Opinion
No. FA-03-0481765
August 10, 2005
MEMORANDUM OF DECISION
Plaintiff is before the court seeking to modify the custody provisions of the uncontested dissolution between the parties that resulted in a judgment on September 8, 2004. The judgment provided for the parties, inter alia, to share joint legal and physical custody of their child. As to physical custody, the parents were to essentially divide the child's time equally between them. The plaintiff must travel for work from time to time; a provision in the judgment provides for there to be makeup time of the child with him immediately upon his return from travel.
The motion to modify custody (#289) was filed by the plaintiff on November 18, 2004. In that motion, plaintiff asserts that since the date of the judgment, the parties are unable to maintain joint legal custody, the child's physical needs are neglected by the defendant and the defendant has failed to honor the makeup time provision of the judgment. Plaintiff, in his motion, seeks sole legal custody and primary physical custody of the child.
The defendant opposes the plaintiff's motion to modify, asserting that joint legal and (unable to read) never gave the custodial arrangements
Throughout the proceedings, the minor child has had the benefit of both a guardian ad litem and an attorney.
The legal standard for the modification of a custody order postjudgment is well settled. "The authority to render orders concerning custody and visitation is found in General Statutes § 46b-56, which provides in relevant part: "(a) In any controversy before the Superior Court . . . the court may at any time make or modify any proper order regarding custody and visitation . . ." That section further provides that in "modifying any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the child . . ." General Statutes § 46b-56(b). "[Our Supreme Court] has limited the broad discretion given the trial court to modify custody orders under General CT Page 11995-b Statutes § 46b-56 by requiring that modification of a custody award be based upon either a material change in circumstances which alters the court's finding of the best interests of the child . . . or a finding that the custody order sought to be modified was not based upon the best interests of the child." (Internal quotation marks omitted.) Walshon v. Walshon, 42 Conn.App. 651, 657, 681 A.2d 376 (1996)." Kelly v. Kelly, 54 Conn.App. 50, 55, 732 A.2d 808 (1999).
In the instant matter, the plaintiff urges the court find (1) that a material change of circumstances has occurred since the judgment such that it is no longer in the child's best interest to maintain the current custodial orders, and (2) the custody order entered on September 8, 2004 was not in the best interest of the child.
Throughout the proceeding, the defendant resisted the plaintiff's introduction of evidence that dated to events prior to the date of judgment. That evidence is admissible and relevant for two reasons. The plaintiff is entitled to introduce that evidence as to the first theory of its motion, and it can be considered by the court if a material change of circumstances is found. "If such a material change is found, the court may then consider past conduct as it bears on the present character of a parent and the suitability of that parent as custodian of the child." Simons v. Simons, 172 Conn. 341, 342-43, 374 A.2d 1040 (1977). As to the second theory that the plaintiff pursues, the evidence is admissible because it is necessary for the court to understand the factual circumstances of this family that brought it to the date of the final dissolution for the court's consideration of whether or not the initial custody determination was not then in the child's best interest. "It is not uncommon for the parties in a dissolution of marriage to focus their attention primarily on the termination of the marriage relationship. Unfortunately, under this pressure some custody awards may be made which are not in the best interests of the child. This court has always held that the paramount consideration in custody matters is the welfare of the child. Tippin v. Tippin, supra, 4; Murphy v. Murphy, supra, 603; Krasnow v. Krasnow, supra; Mullins v. Becker, 113 Conn. 526, 528, 155 A. 705; Dunham v. Dunham, 97 Conn. 440, 443, 117 A. 504. In Antedomenico v. Antedomenico, 142 Conn. 558, 115 A.2d 659, it was held that the interests of the child were so predominant that even though the father had established a good home and was a fit parent, the child's interests were better served by remaining with the maternal grandparents where he had been well cared for. The court, in determining custody, has a "duty to use its judgment, regardless of the allegations or prayers of the parents." Morrill v. Morrill, 83 Conn. 479, 489, 77 A. 1. The fact that factors which affect the welfare of the child have not previously been revealed to the court at the time of the original order should not CT Page 11995-c prevent it from doing its duty by the child when those factors become known to it." Simons, loc. cit. at 347-48.
