Opinion
FBTFA166059616S
03-21-2018
Heather NIMS v. Timothy NIMS
UNPUBLISHED OPINION
OPINION
WENZEL, J.
This action came before the court for trial on the complaint of the plaintiff- wife, Heather Nims (" Wife" ) seeking a dissolution of her marriage to the defendant- husband, Timothy Nims (" Husband." ) The court makes the following findings of fact and conclusions of law with regard to this action.
The parties herein were married to each other in September of 2005 and the marital relationship has broken down irretrievably and without hope of reconciliation. At least one of the parties has resided in the State of Connecticut for not less than twelve months prior to the commencement of this case. This court has subject matter over this action and jurisdiction over the parties herein. The parties are entitled to a decree of divorce.
Before addressing the balance of the issues in this case, which are primarily concerning the Wife’s request for relocation, the Husband’s requests for visitation and some financial issues, the court will review the evidence submitted and the factual findings of the court.
The Wife is a 42-year-old female in apparent good health. The Husband is a 41-year-old male also in apparent good health. The Wife was born in Keene, New Hampshire and the Husband, though born elsewhere, moved to Keene when he was one-year-old. Both parents grew up in Keene living only a few minutes away from each other. The Wife attended Keene State College and obtained a degree in nutrition in 2000. The Husband graduated from the University of New Hampshire with a degree in business management in 1999. The parties met as adults in 1999 and began dating at that time. When Mr. Nims moved to New York City for employment, the Wife remained in the Keene area where she interned and then worked. For a while they took turns driving back and forth to see each other. They became engaged to each other in April of 2004 and were married in September 2005.
In June of 2008, the parties relocated from New York City to the current marital residence in Fairfield. The move was motivated in large part by their decision to start a family. The parties had decided that this location would be a good environment for a family, reasonably convenient for the Husband’s commute into New York City and also closer to New Hampshire where both parents still had strong ties. Coincidental to their relocation and decision to start a family, they agreed the Wife would stop working and serve as a full-time parent.
After graduation from college, Mr. Nims had begun employment in the financial services industry and relocated to New York City. He has continued to work in that industry for the same employer, notwithstanding some mergers and name changes. His career has advanced at a steady pace. His work has evolved into a somewhat specialized area, which is the development of financial products, that is the design of investment vehicles which can then be marketed to the customers of his employer. The Husband’s income has also grown steadily over the years to reflect his success and advancement. His income is typically paid as a base salary and year-end bonus, some of which may include deferred stock or cash. In 2015 and 2016, his non-deferred income totaled $315,791 and $341,250 respectively. For 2017, his salary was $240,000 and his total income was anticipated to be over $368,000, at the time of trial.
On February 20, 2018, while the parties awaited the ruling of the court, the defendant Husband moved to reopen the evidence. This motion was initially opposed by the Wife, but on March 11, 2018, the parties filed a stipulation (# 130) which resolved the issue. The Stipulation stated the Husband’s increased salary for 2018 ($319,000) and his gross cash bonus ($139,000) as well as certain deferred compensation to vest in future years. No argument or additional information was presented.
The Wife’s prior employment had been as a certified dietitian. She last worked at a major hospital system in New York City as a registered dietitian. Her last day of employment was in June of 2009, just shortly before the birth of the couple’s first child. At the time she last worked, she was making about $50,000 per year. She currently has all the credentials to work as a registered dietitian but does not currently hold any state licenses. She holds the qualifications and experiences to obtain her license as a dietitian in both New Hampshire and Connecticut.
There were ultimately three children born of the marriage: Lyla born in June of 2009; Liam born in November of 2012; and Ryan born in April of 2015. It should be noted that the couple experienced some significant problems and sacrifices in having children. These included in vitro fertilization and at least two miscarriages. Despite the mutual decision to have a third child, Ms. Nims was concerned that this might be overwhelming for her.
As far as the parties’ relationship went, the difficulties in conception and childbirth imposed a strain on the couple. By the time of Ryan’s birth in 2015, Ms. Nims felt her husband was pulling away from her in terms of intimacy. He was staying later at work and also going out after work to bars. She was upset with this as she expected him to come home after work. He justified this as due to his long hours at work and the need to nurture business relationships with fellow workers. At that time, when he was working in New York City, his usual hours were from 6:30 A.M., when he would depart the marital home, until 7:30 P.M., when he would return. With this schedule, he would leave before the children awoke and return after they were in bed. On nights when he would stay after work he would return home even later, usually having dined before coming home. When the couple had discussed this problem, as early as 2013, Mr. Nims was able to relocate his job from New York City to Portchester, New York. While the relocation shortened the mileage of his commute, it did not really change Mr. Nims’ time away from home. Also, he continued to remain away from home even after work and commuting hours.
Ms. Nims began at some point to suspect that her husband was having an affair. These fears were confirmed on Christmas Day of 2015, when the she found evidence of the affair. It turned out much of his time away from home was due to this affair. The relationship in question was with his boss, Ms. " W." Initially Mr. Nims denied the affair, but then later admitted it. He moved out of the family residence in January of 2016 and relocated to his sister’s home in Weston. Mr. Nims initially claimed he was in love with Ms. " W." but would end the affair to keep the family intact. The couple attended a series of family counseling sessions over the next few months. Ultimately, it turned out that Mr. Nims could not or would not stop his relationship with Ms. " W." At that point the couple began to discuss a parenting plan and divorce.
