made clear to the doctors that the parties shared legal custody and the plaintiff had every right to speak to them and know the diagnosis and treatment relating to his children.
Giving the defendant every benefit of the doubt, there was a very old pendente lite order making her the gate-keeper to medical providers. That order dated back to October 2010 (Docket item #113) and was certainly negated by the dissolution judgment.
The defendant alleges that the plaintiff does not communicate with her in a timely manner, but admits that he does not have an active telephone number for her and has not had telephone access to her for two years. His only method of contacting her is via e-mail. Of course, the plaintiff is not completely innocent in this matter, either. The defendant testified that the reason the plaintiff refused to allow him telephone access is because in past years he left abusive and allegedly threatening messages.
The plaintiff is certainly not without some issues as well. He is clearly dismissive of the defendant's concerns about the children's health. Given the fact that e-mail is their only method of communication, he is being petty by checking his e-mail only once daily. He has also complained frequently about using his very limited parenting time to bring the boys to activities and services. While he does have a very limited schedule at the present time, it is a parent's job to put the children's needs first and that includes transporting them to their activities and, of course, medical related appointments.
The defendant's postjudgment contempt motion (Docket item #218) relates to the order that each party provide vacation dates by May 1st of each year and that an itinerary be provided for overnight travel. The defendant alleges that the itinerary she received last summer was not provided by May 1st and that it was not sufficiently detailed. " A civil contempt can involve a wilful failure to comply with a then outstanding court order . . . A finding of contempt depends upon the facts and circumstances surrounding it." (Citations omitted; internal quotation marks omitted.) Marcil v. Marcil, 4 Conn.App. 403, 405, 494 A.2d 620 (1985). " The contempt remedy is particularly harsh . . . and may be founded solely upon some clear and express direction of the court . . . One cannot be placed in contempt for failure to read the court's mind." (Internal quotation marks omitted.) Eldridge v. Eldridge, supra, 244 Conn. 523, 529, 710 A.2d 757 (1998); Blaydes v. Blaydes, 187 Conn. 464, 467, 446 A.2d 825 (1982). " Contempt is committed when a person violates an order of court which requires that person in specific and definite language to do or refrain from doing an act or series of acts." (Emphasis in original.) In re Leah S., 284 Conn. 685, 695, 935 A.2d 1021 (2007). A contempt remedy is particularly harsh and it may be founded solely upon some clear and expressed direction of the court. Id. " Noncompliance alone will not support a judgment of contempt." Bowers v. Bowers, 61 Conn.App. 75, 81, 762 A.2d 515 (2000), appeal dismissed, 258 Conn. 710, 784 A.2d 889 (2001). In addition, a finding of contempt must be made based on clear and convincing evidence. Brody v. Brody, 315 Conn. 300, 318-19, 105 A.3d 887 (2015).
The evidence indicated that in the original divorce decree, the parties were obligated to provide the address or telephone number to the other parent for out-of-state travel, overnight travel or vacations. The postjudgment agreement reached on May 4, 2016 (Docket item #214), required each party to provide the other with their preferred vacation weeks by May 1st. The language in the same provision relating to the itinerary for said travel does not necessarily relate to the May 1st date.
It is well established that a separation agreement, incorporated by reference into a judgment of dissolution, " is to be regarded and construed as a contract." Issler v. Issler, 250 Conn. 226, 235, 737 A.2d 383 (1999). " Accordingly, our review of a trial court's interpretation of a separation agreement " is guided by the general principles governing the construction of contracts." (Internal quotation marks omitted.) Id. " A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction." (Internal quotation marks omitted.) Id. If a contract is unambiguous within its four corners, " the determination of what the parties intended by their contractual commitments is a question of law." (Internal quotation marks omitted.) Id. " When the language of a contract is ambiguous, [however] the determination of the parties' intent is a question of fact, and the trial court's interpretation is subject to reversal on appeal only if it is clearly erroneous." (Internal quotation marks omitted.) Honulik v. Greenwich, 293 Conn. 698, 711, 980 A.2d 880 (2009).
The language as to the date and the itinerary is clearly ambiguous. A common sense reading of the language would likely lead one to not associate the itinerary deadline with the selection of vacation weeks, as it could be difficult to have the specific details for a vacation worked out that early. Also, providing a detailed itinerary so early would not serve any meaningful custodial purpose. The plaintiff's testimony was that details were provided as they became available and in advance of the travel.
