Opinion
FBTFA156052089S
11-19-2018
Jennifer C. LANCIA v. Christopher LANCIA
UNPUBLISHED OPINION
OPINION
STEWART, J.
Plaintiff Jennifer Lancia moved on September 19, 2017 to modify the dissolution decree to change joint legal custody to sole legal custody and to require her ex-husband, Defendant Christopher Lancia, to contribute to child care expenses. The Court held an evidentiary hearing on both motions on August 13 and 14, 2018 and September 24, 2018. At the hearing, the following individuals testified: Fairfield Patrol Officer Felix Gonzalez, Fairfield Detective Kerry Dalling, Plaintiff Jennifer Lancia, Charity Aldridge, Chelsea Lancia, Department of Children and Families (DCF) employee Claudia King, CSSD Family Services Counselor Jennifer Karaja and Defendant Christopher Lancia. Both parties have filed proposed orders (Plaintiff 153.00 and Defendant 154.00).
I. Motion to Modify Custody
The Motion to Modify Legal Custody requires the Court to determine, as a threshold matter, that there has been a material change in circumstances since the original order sought to be modified was put in place or that the custody order sought to be modified was not based on the best interests of the child. "After the final decree, this 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 of 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." Hall v. Hall, 186 Conn. 118, 122, 439 A.2d 447, 449 (1982) (citations omitted); Petrov v. Gueorguieva, 167 Conn.App. 505, 511-12, 146 A.3d 26, 32 (2016); Walshon v. Walshon, 42 Conn.App. 651, 657, 681 A.2d 376, 380 (1996). The burden is on the moving party to prove either one of these thresholds by a preponderance of the evidence. Martowska v. White, 149 Conn.App. 314, 322 n.12, 87 A.3d 1201, 1206 n.12 (2014). If the Court makes a finding that one of these two thresholds was met, the Court should then use the factors in Conn. Gen. Stat. § 46b-56(c) to determine the best interests of the child.
Factual and Procedural Background
The Dissolution Judgment incorporated a Separation Agreement dated January 29, 2016. Plaintiff’s Exhibit (P. Ex.) 4. That Judgment provided for joint legal custody of the minor children, Christopher Lancia, born December 27, 2011, and Angela Lancia, born December 19, 2013. The Separation Agreement also provided for joint legal custody and provided for primary physical custody with the Plaintiff and parenting time for the Defendant. Thereafter, the plaintiff filed an application for an ex parte order of custody based on an alleged statement by the defendant to their son Christopher that the defendant was going to put the plaintiff into a grave. The Court issued an ex parte restraining order, dated January 13, 2017, that provided that the plaintiff was to have sole legal custody of the children until further order of the court. P. Ex. 5. On that same date, the Court issued an order providing for supervised parenting time with the defendant. P. Ex. 6. The next month, the parties entered into an agreement, which was made an order of the court, that the defendant could have unsupervised visits with the children and that the parties were to report back to the court with a parenting plan. P. Ex. 7. On June 26, 2017, the parties entered into a Final Parenting Plan, Postjudgment, which was approved by the Court. P. Ex. 8. That Final Parenting Plan provided, among other things, that the parties would have joint legal custody. That Final Parenting Plan was modified slightly by an agreement dated September 7, 2017 (P. Ex. 9) and again by an agreement dated June 12, 2018 (Nos. 147.00 and 148.00).
The plaintiff’s Motion to Modify that is now before the Court was filed 12 days after that agreement modifying the Final Parenting Plan in which the parties had agreed to restore joint legal custody. It does not state what material change in circumstances occurred since the Final Parenting Plan was approved on June 26, 2017 that would alter the Court’s finding on that date that joint legal custody was in the best interests of the children, nor does it state that the Final Parenting Plan was not based on the best interests of the children. Instead, it references the original 2016 Dissolution Judgment, and states that "[s]ince the date of dissolution, the Defendant has demonstrated a complete inability to co-parent or communicate with the Plaintiff in a consistent, constructive and civil manner."