It is clear to the court that the principle cause for the breakup of this marriage is the Husband’s conduct in having an affair with Ms. " W" and then refusing to end it even after being caught. The impact on the Wife was extreme. First, the affair came to light on a holiday traditionally viewed as being about family togetherness and love. It later came to light that while the Husband was cautioning the Wife about the need for fiscal restraint, he was spending money on his affair with Ms. " W" including gifts, nights out, hotels and dinners. He was able to conceal these expenditures because he handled all the finances and used gift cards and other trickery to conceal what he was doing. Finally, Ms. Nims has come to believe that her Husband’s affair with Ms. " W" was going on even as the Wife struggled through the pregnancy of their last child.
Since their separation and acknowledgement that their marriage was ending, the couple has, remarkably and to the credit of both parents, acted as responsible and loving parents to their three children. They have worked to provide access to the father on a flexible and fairly liberal basis. There have been no claims of alienation, interference or other difficulties. The parents have accommodated the reasonable requests of each other and put the best interests of the children first. Likewise, the Husband has, within his financial limits, supported his Wife and children generously to date. All of this has been accomplished without court orders or intervention. Ultimately, the parties came to common proposals on most issues, but foundered on one crucial one: Should the Wife, who both parents propose as the custodial parent, be allowed to relocate outside the Fairfield, Connecticut area, more specifically, to Keene, New Hampshire.
The legal standard by which the question of relocation should be determined in the context of the original divorce proceeding is agreed upon by the parents. This standard is whether or not such relocation is in the best interests of the minor children. Before applying that standard to the facts before this court, it would be helpful to consider how this standard came to apply.
In Ford v. Ford, 68 Conn.App. 173 (2002), the Appellate Court first addressed this question and clarified the rule: " [R]elocation issues that arise at the initial judgment for the dissolution of marriage continue to be governed by the standard of the best interest of the child as set forth in § 46b-46. While the Ireland [v. Ireland, 246 Conn. 413 (1998) ] factors may be considered as the " best interest factors" and give guidance to the trial court, they are not mandatory or exclusive in the judgment context." 68 Conn.App. at 184. In Ireland, the Connecticut Supreme Court had, in a post judgment relocation context, confirmed the best interests of the child standard and adopted from New York jurisprudence, Tropea v. Tropea, 87 N.Y.2d 727, 740 (1996), a series of factors to be considered in assessing the best interests of the minor child. That test was later adopted by the legislature in enacting Conn. Gen. Stat § 46b-56d, See Pub. Act 06-168 § 1. By its clear language, § 46b-56d applies only in post judgment relocation proceedings. Since Ford, numerous trial courts have found it helpful to discuss and apply the Tropea factors which are included in § 46b-56d.
In deciding the issue of relocation, this court has considered, to the extent evidence was presented, all the factors set out in Connecticut General Statutes § 46b-56(c); as well as the factors presented in Tropea and § 46b-56d, giving to each such factor the weight deemed appropriate based on the evidence. Ultimately, the court has treated the relocation issue here with due consideration of all the relevant facts and circumstances presented and guided entirely by the best interests of the minor children.
At trial, both parents testified as to the current situation and exactly what they hoped would be the court’s decision on the relocation issue. The court found both parents to be credible, sincere and deeply concerned with what would work best for the children, as well as themselves. There was much in agreement between the parents. The court also received into evidence a report from Family Services, dated September 6, 2017, which was the result of an Issue Focused Evaluation. Def. Ex. DD.
The Issue Focused Evaluation was generally thorough and ultimately recommended that the Wife be awarded primary physical custody but " remain residing in the State of Connecticut with the children." The reasons given for that conclusion were that " given [the Husband’s] work schedule and the location of his job and residence, [the Wife’s] [r]elocation to New Hampshire would disrupt the young children’s access to their father and would place added strain on their already stressful year full of change ..." After careful consideration of this report and all the evidence submitted, the court ultimately has come to a different conclusion and finds that allowing the relocation of the Wife to the greater Keene, New Hampshire area is in the best interests of the three minor children.
The court starts its discussion by beginning with the reasons advanced by the Wife for the requested relocation. The Wife stated that she needs to relocate for several reasons. First, she claimed she had no real support in the area. She has no family in the area and what few friends she does have are largely tied to school or school related activities. Second, the Wife claims that she simply cannot afford to live in the greater Fairfield area. She testified that the costs of housing, taxes, day care and a myriad of other everyday expenses are all higher in Connecticut than in New Hampshire.
The evidence offered by the Wife regarding her need for family support was highly persuasive. With the departure of the Husband from the marital residence, the Wife testified that she has no family in this area. While the Husband has a sister who resides in Weston, Connecticut, that in-law relationship for the Wife has soured as a result of the divorce. The Wife’s adult friends and activities outside the home are generally related to the children (school/PTA) and these will not survive any significant move by her, which move appears all but inevitable regardless of how the court rules on the relocation issue. On the other hand, both she and the Husband continue to have strong ties to the Keene area where they grew up. Both of the couple’s parents continue to live in Keene and are about five minutes away from each other. These four grandparents are in good health, and all get along with each other. All three children are close to both sets of grandparents. The Wife continues to communicate well with the paternal grandparents and the maternal grandparents appear to support the Husband’s relationship with his children. The Wife also has two sisters living in the Keene area and the couple’s three children have no less than three cousins close in age to them and with whom they are close. The Wife also has aunts and uncles who reside in the same area. Both of the parents still have friends in the Keene area.