"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, Trunik v. Trunik, 179 Conn. 287, 289-90, 426 A.2d 274 (1979); Cleveland v. Cleveland, 165 Conn. 95, 100, 328 A.2d 691 (1973); Tippin v. Tippin, 148 Conn. 1, 3, 166 A.2d 448 (1960); Sullivan v. Sullivan, supra, 239; or a finding that the custody order sought to be modified was not based upon the best interests of the child. Stewart v. Stewart, supra, 407; Simons v. Simons, 172 Conn. 341, 348, 374 A.2d 1040 (1977)." Hall v. Hall, 186 Conn. 118, 122, 439 A.2d 441 (1982).
The defendant introduced evidence that all of the witnesses who were called to testify by the plaintiff had benefited financially from the plaintiff, either by way of employment, purchase of goods and services or outright gift. Indeed, this was proven but is relevant only to the issue of whether the witness's testimony was motivated or influenced by bias or sympathy for the plaintiff and/or against the defendant. The court has fairly considered this in determining the credibility of each of the witnesses. The court has also had the ability to observe the demeanor of each of the witnesses who testified before it. Infra, the court addresses the issue of money and power as they affect the parties' relationship as custodians of this child miserably caught up in the struggle between the two of them.
That is, with the exception of one witness, Lisa Grondin, whose testimony was received by deposition.
I. Prior to the Entry of Judgment A. Prior to Court
The marriage between these parties was the plaintiff's fourth marriage. Nicholas Perricone is 57 years old. He is a physician, his specialty is dermatology for which he is Board certified. He holds several patents on products he has developed for consumers in the anti-aging market. He is highly successful. As a result of his commercial success, he no longer sees patients and largely runs his business enterprise. His office is in Meriden, Connecticut. His commercial enterprise includes not only his over the counter products, but also books and other vehicles he has established for the marketing of his lifestyle advice. His work involves travel.
The plaintiff has two other children, the product of one of those marriages. Those children are adult: Nicholas is 28 years old and an attorney in Boston, Massachusetts, and, Jeffrey, who is 21 years old and a student at Northeastern University. He presently spends much of his college break with the plaintiff. The plaintiff's nuclear family includes his parents and four siblings, sisters, brothers (one who is an Episcopalian priest) and numerous aunts, uncles and cousins that he remains close to. His family lives largely in Connecticut except his brother who lives in Tuscany, Italy. The plaintiff was raised Roman Catholic and considers himself a member of that faith.
The plaintiff has always been actively involved in the care of the child when he was at home, attending to her needs. From infancy on, when he was home, he participated in the care and nurturance of his daughter. CT Page 11995-d The child is well attached to him. No evidence was adduced at trial which even inferred that the plaintiff is anything other than an excellent care taker of the child. The testimony regarding him as a parent focused only on power issues by and between the parents, as discussed below.
Madeleine Perricone is 36 years old. This was her first marriage. She was raised in a Roman Catholic and attended parochial schools. Her father was an attorney and state senator; her mother was a portrait artist. She has five siblings. She has a bachelor's degree in psychology and some credits toward a master's degree in counseling from Fairfield University.
The parties met through an executive dating service in 1995. They married in 1996. The minor child, Caitlin was born to the parties on August 12, 1997. Her parents were an intact family. The plaintiff's work was becoming very successful and he worked full-time in it. The defendant also contributed some of her energies to its success.
The defendant was home with Caitlin throughout her infancy and until the precipitant events for this dissolution in 2003. The parties found themselves often in disagreement about the appropriate level of attention and care that the defendant provided for Caitlin in her toddler years. The defendant asserted that she was focused on the needs of the child.
The problems between the parties over the care of the child became more accentuated from her first birthday onward. The plaintiff felt that the defendant put her needs ahead of the child's on many occasions — that she `did not seem to have maternal instincts.' He rarely saw her pick up and hug the child.
Before the child's first birthday, he had told Madeleine never to leave the child in the bathtub alone. On more than one occasion he found that she had done so. On one occasion he found she had left the child in her car seat with the engine running for a long period of time; the defendant had taken the groceries into the house (as she often did) and then left the child unattended while she did other things.
Because of the tension over the care of the child by the defendant, the plaintiff hired household help to assist Madeleine in the care of the child. She resented the intrusion on her domain.
Certain specific incidents did occur which provided the plaintiff with cause for concern when the child was solely in the care of her mother. When the child was over a year old, the plaintiff came home from work to find the child strapped in a chair in the kitchen; the kitchen, and rest CT Page 11995-e of the house, was filled with smoke from a stove fire; the defendant was in the bathroom brushing her hair. This status was a justifiable cause of grave concern by the plaintiff.