On September 12, 2017, seven days before the instant motions were filed, the defendant made a report to the Department of Children and Families (DCF) that the children had various injuries, that they were not adequately cared for when they were in their maternal grandmother’s care, and that the plaintiff had mental health issues, a history of suicide ideation and had a tendency to drink to excess. The defendant later retracted the allegation about the drinking. DCF investigated, and the person who conducted that investigation, Ms. King, testified at the hearing. She met with parents, the children and a number of family members. She observed the children in both parents’ homes. She did not evaluate the defendant, but she indicated that she had some concerns about his mental health and requested that he seek counseling, which he declined to do. This request was not a formal recommendation by DCF. She testified that she did not have concerns about the children being with the defendant. In her opinion, there was no evidence to support any of the defendant’s report of neglect by the plaintiff or her mother. DCF closed the case for lack of substantiation.
After the Court (Murphy, M., J.) made a referral on November 6, 2017, Ms. Karaja of CSSD Family Services conducted a comprehensive evaluation. P. Ex. 57. She interviewed both the plaintiff and the defendant, a number of family members and a counselor that the defendant saw briefly for anger management. She also reviewed records, including the DCF report, police records and some mental health records for the defendant. She also observed the children in their mother’s home. She concluded her evaluation with recommendations, including the following: (1) the parents should continue to have joint legal custody of both children, (2) their communication should be limited to issues affecting the children and should be through a medium such as My Family Wizard, (3) the parents should make decisions on legal custody issues within a specific timeframe and use a parenting coordinator or a licensed mental health provider to assist in reaching decisions, (4) the plaintiff should continue to have physical custody, and (5) the defendant should continue to have parenting time. The report was finished on May 3, 2018.
During her testimony at the hearing, Ms. Karaja said she thought the defendant’s texts to the plaintiff were "bullying and degrading, but not psychologically manipulative." She also testified that she personally observed the defendant’s anger and impulsive behavior. In addition to the recommendations noted above, she testified that the defendant would benefit from anger management counseling.
The court notes that since this time, the defendant has entered into the 12-week domestic violence program offered by Family Reentry, and therefore will not order anger management counseling.
Significantly, Ms. Karaja testified that she heard no mention of disputes regarding the children’s medical care, religious upbringing or education during the six months she was doing her comprehensive evaluation. She also testified that she encountered nothing during her evaluation that suggested that joint legal custody was a problem. Although there was evidence at the hearing of disputes about the children’s extra-curricular activities, she testified that extracurricular activities are not a legal custody issue.
In January 2018, the plaintiff called the Fairfield police because of excessive and abusive texts that she was receiving from the Defendant. Officer Gonzalez responded to this call and wrote up an incident report. P. Ex. 1. In a period of five to ten minutes, the defendant sent 50 to 60 text messages. While Officer Gonzalez was at the home, the defendant sent 25 text messages and eight FaceTime requests. Officer Gonzalez called the defendant and warned him to stop sending the texts.
Thereafter, on or about May 7, 2018, four days after the Family Services report was completed, the plaintiff met with Detective Dalling and made a complaint about the defendant sending texts. After reviewing the texts and talking to both the plaintiff and the defendant, Detective Dalling filled out an arrest warrant. The defendant was arrested for harassment and breach of peace on or about May 21, 2018. The next day, the criminal court issued a no contact protective order naming the plaintiff as the protected person, which order is still in effect. P. Ex. 44 Thereafter, the plaintiff sought, and this court granted, an order requiring third-party pickups for the exchanges of the children between the parents. P. Ex. 45.