In this specific instance, the travel consisted mostly of day trips or single overnights. There was no travel to a distant location or to a location that might be potentially of concern to the other parent.
The main issue before the court is twofold: whether these parents continue to operate under a joint legal custody order and whether the parenting schedule should be adjusted? The defendant is seeking sole legal custody, alleging that the parties cannot co-parent despite participating in two different counseling programs designed to improve their co-parenting skills. If the court decides to continue joint legal custody, as an alternative she is asking for final decision making authority. The plaintiff wants to maintain the joint legal custody order.
In devising its orders, the court must look to the criteria of the various statutes dealing with custody of minor children. General Statutes § 46b-56(b) directs the court to enter custody orders " that serve the best interests of the child and provide the child with active and consistent involvement of both parents commensurate with their abilities and interests." That statute goes on to enumerate sixteen separate factors for the court to consider in devising such orders. Some of those factors that seem most pertinent to this case would include " the capacity and the disposition of the parents to understand and meet the needs of the child . . . the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent . . . any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute . . . [and] the mental . . . health of all individuals involved . . ." General Statutes § 46b-56(c).
The " best interest of the child" standard is the ultimate basis of a court's custody decision. Knock v. Knock, 224 Conn. 776, 789, 621 A.2d 267 (1993). The gender of the parents is not considered by the court, and there is no automatic presumption favoring the mother as custodial parent. Presutti v. Presutti, 181 Conn. 622, 627-28, 436 A.2d 299 (1980); Hurtado v. Hurtado, 14 Conn.App. 296, 301-02, 541 A.2d 873 (1988). Either parent can be awarded custody, and the issue " is not which parent was the better custodian in the past but which is the better custodian now." Yontef v. Yontef, 185 Conn. 275, 283, 440 A.2d 899 (1981).
Public policy, as expressed most clearly in General Statutes § 46b-56a, favors an order of joint custody whenever such an order is requested by the parents and would be in the best interests of the child. These parents have always agreed in the past to exercise joint legal custody, but that has not been a success for either the parents or, more importantly, for the children. " [Section 46b-56a], read as a whole, reflects a legislative belief that joint custody cannot work unless both parties are united in its purposes." Emerick v. Emerick, 5 Conn.App. 649, 658, 502 A.2d 933 (1985), cert. denied, 200 Conn. 804, 510 A.2d 192 (1986). Is this a case where the best interests of the children would dictate a change in the custody arrangements?
The GAL has recommended to the court that the joint legal custody orders remain in place. She also recommended that the parties participate in the Intensive Conflict Resolution program offered by Family Relations. The defendant testified that she could not participate in the program if it extended past the summer vacation months due to employment issues; the plaintiff was willing to participate. It is clear that neither party truly believes that the program would be beneficial and the court agrees. This is a case in which the orders would work best for the children if the parents engaged in parallel parenting rather than true co-parenting.
Parallel parenting is a situation in which the orders allow each parent to parent the children independently of the other parent as much as is practical. It works to minimize joint decision-making situations where possible. The goal of parallel parenting is to give the children a stable and predictable environment with each parent, which, while each may be different, the children are removed from the conflict of the decision making process. Parallel parenting does not necessarily require a shared parenting plan. Parallel parenting is an arrangement in which divorced parents are able to co-parent by means of disengaging from each other, and having limited direct contact, in situations where they have demonstrated that they are unable to communicate with each other in a respectful manner. For intractable high conflict families, parallel parenting provides an opportunity for co-parenting, and although parents remain disengaged from each other, they remain fully connected to their children. Within such an arrangement, parents may assume decision-making responsibility in different domains (such as one parent being responsible for medical decisions and the other for education).
In this case, one of the major differences between the parents involves their views on the general health of their two sons. The defendant appears to be overly concerned with the children's health and development, while the plaintiff is perhaps a little too unconcerned. It would appear that at the present time the plaintiff's view might be best for the two children given their good academic performance and the lack of behavior issues in school. A division of authority with a structured decision making protocol might work best to ensure that both parents can have their concerns considered without a long and contentious discussion of alternatives. It appears clear that if such an arrangement is not successful, the next step, and perhaps only alternative, would be to enter a sole legal custody order under which one parent would have total control of all decision making. That point has not been reached yet, but the parties should be aware of that possibility as they attempt to function successfully under these new orders.