On another occasion around that time, when the child was choking on food, the defendant brought her over to a sink to catch the mess that was likely from clearing the child's throat instead of taking care of it on the spot.
The plaintiff became concerned around this time that the defendant suffered from an obsessive compulsive disorder. He based this conclusion on numerous things, including that the defendant washed her hands constantly, washed Caitlin constantly, wiped door handles several times every day and required shoes off in the home. The plaintiff discussed this behavior with the defendant many times, told her that it was treatable and implored her to get psychiatric help. She did ultimately go to a physician once.
The plaintiff had a handgun for which he had been licensed in 1996. He procured the gun at the request of the defendant; she was frightened for her well being as a result of people she had known from contacts prior to meeting the plaintiff. The handgun had been taped to the underside of a shelving surface high up in his closet. In 2001, the defendant drank alcohol to the point of intoxication and was outside drinking on the deck. She had just finished an unpleasant telephone conversation with her mother in which there was a lot of swearing and yelling. When plaintiff went outside he tried to talk with her. She refused and he went back in after taking the bottle of alcohol from her. Without her husband's knowledge sometime later that day, the defendant took the handgun down from where it was hidden and went outside with it. The plaintiff found her outside and found her with a bottle of liquor in one hand and the pistol in the other hand. He took the pistol away and tried to talk with her; she refused. He insisted they go to the hospital; they did and thereafter she treated for a while with a psychiatrist.
The defendant felt that the plaintiff was critical of her as a parent. She often confided about this and other things in Valerie Mirabella, who was her best friend until 2002. The plaintiff also was (and remains) concerned that the defendant divides her world, and consequentially the child's, into those that are for or against her. If the defendant does not like or approve of someone, Caitlin is not permitted contact with that person. They would often discuss ways for Madeleine to improve her parenting. Madeleine acknowledged she had difficulty putting Caitlin's needs first and so they would discuss strategies for her to improve at this. During the period from Caitlin's birth to 2002, Mirabella and CT Page 11995-f Madeleine spent time together almost daily. Mirabella is a devout Catholic and during the years of their friendship, Madeleine became quite adherent herself, often accompanying Mirabella to mass during the week. Their friendship was quite complete until Madeleine became angry with Mirabella for speaking to Beth Lazer at a party in 2002. Starting around 2002, the defendant became sure that the plaintiff had an inappropriate relationship with a woman named Beth Lazer, who is now and was then married. That was the end of their friendship: Madeleine abandoned it because Mirabella rejected the notion that she should snub Lazer because Madeleine thought her husband was having an affair with her.
As the child became verbal and assertive in her toddler years, the care of her became more challenging than ever for the defendant. The defendant was often short tempered with her daughter, unable to tolerate the noisy playing of her age. In 2003, the family's close friend, Guy Ferraro, on many, many occasions saw Madeleine go into a rage of yelling when the child would not obey her, screaming to Caitlin that she would kill herself, that she (Madeleine) would leave her, that her father won't take care of her, and that she hates her. On two occasions in the winter, he was working at the house on improvements and saw that Madeleine had locked the child out of the home in her pajamas. He confronted Madeleine about this when he banged on the door to bring the child in and she was aggressive and told him to mind his own f** business and that she would discipline her child as she saw fit. On a third occasion he found the child cast out to the boiler room. After the second incident Ferraro told the plaintiff a watered down version of the incident and did not fully disclose the incidents to him until the divorce started.