Legal Analysis
A. There Has Been No Material Change in Circumstances
One basis for modifying legal custody is a material change in circumstances that alters the court’s finding of the best interests of the child. Hall, 186 Conn. at 122, 439 A.2d at 449. This court finds that there has not been a material change in circumstances since the entry of the Dissolution Decree in 2016. During the course of the hearing, the plaintiff introduced numerous printouts of series of text messages and emails as well as one letter between the plaintiff and the defendant. P. Exs. 10-39, 48-49, 51-53. She also introduced text messages between the defendant and the babysitter and between the defendant and his goddaughter. P. Exs. 54 and 55 In addition, she played four recordings in April 2018 when the plaintiff and defendant were exchanging their children. P. Exs. 40-43. Many of these same text messages, emails and recordings were provided to Family Services for its investigation. In the writings and the recordings, the defendant’s language often was abusive toward the plaintiff and toward her new husband. In addition, the defendant comes across as angry and impulsive in many of the messages and the recordings. He also bounces around between issuing threats and calling the plaintiff and her new husband names and making suggestive advances toward the plaintiff in the communications.
The communications, however erratic or insulting, do not support a finding of material change of circumstances. Indeed, there was evidence in the DCF report (P. Ex. 56) and the Family Services report (P. Ex. 57) that the plaintiff filed for divorce in the first place because of the defendant’s increasingly abusive behavior towards her and his unwillingness to address possible mental health issues. The plaintiff herself testified to this. Several times, she stated that the defendant’s behavior changed while she was pregnant with Angela in 2013, which was while she was still married. She also stated that she decided she needed to get out of the marriage when the "grabbing" started. When asked point blank on cross examination what has been the material change in circumstances since she was pregnant with Angela, the plaintiff responded: "I can’t answer that."
Although there also was testimony from several of the witnesses that the defendant had reported a history of post-traumatic stress disorder and might have had a diagnosis for bipolar disorder, both of these predated the divorce. Thus, they also could note constitute changes in circumstances. Many of the witnesses testified about the defendant changing jobs frequently, but the plaintiff testified that that was also the case at the time of the dissolution decree and indeed was the reason that the decree had no set days and times for the defendant’s parenting time
In August 2017, the plaintiff and the two children moved from her home in Monroe to her boyfriend’s home in Fairfield. P. Ex. 13. When she informed the defendant of the move in a text, the defendant was upset. P. Exs. 13, 15, 16. The defendant continuously hurled insults at the boyfriend, who is now the plaintiff’s husband. The plaintiff testified that her difficulties with the defendant "further escalated" after she informed him that she was moving in with her boyfriend. While the move and the new relationship may have increased the difficulties in co-parenting, based on the entirety of the evidence, the court cannot find that this was a material change in circumstances that warrants a change to sole legal custody. For example, in Hall, the court found that there was a material change in circumstances when the mother interfered with the father’s visitation and removed the child to parts unknown out of state, and as a result, the court awarded sole legal custody to the father. 186 Conn. at 120, 439 A.2d at 448. See also Trunik v. Trunik, 179 Conn. 287, 288, 426 A.2d 274, 275, (1979) (holding that there was a material change in circumstances when the mother began entertaining "a variety of nocturnal male visitors").
More to the point, the majority of the text messages, emails and recordings had nothing to do with major decisions regarding the children’s welfare, such as their medical care, religious upbringing or education. Moreover, the Family Services counselor, Ms. Karaja, testified that during her comprehensive evaluation, she did not encounter any issues regarding the children’s medical care, education or religious upbringing. These are the core issues for legal custody. Conn. Gen. Stat. § 46b-56(b); Daddio v. O’Bara, 97 Conn.App. 286, 289, 904 A.2d 259, 261 (2006); Zitnay v. Zitnay, 90 Conn.App. 71, 77, 875 A.2d 583, 587 (2005). Indeed, to the extent the parties did communicate about decisions on these issues, they ultimately reached agreement on them.
As for education, on or about May 14, 2017, the plaintiff informed the defendant that Christopher would be attending Sherman School in Fairfield. P. Ex. 52. In August 2017, the plaintiff informed the defendant that she had registered Christopher for kindergarten at the Sherman School. Previously, he had attended preschool at St. Jude’s in Monroe. The defendant was quite upset about being cut out of the decision-making process for this. P. Ex. 18. He also testified that after Christopher was enrolled, the defendant checked with the Fairfield Public Schools and learned that his contact information had not been provided by the plaintiff. Ultimately, Christopher did attend school in Fairfield, and the Court finds that the plaintiff made that decision and the defendant ultimately went along with it.