The court, having carefully considered carefully the testimony of the witnesses, including their demeanor while on the witness stand and the items presented as evidence during the trial, in accordance with the statutory criteria as interpreted by our case law, makes the following findings of fact:
A. The parties have had a history of repeated conflicts over parenting issues;
B. Past efforts at co-parenting counseling have been unsuccessful;
C. The defendant's concerns over the medical and educational needs of the two minor children have not been entirely supported by the children's academic records or the medical providers;
D. Joint legal custody remains the best arrangement for the two minor children despite the disagreement of the parties;
E. A strict decision making protocol would be in the best interests of the minor children;
F. A division of final decision making authority would be in the best interests of the minor children;
G. The plaintiff's notification of vacation plans did not violate the provisions of the existing orders;
H. A clarification of the custody related orders would be in the best interests of the two minor children; and
I. Issues related to unreimbursed expenses shall be handled by the court separately and may be the subject of a further hearing.
In light of the above referenced findings of fact, the court hereby ORDERS:
I. The parties are to continue to maintain joint legal custody of the two minor children.
II. The children shall reside primarily with the defendant;
A. The plaintiff shall have the children in his care as follows:
1. Every Wednesday from after school until 8 P.M.;
2. Every Friday from after school until 8 P.M.;
3. Every other weekend from Friday after school until return to school on the following Monday;
4. In the event that there is no school on any exchange day, the plaintiff will get the children at 4 P.M. and return the children at 8 P.M.;
5. The plaintiff shall be responsible for all transportation connected with his parental access times.
B. Vacations and Holidays:
1. During the summer vacation the parties shall alternate weeks exchanging the children at 8 P.M. on Sundays;
2. For the summer of 2017 only, the plaintiff's first week of vacation with the minor children shall be commencing Sunday, July 23rd and he shall have the weeks commencing August 6th and August 20th;
3. In all future years, the plaintiff's alternating weeks shall commence with the first Sunday after school ends for that academic year;
4. All other school vacations shall follow the normal weekly schedule;
5. During any vacation period, if the custodial parent is planning to travel out of state with the minor children for at least one (1) overnight period then that parent will provide to the other parent:
a. The designated location planned;
b. Any and all travel arrangements including all appropriate flight numbers and times, as well as the names and locations of any accommodations to be used during said trip;
c. A schedule of when the travel will begin and end and all intermediate stops;
d. A working phone number for access during said vacation;
e. Said information to be provided as soon as possible, but it must be provided at least one (1) hour prior to the start of the trip. Said information may be amended or added to during the trip if appropriate.
6. Holidays:
a. New Year's Day with the plaintiff from Noon to 8 P.M. in all even years and with the defendant in all odd years;
b. Easter Day shall be with the defendant in all even years and with the plaintiff in all odd years;
c. Thanksgiving shall be with the plaintiff in all even years and with the defendant in all odd years;
d. Christmas Eve shall be with the defendant in all even years and with the plaintiff in all odd years. This period shall run from 3 P.M. on December 24th until Noon on December 25th;
e. Christmas Day shall be with the plaintiff in all even years and with the defendant in all odd years. This period shall run from Noon on December 25th until 8 P.M. on December 26th;
f. New Year's Eve shall be with the defendant in all even years and with the plaintiff in all odd years. This period shall run from 3 P.M. on December 31st to Noon on January 1st;
g. The plaintiff shall always have Father's Day and the defendant shall always have Mother's Day, which shall run from 8 P.M. on Saturday night prior to the holiday and end at 8 P.M. on the holiday;
h. Any holiday not specified with a time period shall run from 10 A.M. to 8 P.M.
C. The parties may alter the designated times and days as they wish, as long as such changes are in writing in advance of the change. For this purpose, dual e-mails will be sufficient to constitute such a writing;
III. The parties shall consult with one another on all significant, non-routine decisions involving the health, education, religion and general welfare of the minor children:
A. Day to day decisions shall be made by the parent with whom the children are in accordance with the detailed schedule discussed below.