In August 2003, while under the care of Dr. Jeffrey Dietz, a psychiatrist, the defendant went inpatient to Silver Hills Hospital, which is a psychiatric treatment facility in Connecticut. The plaintiff understood her diagnosis to be a bipolar disorder and borderline personality. She was there for one week and then, insisted on leaving before her period of treatment was completed. The plaintiff complied with her wishes and came to pick her up. On the way back in the car she was screaming and yelling. In late August 2003, matters had not calmed down; the police were called on an occasion. In early September 2003, the teacher at Our Lady of Mercy reported that the child had not been able to control her bladder and appeared frightened to her much of the time. The nanny had reported to Dr. Perricone that on September 5, 2003, the defendant came home dirty and with glazed eyes. On September 8, 2003, the plaintiff commenced this dissolution of marriage action, and requested an ex parte order of temporary custody. That order was granted on the same date and the court further ordered that the defendant's visitation with the child was to be as arranged and agreed to by the plaintiff. CT Page 11995-g
B. The Pendente Lite Period
Since the commencement of the action, until the temporary agreement entered on March 2004, the father allowed frequent supervised visitation. There has been criticism of his choice of supervisors, though there is nothing in evidence to suggest that they were chosen maliciously or with an intent to hinder the child's time with her mother. The circumstances that had brought the family to this point were not those any parent is used to. The mother had been suffering from a psychological crisis which had resulted in her hospitalization. Her behavior, both before and after the hospitalization, had been rash, erratic and irrational at times. At the time of this initial evaluation, the father, Nicholas Perricone, was concerned about the ability of the mother to safely parent the child. The choices made by Dr. Perricone were made in light of these things. In these proceedings, there was a continual inference of inappropriateness of the manner in which he chose to commence these proceedings. The court signed the ex parte custody order on September 8, 2003 and continued that order in place until March 2004 — not the plaintiff. The plaintiff's invocation of that remedy can not be criticized by this court in that context. The resentment that the defendant felt from that point forward and to the present day is misplaced. The defendant lacks the appropriate insight to understand that her behavior was sufficient for a court to conclude that such a custodial order was necessary. This lack of insight has fueled the anger and bitterness that the defendant has harbored toward the plaintiff to the present day.
On October 16, 2003, the parties agreed, and the court ordered them to undergo a psychiatric evaluation to assist the court in the decision making process. Dr. Kyle Pruett, a psychiatrist, was selected to do this work by agreement. He has been involved with this family as the evaluator since then and has rendered three different reports. Initially, in the early pendente lite period, he evaluated the parents' psychiatric appropriateness as custodians. Dr. Pruett's initial evaluation was completed as of March 3, 2004. In his assessment of the parties, he found a high level of contention and distrust between the parties. He felt that the child would benefit from a carefully delineated schedule of contact to reduce the child's exposure to parental conflict. He also urged the court to consider joint legal custody because at that time he was not ready to `recommend a parentectomy.' He recommended that the father, Nicholas Perricone, should remain the primary physical custodian (as he was at that time) and the mother should have parenting time every other weekend and one overnight per week. CT Page 11995-h
Dr. Pruett was concerned that the child felt her mother was a good parent and that it was important for the court orders to validate that. It was of significance to Dr. Pruett that the child was very preoccupied with her concerns about her mother. The child thought it was silly that her father thought her mother could not keep her safe. She was happy that she was now able to be alone with her mother and was `counting calendars' until she could sleep at her house. She had real trouble drawing a family portrait. He found it clinically significant that the child had visible physical and verbalized anxiety over cleaning up a mess she had made coloring and cutting in his office. He diagnosed the child at that time with an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He supported the child's placement in therapy, at that time with Dr. John Collins.
From mid-October 2003 to March 5, 2004, the parties engaged in a seemingly endless pendente lite hearing. Those hearings became a major power struggle between the parties. The defendant fueled the litigation with the ability to have numerous attorneys, a psychiatrist and other assistants working long hours on the litigation and its strategies. The defendant was represented by one law firm which resisted what the pendente lite court referred to as "an all out attack on Mrs. Perricone by Dr. Perricone to gain full custody and control of Caitlin." Notwithstanding that litigation and the recommendation of Dr. Pruett, on March 5, 2004, the parties entered into a pendente lite agreement for joint legal custody and a schedule of care of the child between them (which was wholly unsupervised for the defendant).
Transcript of proceedings (Kenefick, J.), March 15, 2004, p. 31, in which the court ordered pendente lite attorney fees to be paid by the plaintiff to defendant's counsel, in the amount of $450,000.00.