The plaintiff selected St. Thomas Aquinas in Fairfield for pre-kindergarten for Angela. On May 2, 2018, she texted the defendant to tell him that she had dropped off the money to reserve Angela’s spot. P. Ex. 52. The defendant responded that they had not talked about this, and the plaintiff responded in that series of texts and testified that they had historically talked about parochial school for pre-kindergarten for both children and had enrolled Christopher at St. Jude’s, also a parochial school. On cross examination, the plaintiff admitted that she had selected St. Thomas Aquinas on her own for Angela. As of the first two days of this hearing on August 13 and 14, 2018, the plaintiff had not yet registered Angela at St. Thomas Aquinas because she did not yet have the defendant’s consent or a court order. At the end of evidence on August 14, 2018, the parties entered into a stipulation, which the court approved and which stated: "[t]he minor child Angela Lancia shall be enrolled in St. Thomas Aquinas Fairfield, CT for pre-K for 2018-2019 school year." Nos. 155.00 and 156.00. The parties left it to this court to decide the issue of how to pay for pre-kindergarten.
As to the children’s health, the evidence indicated that the defendant on one occasion in March 2018 rescheduled their annual physicals and took them to the pediatrician without allowing the plaintiff to participate. P. Exs. 34 and 35. The plaintiff also indicated that there might be some issues addressing possible allergies suffered by Angela. On redirect examination, she also testified that the children had tonsil surgery when they were four and two years old respectively, and that the defendant became enraged and attempted to take both children out of the hospital. The defendant denied this. The only concern with regard to the children’s upbringing in the Roman Catholic Church that the plaintiff raised was the delay in their return by third parties on some occasions that kept her from bringing them to 11 am Sunday mass. The defendant testified that there were no issues between the parents on education, religious upbringing or health except for paying the cost of the schooling.
The theme of the plaintiff’s testimony was that the defendant’s behavior and constant changes in jobs, schedules and moods made it extremely difficult to communicate, and therefore she should have sole legal custody. While this frustration is understandable, it is not necessary to grant the plaintiff sole legal custody to address the communications difficulties. If the means of communicating is restricted to My Family Wizard, this should eliminate many of the plaintiff’s concerns. The defendant explicitly testified that he believes he can co-parent by using My Family Wizard and Google Calendar. He later testified that he would be willing to pay a co-parenting counselor to monitor My Family Wizard.
B. Plaintiff Did Not Prove that the Dissolution Decree or the Final Parenting Plan Were Not Based on the Best Interests of the Children
The other basis for modifying custody is a finding that the Dissolution Decree or the Final Parenting Plan that each specified joint legal custody were not based on the best interests of the children. There was no evidence at the hearing that those orders were not based on their best interests of the children when entered. By contrast, in Daddio, the court found that the original order of joint legal custody was not in the best interest of the child because the "evidence overwhelmingly proves that these parents are unable to work together cooperatively" and that the parents lacked "a common base, similar values and respect for each other." Id. at 296, 904 A.2d at 265. Furthermore, in Daddio, the family relations counselor and the child’s guardian ad litem each testified that sole legal custody would be in the best interests of the child. Id. at 295-96, 904 A.2d at 264-65. At this hearing, by contrast, the family relations counselor recommended joint legal custody.
Conclusion
The Court concludes that the plaintiff has not met her burden of proving that either of the threshold requirements for a motion to modify child custody has been met. Accordingly, the court will not undertake an analysis under Conn. Gen. Stat. § 46b-56(c) as to the best interests of the children.
Orders
1. The defendant, Christopher Lancia, and the plaintiff, Jennifer Lancia, shall have joint legal custody of the minor children, Christopher Lancia and Angela Lancia.