All during the course of the marriage the couple have traveled regularly back to Keene to see their families and friends. This had occurred a little more than once a month historically and that frequency has continued for the Wife since the breakup. One of the Wife’s sisters teaches in the local school which is where the children would attend school. There was non-expert testimony from family members as to their satisfaction with this school and the school system. The Wife’s parents have stated they are willing to help out with care of the children and that they in fact provide some part time day care for a sister’s children. The Wife has a number of close friends in Keene several of whom have offered relocation help or job placement assistance.
The court here was persuaded that coming after a difficult and traumatic breakup of the marriage, the Wife’s need for family support in piecing back together her life is an important and legitimate interest not only for her but for the new family unit. " [I]t is not only proper to consider the interests of the family unit as a whole, including the independent interests of the custodial parent, but it is necessary to a determination of the child’s best interests." Ireland, 246 Conn. at 431. As stated in Good v. Good, FBT-FA- 104032365, 2017 WL 4160301 (August 4, 2017) (Sommer, J.), " Connecticut courts ... routinely approve relocation for the purpose of ... the support of family." By way of example, in Taylor v. Taylor, 119 Conn. 817 (2010), the Connecticut Supreme Court affirmed the trial court’s decision finding that relocation for family support was proper.
This brings the court to the second basis asserted for the Wife’s desire to relocate. She testified that the cost of living in lower Fairfield County was simply not feasible for her given the new economic realities, i.e. the parties having to maintain separate residences and households. She testified that the cost of housing is extremely high in the Fairfield area and that she must relocate. Also, she testified she must return to work. Currently she has one child in public elementary school and the two younger ones in private day care or pre-school. She further testified that the cost of childcare in this area for the two younger children will be exorbitant. The Wife must consider extended child care costs to allow her to work during normal work hours, as well as deal with sick days for the children, snow days, etc. Without some extended family to help, this will be extremely expensive. She also testified the cost of childcare would be lower, possibly much lower, in the Keene area.
The evidence was as follows: The marital home was acquired in 2008 at or near the high water mark for the housing market in Connecticut. The marital home’s value today is far less than when purchased, and for many reasons, the couple, though blessed with substantial income, have not managed their spending or debt well. Today both parties agree the marital home must be sold and the Wife and three children currently living there must relocate. No one argues the plaintiff can afford to remain in the marital home given the monthly mortgage cost and substantial property taxes. In short, it is not a question of whether the Wife will relocate, but simply of where she will relocate. The Wife testified, credibly and reasonably that she simply cannot afford to stay in the immediate Fairfield area. She discussed the costs of housing in the extended local area and her options are very limited. She testified as to the cost of housing in the towns surrounding Fairfield and said that she would have to relocate towards New Haven in order to find affordable housing and quality schools. In short, the Wife and children are almost certainly going to have to relocate a significant distance and this means the children will be moving to an area where they will start new schools, have to develop new friends and the mother will have to start all over building the network of friends she needs as a single parent to survive.
The court recognizes that this testimony about the need to relocate and the consensus by both parties that relocation was inevitable were submitted before the post-trial evidence as to the Husband’s increased income. Neither side has addressed in the Stipulation if the new information changes their views on these matters. The court finds the new information does not change the court’s evaluation for several reasons. First, it would be inappropriate for the court to speculate as to what impact the additional income might have had on the testimony and positions of the parties at the time of trial. Additionally, the continued availability of such increased income is hardly assured. The Husband’s continued employment and continued high income, the possibility of the Wife’s cohabitation or other decrease in support are all uncertainties which can come into play if the court places undue weight on a recent pay increase. The Wife’s desire to transition to a sustainable financial situation is entitled to weight as well.
The Wife further compared some of the anticipated costs of living between this area and the Keene, New Hampshire area. New Hampshire has no state income tax and the cost of living is significantly lower. Most convincing were the relative costs of homes in the two respective areas. The Wife anecdotally compared other common expenses and urged that Keene was significantly lower in most regards. She also claimed that the employment opportunities were superior in the Keene area, though this relied almost entirely on empirical evidence. While not all of this testimony and evidence was persuasive, the court does find that the cost of living, especially housing, is substantially less in Keene and the likelihood of home ownership there in a quality area with sound schools is greater than relocation within the limited area proposed by the Husband. The very same considerations addressed by the Wife here were found to support the post judgment relocation of the wife in Oliver v. Oliver, 85 Conn.App. 57 (2004) (The wife claimed the " cost of living was lower" and the " housing market was much less expensive" ).
It would be appropriate for the court to discuss at this point the perspective of the Husband on the Wife’s requested relocation. Mr. Nims has expressed his concern that if the Wife is allowed to relocate to Keene, this will have severe repercussions to his ability to maintain a strong relationship with his three minor children. He proposes that the Wife who he agrees should have primary custody and must move from the family residence, be limited to relocation within a fifteen mile radius of the marital home. He notes that Keene is approximately 2 hours and 45 minutes away and with adverse weather or traffic conditions, the commute can run even longer. The Husband contends the current visitation and parenting schedule worked out by the couple has worked well and they are both flexible and cooperative to date and communicate well. He believes relocation to such a distance will make the mid-week visitation all but unworkable and preclude all but the occasional visitation to the children’s school or extra-curricular activities. The Husband points out, and as the Family Services report states, that after a slow start in working out an acceptable visitation schedule due to the very young age of Ryan, their youngest child, the parents have settled into a fairly steady routine with the father having visitation for two to three hours one night a week with the children and then alternating weekend visitation. The Husband at trial asked to have that visitation extended to include Wednesday overnights and Sunday overnights with him taking the children to school the following morning.