B. Neither parent shall make a unilateral decision or take unilateral action regarding the children.
C. Significant, non-routine decisions shall include but not be limited to the following areas:
1. selection of schools and educational decisions;
2. the residence of the children;
3. daycare providers including after school and summer camp programs;
4. participation in extracurricular activities that require commitments of time and transportation involving the other parent;
5. non-emergency medical, dental, psychological, psychiatric or orthodontic care including the selection of the care providers;
6. participation in religious organizations and activities; and
7. trips away from home without a parent that involve a distance of more than fifty (50) miles or overnight stays.
D. Either parent may propose to the other a course of action as to such mutual decisions.
E. The proposal, as well as all subsequent communications, must be in writing.
F. The other party shall, within twenty-four (24) hours, indicate either their approval in writing or indicate disagreement and offer an alternative proposal to which the first parent must respond within twenty-four (24) hours.
G. Either party may request additional information or offer modifications of their proposal.
H. The twenty-four (24) hour reply rule will apply to all communications.
I. Any failure to respond to a proposal, a request for more information or a failure to provide an alternative proposal, shall be considered to be an agreement by the non-communicating parent absent a valid reason for the delay.
J. The process will end when the parties either: agree; accept that they cannot agree on one plan; or after seventy-two (72) hours, which ever first occurs.
K. In the event of no agreement and compliance with the procedure detailed above:
1. The defendant shall have the final authority to make the decision as to educational, extracurricular and religious matters;
2. The plaintiff shall have the final authority to make all decisions as to medical and psychological matters.
IV. General custodial orders:
A. The parties are to communicate via e-mail and/or text only:
1. Each party must provide the other parent with a working phone number at all times;
2. Absent a genuine emergency, neither party shall call or text the other more than five (5) times in a twenty-four (24) hour period;
3. Both parties are to check their e-mail and/or text at least every five (5) hours during the hours from 7 A.M. to 9 P.M.
B. Neither party shall denigrate nor criticize the other parent, directly or indirectly, in the presence of the children nor within the hearing of the children. This shall extend to the spouse, significant other and extended family of the other parent.
C. Neither party shall allow any third party to denigrate nor criticize the other parent, directly or indirectly, in the presence of the children nor within the hearing of the children. This shall extend to the spouse, significant other and extended family of the other parent.
D. Both parties shall, in good faith, make all reasonable efforts to encourage and foster a good relationship between the minor children and the other parent and the other parent's extended family.
E. Both parents shall have full and complete access to all medical, psychological and educational records of the minor children and the providers of all such services to the minor children and neither parent shall, in any way, seek to restrict or diminish such access.
F. The names, addresses and telephone numbers of all educational and medical providers shall be provided to the other party within twenty-four (24) hours of any changes.
G. Each party may have telephone access to the minor children once daily when the children are with the other party. The children shall be allowed reasonable telephone access to the other party so long as said access does not interfere with reasonable parental discipline.
H. Information regarding illness and/or accidents shall be conveyed to the other party as quickly as is reasonable given the circumstances in place at that time.
I. Information regarding school activities, extracurricular events and other activities in which the children are involved or participate shall be shared promptly with the other parent including, but not limited to report cards, school communications, team sport information and schedules and the like.
J. All current medical, psychological and therapeutic services being provided to the minor children shall remain in place and continue for a maximum of sixty (60) days from the date of this Judgment, while new decisions are made about such services in accordance with the protocol as set forth above.
K. Both parties shall make a good faith effort to follow all professional recommendations as to the health, education and general welfare of the two minor children including but not limited to participating in therapeutic sessions with the children and transporting the children to all such appointments that might be scheduled on their primary parenting time.
L. Any required child care arrangements shall be made by the party with whom the children are residing at that time and shall be the sole financial responsibility of that party.
V. Defendant's motion for contempt postjudgment (Docket item #218) is denied.
VI. Each party is to present to the court all evidence of unreimbursed child-related expenses for which that party seeks reimbursement for bills that were incurred from May 5, 2016 to the present:
A. Said bills with an accurate summary sheet of the amounts shall be filed with the court on or before close of business on Friday, July 21, 2017;
B. The court will review the same and either issue a ruling or schedule a further hearing to take evidence as to the contested amounts; and
VII. No legal fees are awarded to either party.