2. Subject to the terms of the criminal protective order issued in State v. Lancia, No. F02B-CR18-0302425S, in the event a decision needs to be made in an area of legal custody, the parent who is initiating a proposal shall inform the other parent 48 hours. The other parent will then be required to acknowledge that they have received such notice within 48 hours. In consideration, each parent should make it a priority to regularly check their My Family Wizard account. If the parents are unable to jointly agree upon a decision after two weeks from the initial proposal, the parents are required to attend a minimum of two co-parenting sessions with a parenting coordinator or licensed mental health provider to assist in the decision-making process. The parents should make a genuine effort to discuss and resolve any matter that arises. The defendant shall pay the costs of any parental coordinator or licensed mental health provider.
3. Physical Custody shall remain with the plaintiff.
4. The Final Parenting Plan dated June 26, 2017 as modified by the agreements dated September 7, 2017 and June 12, 2018 shall remain in effect, except as modified by these orders.
5. The defendant shall continue to have parenting time every Tuesday and Thursday from pick up at school until 8:00 p.m. The defendant shall continue to have parenting time every Saturday from 12:00 p.m. until Sunday at 11:00 a.m., with the exception noted in Paragraph 6. These timeframes shall be subject to the third-party pickup terms of the June 12, 2018 Agreement.
6. The plaintiff shall be entitled exclusive parenting time during the first full weekend of each month from Friday after school until Sunday evening and the defendant shall be entitled to exclusive parenting time during the last full weekend each month from Friday after school until Sunday at 6:00 p.m.
7. Each parent shall be entitled to one telephone contact with the minor children during the other parent’s parenting time between 6:00 p.m. and 6:30 p.m.
8. In regard to extracurricular activities or activities with friends and family, the parents shall only make plans for activities during their court-ordered parenting time with the children in order to not impact the other parent’s designated time. Any extracurricular activities that would have an impact on both parents’ parenting time, should be mutually agreed upon in writing through My Family Wizard prior to enrollment.
9. In the event that the father’s work schedule changes permanently, the parents shall use a parenting coordinator or licensed mental health provider for a minimum of two sessions to agree upon a schedule that provides the children with similar access to their father. If the parents are unable to reach an agreement, either party may file a motion to modify.
10. All exchanges of the children shall be through third parties pursuant to the terms of the June 12, 2018 Agreement.
11. Subject to any protective order issued by the court in State v. Lancia, N. F02B-CR18-0302425S, communication between the parents shall only be specifically about the children. Communication shall be brief, concise, and informative and only take place using My Family Wizard, except in the event of an emergency regarding the children. The defendant shall pay the costs of a parenting coordinator to monitor My Family Wizard.
12. For so long as there exists a criminal protective order prohibiting the defendant from communicating with the plaintiff, the defendant shall mail all child support, qualified work-related child care contribution and unreimbursed health care contribution checks to Angela Walsh at 11 Hart Court, Oxford, Connecticut 06478.
II. Motion to Modify Child Support Factual and Procedural Background
The Dissolution Judgment ordered child support, but it did not address the issue of child care expenses. P. Ex. 4. Moreover, the child support guidelines worksheet (No. 107.00) left the section for child care expenses blank. In order to modify a child support order, there must be a substantial change in circumstances or a showing that the child support order substantially deviates from the guidelines. Conn. Gen. Stat. § 46b-86(a).
There was no explanation in the Dissolution Judgment or the Separation Agreement for the absence of any allocation of child care expenses. See P. Ex. 4. There was a statement in the Separation Agreement that the weekly child support payment from the defendant to the plaintiff was a downward deviation from the child support guidelines number "as agreed by the parties to be in the best interest of their minor children." P. Ex. 4 at § 4.1. The Dissolution Judgment is silent as to whether or not the judge found that a downward deviation was in the best interests of the children or that the presumptive amount calculated by the worksheet was inequitable or inappropriate. P. Ex. 4.