The court begins by noting that no one at trial ever diminished or qualified the importance of this father in the lives of all three children. He appears to be a loving and devoted parent who is trying to make the best possible situation within the limits of these circumstances. While it is clear the relocation of the Wife and children to Keene will limit some of the Husband’s opportunities for contact with his children, the court still finds that based on all the evidence and circumstances of this family, the best interests of the children dictate permitting the Wife to relocate to Keene, New Hampshire.
While there is no definitive set of factors to which the trial court should resort in determining the best interests of the minor children, many courts have looked to the factors discussed beginning with the Ireland case and referred to as the Tropea factors. The first of these is " [E]ach parent’s reasons for seeking or opposing the move." 87 N.Y.2d at 740. Here the court finds Wife’s reasons are exactly as stated by her. The first is her need and that of the children for family support. Even before the breakup of this family, the mother, acting as a full time parent was barely able to cope with the duties of a parent. The Husband, who works in a challenging and intensely competitive position, complicated by a lengthy commute, often was simply not available for the everyday childhood emergencies such as the daughter’s fainting at school, scheduled or emergency medical appointments, teacher conferences and the like. Notwithstanding the best of intentions, there is no evidence that the Husband is going to become more available now that he has vacated the marital residence. In fact, the Husband testified he now spends approximately twenty days a month residing outside the state, usually in the Armonk, New York area where stays with his new significant other. The Husband has discussed possible marriage in that relationship.
Exacerbating her need for family support is the Wife’s intent to resume employment. Regardless of how long or how well the Wife might be able to remain unemployed given sufficient support, it would be extremely risky for her to unduly delay her return to the workforce. This return to work will occasion even more pressure on her when any child is ill, off from school or needing her for activities and emergencies. Here she has no help or support to cope with these problems. In Keene, she has multiple loving grandparents, siblings and life-long friends. As noted above, this concern is recognized by many courts as a legitimate reason for relocating.
The court also recognizes and finds that the Husband’s reason for opposing the relocation is legitimate. While that motive is laudable, there is little evidence it is realistic.
The next factor to be considered is " the quality of the relationships between the child and the custodial and noncustodial parents." 87 N.Y.2d at 740-41. In this case both parents have demonstrated loving and caring relationships with all three children. Nonetheless, given the historical relationships of these parents it is clear that the wife has had longer and more significant contacts with the three children. This is especially true for the youngest child Ryan who has known the Husband only since his departure from the marital residence. Even before that event, the Husband was usually not present during the children’s waking hours on weekdays. As both parents urge the court to give the Wife primary physical custody, her well-being and happiness is of vital importance to the happiness and welfare of the children. A parent who suffers from the hardships imposed by being ordered to remain in a geographic area which deprives her of familial support and imposes economic limitations is not in the best interests of the minor children.
The next factor to be considered is " the impact of the move on the quantity and quality of the child’s future contact with the non-custodial parent." 87 N.Y.2d at 741. To truly assess this factor the court must weigh realistically the impact of the mother’s requested relocation on the quantity and quality of the children’s future contact with the Husband. The place to begin that assessment is by examining the Husband’s current and historic contact with the children.
The Husband at this point has had weekday visitation with the children one night a week for about 2 to 3 hours and overnight visitation on alternating weekends. Historically, the Husband’s contact with the three children has been limited during the week. Typically, that is before he even departed the marital residence, he departed home before the children were awake and returned home after they had either gone to bed or were well on their way to doing so. Since the separation, the Husband travels back to Fairfield on Wednesday early evening, and goes directly to the marital residence where he meets with the children and spends a few hours with them. Given the very limited time he has with them on these Wednesday early evenings, he usually plays with them rather than feed them, help them with homework or prepare them for bed. These meetings take place at the marital residence where the Wife, who tries to stay out of the way, remains close by because the children want her to be physically present. Such weekday meetings are clumsy for the Wife and clearly represent a " stop-gap" arrangement.
The Husband urges the court to now grant him additional visitation extending the Wednesday visitation to an overnight visit and extending his weekend visitation to include a Sunday evening overnight with the children. As much as the Husband honestly desires this additional time with his children, the court finds such extensions would be unrealistic. It is clear to the court that neither the demanding nature of the Husband’s career nor the limitations of his commute are likely to change. While the Husband testified that he has discussed flexibility for work hours with his employer, the discussions to date have been only abstract and the court cannot find that to be a realistic possibility. Also, the husband has proposed that at the end of these additional overnights, that is the next morning, he would drop the children off at their respective schools. When asked what his plan was when any one of the children was sick, a school was closed or he was not available for any other reason, the Husband simply stated he would discuss it with his Wife. This is not a realistic plan. At best it would leave the Wife constantly on call at least two mornings every week and at the mercy of the Husband’s schedule. Even on days when there was no problem, his proposal fails to account for the fact that two of the children have delayed start times for their school day and his return to work would be delayed several hours each day.
In short, the Husband’s historic weekday parenting time, his current weekday parenting time and his proposed additional weekday parenting time all have been, are now or will be problematical. Worst of all, the court finds that the Husband’s parenting time is almost certain to suffer under any viable option for the future, because they all involve the relocation of the Wife and children to a more distant residence. This inevitable deterioration is an important factor in the court’s coming to a different conclusion than the Family Relations report.