There was testimony from both parties that they have hired non-family members to care for the two children, who are each young enough that they should have a caretaker at all times that they are not in school or with one of the parents. The plaintiff testified that after the dissolution, they informally split child care costs, with the defendant paying the costs for Christopher and the plaintiff paying the costs for Angela, but that after the plaintiff moved to Fairfield, the defendant stopped paying altogether. In addition, since the criminal no-contact protective order has been put into place, the parties have needed third parties to handle all exchanges of their children. There should be a court order in place to address these costs. Finally, as noted above, the parties entered into an agreement, which was made a Court order on August 14, 2018, that Angela shall attend pre-kindergarten at St. Thomas Aquinas for the 2018-19 school year, but they left it to the court to allocate the cost of that between the parents.
In conjunction with the hearing, each of the parties filed financial affidavits reflecting more current financial information for each of them than the financial affidavits they filed at the time of the dissolution. No. 152.00 (plaintiff) and No. 157.00 (defendant). Plaintiff’s counsel thereafter filed a new child support guidelines worksheet based on these newer financial affidavits. No. 159.00. Unlike the previous worksheet (No. 107.00), this worksheet is filled in for child care. It suggests that the parents divide the costs of child care with the plaintiff paying 71 percent and the defendant paying 29 percent. The defendant testified at the hearing that he would be willing to pay the percentage calculated under the child support guidelines.
Each of the parties submitted proposed orders, but only the plaintiff’s proposed orders addressed child care costs. In her Proposed Order No. 8, she seeks payment from the defendant for one-half of the plaintiff’s child care provider’s cost, or $170 per week. She also indicates in her Proposed Order No. 6 that the defendant owes her $7, 310 in past child care expenses, which she suggests would be reimbursed by having him pay the entirety of Angela’s pre-kindergarten tuition of $7, 050. There was no evidence presented at the hearing regarding the $7, 310 in child support allegedly owed by the defendant to the plaintiff. More significantly, the motion says nothing about back child support being owed. It only addresses child care expenses. The defendant testified that he would be willing to pay a portion of the St. Thomas Aquinas tuition that was similar to the tuition charged by the Fairfield public schools for pre-kindergarten. See D. Ex. D.
Legal Analysis
As a preliminary matter, the defendant objected pursuant to Practice Book § 25-34(f) that the Motion to Modify Child Support should not be considered by the Court because it was stale. The Court notes that the matter was marked off by Judge Grossman and then the matter was referred to Family Services by Judge Murphy. As indicated above, Family Services did not complete its comprehensive evaluation until May 2018. Accordingly, this Court will consider the Motion.
The Court has reviewed the newer financial affidavits and child support guidelines worksheet and finds that the worksheet is based upon the financial affidavits. The plaintiff’s financial affidavit indicates that the plaintiff’s gross weekly income is $1, 567, and that her net weekly income is $1, 247. No. 152.00. The defendant’s financial affidavit indicates that the defendant’s gross weekly income is $910, and that his net weekly income is $747. No. 157.00. The Court further finds that the worksheet presumes a 29 percent child care contribution from the defendant, and that that percentage is reasonable. The Court heard no evidence suggesting that it would be inequitable or inappropriate to require the defendant to pay 29 percent of the parents’ total child care costs, and therefore the Court will not deviate from the guidelines. Specifically, the Court finds that there was insufficient evidence to deviate from the guidelines to require the defendant to pay for one-half of the plaintiff’s child care provider’s compensation.
Orders
Based on the factual findings and legal analysis above, the Court enters the following orders:
1. The plaintiff shall pay 71 percent and the defendant shall pay 29 percent of all of the childrens’ collective child care expenses, pursuant to the child support guidelines worksheet (No. 159.00).
2. Notwithstanding Order No. 1, each party shall remain responsible for paying their own full costs of any third parties retained by them for the exchange of the children.
3. The defendant shall pay 29 percent of the tuition at St. Thomas Aquinas for Angela’s pre-kindergarten.