The reason for future concern is that both parents recognize the Wife and three children must relocate and the evidence shows there is little chance that can be accomplished without the Wife moving farther away from the current residence. There was considerable testimony about the Husband’s current commute. Under any scenario, the congestion at rush hours is difficult. Currently, to arrive at the Wife’s current residence by 5:30 P.M. on a weekday, the Husband must leave work early; take the train to a Fairfield train station and then Uber or taxi to the marital residence. Once the Wife and children have relocated, it will add considerable time to the Husband’s dash home. All the credible evidence indicated there were no residential alternatives in the any area close to the current residence. While 15 miles may not sound like a lot, at rush hour in Fairfield County, it will add considerable time to the commute. Moreover, for the father to continue to continue to conduct his weekday visitation at the Wife’s new home is simply not a viable long term solution.
On the current weekend visitation, the Husband has Friday evening until Sunday afternoon on alternating weekends. This has worked out reasonably well to date, though the Husband’s residence in Fairfield, a one bedroom condo, may not a viable long term location due to its limited space. While both sides request this weekend schedule remain in place, the Husband argues that the lengthy travel time between Keene and Fairfield will always make the process more difficult, make the children more reluctant to travel or possibly resentful at the inconvenience. There is no way to dismiss these concerns.
Of importance to the court is a comparison of the parents’ alternative requested relocations on the Husband’s future visitation. Beginning with the weekday visitation, whether as existing or with additional overnights, the evidence shows that the Wife’s relocation to Keene will ultimately not be the significant factor limiting the Husband’s visitation. The problem to date has been principally caused by the demands imposed by the Husband’s work and commuting schedule. Given the agreed upon need of the Wife to relocate and the few viable locations within 15 miles, weekday visitation is going to become increasingly difficult. For weekend visitation, relocation to New Hampshire will place additional burdens on the parents, but the court cannot find these factors outweigh the benefits to the children of the move.
The next factor to be considered under Tropea is " the degree to which the custodial parent and child’s life may be enhanced economically, emotionally and educationally by the move." 87 N.Y.2d at 741. Based on the evidence as to the economic benefits of relocation to New Hampshire, principally the affordability of housing and the lower cost of living, the court finds there to be economic benefit to the move. Emotionally, while the move will impact their time spent with their father, it should not be as substantial as feared, and the quality of the relationship should continue. Somewhat balancing this diminished time with the father, the children will gain closeness to an extended family of all four grandparents, aunts and cousins. Also, the principle custodial parent will enjoy a more stable and supportive environment, clearly to the benefit of the children. Educationally, the court cannot find any loss in quality occasioned by the move as the Keene schools appear to be very good and while Connecticut schools are often exceptional, those in the likely area of local relocation do vary in quality.
The final factor under Tropea is " the feasibility of preserving the relationship between the noncustodial parent and the child through suitable visitation arrangements ..." 87 N.Y.2d at 741. In this regard, the court has noted that the biggest negative impact of relocation to Keene will be on the lengthy commute between the Husband and Wife. The court notes in this regard that relocation requests similar in distance have been frequently approved by the courts. Emrich v. Emrich, 127 Conn.App. 691 (2011) (relocation from Fairfield County to Portland, Maine); Forstmann v. Forstmann, 2007 WL 4733054 at *6 (2007 Munro, J.) (relocation from Greenwich to Winhall, Vermont, a 3:47 hour commute); Ford, 68 Conn.App. at 175, 177 (allowing relocation from Greenwich to Boston). This court proposes to ameliorate this factor in several regards. First technology continues to improve the ability for interactive contact between family members over significant distances. The court’s order will require the parents to adopt such technology for this purpose. Second, this court proposes to grant the noncustodial parent the vast majority of three-day weekends whenever possible. The court will also balance responsibility for transporting the three children and encourage the parents to use the flexibility, common sense and cooperation they have demonstrated to date to maximize the amount and quality of the father’s visitation with his children. Moreover, the Husband’s continuing contacts and family in Keene will give him additional occasions to visit the area and the court will grant the Husband additional visitation when his schedule permits him to be in the Keene area.
Having considered all the evidence and all the appropriate factors in this case it is the finding of this court that the best interests of the minor children are served by allowing the Wife to relocate to the Keene, New Hampshire area.
Accordingly, it is the order of the court that the Husband and Wife shall have joint legal custody of their three minor children with primary physical custody to be with the Wife. The Wife is permitted to relocate to the Keene, New Hampshire area.
The Husband shall have parenting time with the children as follows:
On each Wednesday from after school, camp or if neither school nor camp are in session, 4 P.M., until 7:30 P.M., whenever the Husband is physically within a reasonable distance of the children, i.e., currently Fairfield or the Keene area after relocation of the Wife to Keene. On such days, it will be the Husband’s responsibility to pick up and drop off the children. By mutual agreement, which shall not be unreasonably withheld, the Husband may have overnight visitation with the children and on such occasions, but he will be responsible for delivering the children to their respective schools, dressed and ready for school, or camp or the Mother’s home. After relocation by the Wife, the Husband may exercise the above described weekday visitation on any one weekday (Sunday through Thursday) but he shall give at least 24 hours of notice to the Wife of his intent to exercise visitation.
On the following three-day weekends, the Husband may elect to have an extended weekend visitation with the children which shall run from 7:30 P.M. on Friday (or the last day of school on Easter Weekend) until Monday afternoon at 4 P.M. (Sunday 4 P.M. on Easter Sunday.) In the event the Husband is physically located within a reasonable distance of the children, he may extend the hours of visitation up to from one hour after school at the start to 7:30 P.M. at the end, but he shall be responsible for transportation. The three-day weekends are as follows: Martin Luther King Day; Presidents’ Day; Good Friday/Easter Sunday; Memorial Day; Labor Day; and Columbus Day (if a school vacation day). In the event these dates interfere with the additional weekend schedule set out below, the parents shall adjust the weekend schedule so that the Husband has no more than two weekends in a row.
The Husband shall additionally have weekend visitation not less frequently that every third weekend. This shall be in addition to the six three-day weekends set out above. This visitation shall begin on Friday at 6 P.M. and end at Sunday at 6 P.M.
For all weekend visitations, each parent shall be responsible for one half of the transportation of the children. They may allocate this in any manner agreeable to them, such as meeting halfway or each driving at the start or finish of the weekend. As a default condition, the Husband shall drive at the start of the weekend and the Wife will drive at the end. Either parent may designate a responsible alternative driver, acceptable to the other parent, to perform their share of the driving. Each parent will make sure they provide the appropriate infant carrier or child seat at all times.
For any occasion where the Husband is physically staying in the Keene area, the Husband may have additional, non-overnight visitation with the children that does not conflict with school or other scheduled activities, at the reasonable discretion of the Wife.
In addition to the above visitation, the Husband will have visitation available as follows: At least one-half of the Christmas school break; one-half of the Winter and Spring semester school breaks (currently there are two, February and April). In even years, the Husband will have first selection of the break he chooses, in odd years, the Wife will have first selection. In the event the school system has only one Spring break, the parents shall be entitled to first selection shall enjoy the break that year. Selections must be disclosed to the other parent by January 2 of each year.
Christmas. The Christmas Holiday shall consist of Christmas Eve from 9 A.M. until Christmas day at 6 P.M. In the event the parents are both spending the holiday in the same area, they shall split the holiday before and after Christmas Eve at 9 P.M. In such case, the parent traveling further shall have first pick. In the event the parents are not in the same area for the holiday, the Husband shall have visitation in even years and the Wife visitation in odd numbered years.
Thanksgiving. The Thanksgiving Holiday shall be divided as follows: One parent shall have visitation from 8 P.M. on Thanksgiving Eve until 9 A.M. on the following Friday. The other parent shall have visitation from 9 A.M. Friday until Sunday at 3 P.M.
Summer Vacations. Each parent shall have up to three weeks Summer vacation with the children, but not more than two consecutive weeks without the consent of the other parent. The vacation period shall either commence or end with that parent’s regularly scheduled weekend for custody. The parents shall specify their period for Summer vacation as follows: The first parent shall specify by April 1 and the other by May 1. The Husband shall go first in even years and the Wife in odd years. Travel outside the United States is allowed only with permission of the other parent, which shall not be unreasonably withheld.
On all visitations other than weekend visitations, the responsibility for transportation of the children outside the Keene area shall rest with the Husband.
The parents will both, at all times that they have immediate physical custody/visitation of one or more children, allow reasonable audio/visual communication between the child[ren] and the other parent. The communication may be limited only as appropriate for the age and situation of the child. Each parent shall also provide dedicated equipment [such as wide screen monitors or laptops] at their residences to allow the children to all simultaneously view and be viewed, hear and be heard, by the other parent.
Both parents shall be equally responsible for all major decisions in the life of the children, including significant medical matters, schooling, religious practices and the like. For less significant matters and whenever an emergency requires, the parent then with physical custody shall make a decision consistent with the prior joint decisions made to date. Both parents shall have equal access to all information and records of and concerning the minor children, including medical, dental, religious and scholastic. Both parents shall be listed as contacts for the children and entitled to receive notice of school events, conferences and ceremonies.
The Husband shall continue to provide at his expense the existing (or similar) medical and health insurance for the children providing reasonable medical, dental, vision and drug benefit coverage so long as such can be provided at reasonable cost. Except in the case of emergencies, each parent shall consult with the other prior to incurring any extraordinary expense or deductible for any health related expenses. Both parents shall cooperate to provide information and documentation as might be needed to ensure timely access of the children to health services.
Neither parent shall disparage the other to or in the presence of the children or permit any other person to do so.
Unallocated Alimony and Support
The court does not award any alimony to the Husband.
Commencing on the first payday of the Husband on or after this decree, the Husband shall, during his lifetime, pay unallocated alimony and support to the wife, until her death, remarriage or cohabitation (other than with existing members of her immediate family) in the initial amount of fifty (50%) per cent of his gross income. This unallocated alimony and support shall continue to be paid at this rate until May 1, 2021 and shall then continue at the rate of forty-five (45%) per cent for two years, followed by two years at forty (40%) percent, and then for an additional one year at thirty-five (35%) per cent. This means slightly more than eight years of unallocated alimony and support payments, unless terminated sooner as specified above. This scheme of unallocated alimony and child support should assist the wife in transitioning to her new residence, obtaining employment and achieving economic independence. It also reflects over time the anticipated lower costs of living in the Keene area. Upon the termination of such unallocated alimony and support, the parties shall attempt to determine and agree upon the appropriate amount of child support or apply to the court to determine any applicable child support payments due thereafter. The amount of child support determined thereafter shall be retroactive to the date unallocated alimony and support payments ceased.
The court has attached hereto as Attachment 1 a Worksheet showing application of the Child Support Guidelines based on the income of the parties. The court has elected to deviate from such guidelines due to the coordination of total family support, the best interests of the minor children and the important transitional needs of the Wife and children due to relocation.
Gross income shall include any and all income from employment or services rendered by the Husband including wages, salary, draws, bonuses, commissions, partnership distributions resulting from employment or active participation, unemployment or disability payments, severance or consulting fees. It shall also include any deferred income which is deferred voluntarily by the husband. Gross income shall not include any stock options, restricted stock or other deferred compensation to which the husband does not have a current right to receive. In the event deferred compensation becomes payable to or is received by the husband, within the period he is obligated to pay unallocated alimony and support, then it shall be considered as part of his gross income and the applicable percentage paid. The Gross income of the Husband shall be capped at the amount of Four Hundred and Fifty Thousand ($450,000) Dollars per calendar year, beginning in calendar year 2019.
Payments towards the unallocated alimony and support ordered herein shall be payable on the same schedule as they are received by the Husband. For example, payments based on the Husband’s base income, which are currently received twice monthly, are to be transferred electronically from the Husband’s account directly to the designated account of the Wife within one day of the Husband’s receipt of same. Payments of other income which might not be received on a regular basis, e.g., bonuses or deferred compensation, shall be made at the applicable percentage required within seven (7) days of the Husband’s receipt of, or ability to receive, same.
All unallocated alimony and support payments made by the Husband shall, to the maximum extent allowed by law, be deductible to the Husband and recognized as income by the Wife. In the event such tax treatment is no longer available to the Husband due to changes in the law, tax code or regulations, the parties shall agree upon a modification of this obligation which attempts to the greatest degree possible to equalize and share the impact of such changes upon both parties. Either party may return to court for modification in the event they cannot agree on such modification. To the extent possible, the parties shall cooperate to avoid any change in the deductibility of these payments.
The parties shall equally divide the dependency exemptions (or other tax benefit available) for all three children with the Husband getting the extra exemption in even numbered years and the Wife getting the extra in odd numbered years. Each party shall assist the other in seeking such benefit as allowed by this provision. In the event one parent cannot benefit by this provision, that parent will allow the other to claim the children as dependents.
The Wife shall be entitled to earn up to $50,000 per year in gross annual income, in addition to unallocated alimony and support, before any modification of the unallocated alimony and support obligation of the Husband may be sought on this basis. In any proceeding seeking modification of the unallocated alimony and support obligation under this decree as a result of the Wife’s increased income, her first $40,000 of income shall not be considered.
Each parent shall be responsible for their respective percentage of any unreimbursed medical or dental expenses (including orthodontic and vision care), all childcare expenses and all mutually agreed upon extra-curricular or school related activities at the same percentage at which the parties currently divide the Husband’s gross income. In other words, initially such expenses share be divided between the Husband and Wife 50/50; then 55/45; then 60/40 et seq. Without limitation, such extra-curricular activities may include classes for sports, dance, self-defense, religious education, tutoring, school outings and the like. The parents shall not unreasonably withhold their consent to such expenses and activities. More significant expenses such as camp or significant school trips must be agreed upon in writing.
At such time as the there are no further unallocated alimony and support payments due under this decision, or support payments are not made on the basis of a percentage of the Husband’s gross annual income, then the respective responsibility of each party for extra-curricular activities, unreimbursed medical expenses and child care expenses shall be determined by agreement, according to the Child Support guidelines or further order of the court.
The court finds that had this family unit remained intact, it is probable that these parents would have contributed towards the support of their children for the costs of higher education. At the request of the parties, the court retains jurisdiction to enter educational support orders pursuant to Connecticut General Statutes § 46b-56(c).
Allocation of Property, Assets and Liabilities The Marital Residence
The Husband and Wife are joint owners of real property located at 118 Lucille Street, Fairfield, Connecticut (the " Property" ). From the date of this decree, this Property shall be held equally as tenants in common with no right of survivorship. Until the sale of the Property or the wife departs said Property, she shall be entitled to exclusive possession of same. The Property shall be placed on the market for sale within 30 days of the date of this decree and the parties shall use their best efforts to agree upon the selection of a listing real estate broker. In the event the parties cannot agree, each party shall choose one real estate broker and the two brokers chosen shall select a third which shall be the listing broker. The parties shall use their best efforts to agree upon the initial listing price, the timing and amount of any reductions in listing price and the financial acceptance of any offers to purchase. In the event the parties cannot agree upon any of these issues, they shall submit such issue to the listing broker for their recommendation. Otherwise, the parties may return to court for resolution of this issue.
The parties shall review the listing price every 45 days and consider whether an adjustment or reduction is appropriate giving substantial weight to the recommendation of the listing broker. Any bona fide offer that is within 5% of the current listing price shall be accepted by the parties unless they mutually agree to the contrary. In the event an offer is received for less than 95% of the listing price it may be accepted by mutual agreement.
Until the closing on sale of the Property, both parties shall share equally all the costs and expenses associated with the maintenance of the Property, including all mortgage indebtedness, taxes, utilities, landscaping, oil/gas and the like. Upon the sale of the Property, the proceeds shall be distributed as follows: first the parties shall pay the balance of any mortgage or other lien on the Property; second, any applicable broker’s commission or commissions and fees; third, reasonable attorney fees and disbursements or costs customarily associated with the sale of property, including any applicable conveyance taxes. After payment of these expenses, the Wife shall receive the first $20,000 of the net and the balance of any proceeds shall be divided 60% to the Husband and 40% to the Wife.
Retirement Accounts
The following retirement and pension accounts shall be divided equally between the parties: the Wife’s TIAA/CREFF 403(b) account; the Husband’s Morgan Stanley 401(k) account; the Husband’s Citibank 401(k) account and the Husband’s Citibank Pension. The parties shall equalize the value of these accounts, valued as of the date of dissolution, adding or subtracting any market gains or losses incurred until the date of division. (Any additional contributions by either party to a fund after this decree shall not be subject to division.) They are free to transfer only such accounts or amounts as are needed to effect an equal division and minimize the expenses of such division. The costs of any expenses necessarily incurred to accomplish this valuation and division shall be borne equally by the parties.
Bank Accounts
The parties shall equally divide the balances of all bank or financial institution accounts, including all checking and savings accounts, any certificates of deposit or other deposits or accounts, held by the parties whether jointly or individually, including the following: the USAA checking account (0394541); the USAA savings account (0394533), the Morgan Stanley checking account (0398586); the USAA Savings account (0390014)and the USAA checking account (0390006). The balancing shall be based on the values of such accounts as of the date of dissolution. The parties are free to transfer only such amounts as are needed to effect an equal division. Thereafter, any joint accounts shall be closed or changed to an individual accounts, unless agreed to by both parties.
Liabilities
All general indebtedness (such as credit card, home loans, mortgage debt and the like) as shown in their respective financial affidavits, or incurred by the parties in the normal course or with disclosure to the other party prior to the last day of trial shall be allocated equally between the parties. Excepted from this general allocation shall be student debt of either party, which shall be the sole obligation of that party, and any liability of either party to a relative on their side of the family, e.g. David Nims, which shall be the sole obligation of that party.
Life Insurance
So long as the Husband has any alimony, child support or unallocated alimony and support obligation payable to the Wife, he shall be obligated to maintain life insurance having not less than One Million ($1,000,000) Dollars in death benefit payable to the Wife as an irrevocable beneficiary. At the end of any obligation to pay alimony, child support or unallocated alimony and child support to the Wife, and continuing until the youngest child reaches the age of twenty-three (23) or has graduated from college, the Husband shall continue to maintain at least Five Hundred Thousand ($500,000) Dollars in life insurance payable to the Wife as irrevocable beneficiary and as Trustee for the benefit of the children. The Husband shall, if possible, require the provider of such policy to provide the Wife notice of any failure to pay applicable premiums or pending lapse of such coverage. Upon reasonable request by the Wife, the Husband shall provide documentation confirming his compliance with these provisions.
Each party is entitled to the cash surrender value of any policy they own, but may not borrow or draw against such value to diminish, below the requisite floor, any death benefit that party is obligated to provide under this decree.
Medical Insurance
The Husband will continue to provide health insurance for the benefit of each child until such child graduates from college, obtains health insurance through employment or becomes emancipated. This obligation will continue so long as health insurance is available to the Husband through his employment or is otherwise available to him at reasonable cost. The Husband will provide the Wife such documentation and information as she may reasonably request in order to obtain medical and health related treatment for the minor children.
Each party will be solely responsible for their own individual health care insurance and expenses from the time of the dissolution.
Vehicles
The Wife shall retain the Toyota Sienna (2016) and the Husband will retain the Nissan Pathfinder (2013) free and clear of any claim by the other. Each party shall cooperate to execute any documentation necessary to effect this provision.
Personal Property
Each party will retain as their sole property all their clothes, jewelry, personal effects and other physical property already divided by agreement or in their possession at the time of dissolution. This includes all furniture, electronics, china, silver, kitchenware and other home furnishings.
All family photos shall be divided between the parties with each parent providing access to the other to digitally copy or reproduce same. All other family memorabilia shall be divided equally by the couple.
The Husband shall retain as his sole property any security deposit he has placed on his current rental unit.
Childrens’ Accounts
All current accounts for any of the minor children shall continue to be held by the current custodian. Any joint accounts shall be transferred to the Husband to be held in Trust. All such accounts will be used only for postsecondary educational expenses unless both parties agree in writing.
The plaintiff is restored to her maiden name of Heather Cote.
Legal Fees
The Husband will be solely responsible for his own costs and fees incurred herein. The Husband will be responsible for $20,000 of the Wife’s attorneys fees incurred herein and is ordered to pay those to either the Wife or Wife’s counsel of record at the rate of $1,000 per month commencing on May 1, 2018.
The court will retain jurisdiction to enforce the terms of this decree, to approve any necessary Qualified Domestic Relations Orders necessary to effect balancing of pension, profit sharing and retirement accounts and to enter any post-majority educational support order on application of either parent.
Whenever in this decree, the court has ordered a division of income, assets, proceeds or accounts, the parties are also ordered to cooperate in providing information and documentation as may reasonably be requested or necessary to effect such order.
Each party will be responsible for any increased expenses, including attorneys fees incurred by the other party for failure to comply with any obligation imposed in this decree.
During the period that the Husband is obligated to pay any alimony, child support or unallocated alimony and support, each party is ordered to provide the other with timely and complete information and documentation concerning their current employment, gross income, any voluntary deductions or withholding. Each party shall keep the other timely informed, i.e., within ten (10) days of any change, in his or her current base salary, pay or draw, of any payment of any bonus or additional income and the award of any incentive or deferred compensation of any kind, whether deferred or not. Each shall also advise the other of the date on which any unvested or deferred compensation of any kind becomes vested or subject to withdrawal. Upon reasonable request, written confirmation and documentation appropriate to confirm this information shall be provided.
In closing, the bonds of matrimony are dissolved between the Husband and Wife and they are now free to live their lives without interference from the other.