From the parties' agreement in March 5, 2004, to the date of judgment, the parties' ability to agree on even the most basic but important things, such as schooling was absent. Caitlin had initially attended Our Lady of Mercy for elementary school. She had been placed there by the parties jointly before the dissolution. Defendant asserts it was never her first choice. The Lazer children attended Our Lady of Mercy School. This is a major reason that the defendant did not want Caitlin to go to that school. The child was performing adequately academically at the school and making progress. The school administration was very unhappy with the defendant because of outbursts she had in front of students, including her own child, and parents at the school, all because of the presence of Beth Lazer. The defendant saw the school administration as against her and failed to understand her own role in that circumstance, or, even the discomfort she was causing her own child. Because the child's first grade teacher testified at a pendente lite hearing as a witness called by the plaintiff, the defendant perceived her as someone who testified against her. Therefore, she rejected the teacher and the school, unable to perceive that the testimony was not advocacy. CT Page 11995-i
In May 2004, the defendant made a scene publicly and loudly at Our Lady of Mercy when she was seated next to Beth Lazer for a Mother's Day program. Among other effects of her conduct, she embarrassed her child by her immediate conduct and served to continue to undermine the child's confidence in her life at her school. The lack of support that the defendant found from the school personnel was in this instance clearly a result of her own immature, angry and outrageous behavior in the environment of the child's school — where the child seeks to make her life and world.
On May 19, 2004, the issue of where the child would go to school the coming fall, and how the issue should be handled between the parties, was before the court. From the transcript of those proceedings, it is clear that the defendant was not communicating with the plaintiff about her plans for a change of schools for Caitlin. This was not more than 10 weeks since the joint custody agreement had become a pendente lite court order. The defendant was seeking a court order that the plaintiff cooperate in the process of exploring the child's attendance of a school other than Our Lady of Mercy. The court in ordering that the co-operation take place further ordered, ". . . neither party shall discuss this process or these schools with Caitlin." The court finds that the defendant did not comply with this order but instead spoke with the child about the schools and the appropriateness of Wightwood School for her.
Transcript of proceedings (Kenefick, J.), May 19, 2004, p. 37.
The parties were in court shortly before their judgment over the dispute as to where the child was to go to school. The hearing was held when school had already commenced in late August 2004. The family had once again been evaluated by Dr. Pruett on that issue over that summer. Dr. Pruett recommended that in the absence of an agreement between the parties, the child stay at her present school Our Lady of Mercy in Madison, Connecticut. In his work, Dr. Pruett interviewed the child and was struck by how prepped she had been to support her mother's statements about OLM. When the guardian ad litem spoke with the child about the school issue, the child verbalized that she did not like her teacher, did not like the Lazer children and wanted to go to another school. The guardian, from the child's words and tone, concluded it was apparent that she was clearly aware of her mother's feelings and position on this issue. After the hearing, the court ordered that if the child was not enrolled by the next day at Wightwood School, the child was to attend school at Our Lady of Mercy. Despite the recommendation and the order, the parties came to an agreement that the child attend Wightwood, where she was admitted the week after the court hearing.
Notwithstanding Dr. Pruett's recommendation of primary residence to the CT Page 11995-j father, the parents in their divorce judgment agreed to a schedule of parenting time/responsibility that split the child's time with her parents on an equal basis. The schedule of access provided an every other weekend schedule with Friday treated as part of the weekend and a weekly schedule of Monday and Tuesday to the mother and Wednesday and Thursday to the father. As to decision making, if the parents could not agree, they were to take the matter at issue to Attorney Michael Perzin who would arbitrate it between them to conclusion, with either party retaining the right to have it reviewed by the court. On the issue of medical decisions, Nicholas Perricone, a medical doctor, was the final decision maker (in the absence of an agreement between the parties.)
This schedule has come to be known as a 2-5—5-2 schedule because each week one of the parents has the child for five days in a row and the other parent has the child for two days.
There were other comprehensive provisions beyond that governing the custodial conduct of the parties, which included extracurricular activities and make up for lost parenting time as a result of travel.
II. The Postjudgment Period
At the time of the original order in this matter, the parties submitted to the court a comprehensive agreement entitled "Joint Parenting Plan." That agreement provided in part, "The parties shall have joint legal and physical custody of the minor child. `Joint legal custody' as used herein shall mean that the parties shall confer in depth with each other on all important matters pertaining to the child's health, welfare, religion, development, and education, including without limitation, and by example only, the choice of school, course of study, choice of camp, medical treatment, therapy, the choice of lessons, sports and extracurricular activities . . . with a view toward arriving at a harmonious policy calculated to promote the best interest of the child. Day to day decisions of a routine nature concerning the guidance and care of the child shall be made by the parent with whom the child is residing at a particular time. If the parents cannot agree, the Husband shall have the right to make the final decision with respect to the child's health, dental and medical treatment (excluding psychotherapy)." The parties also set up an arbitration procedure for issues they did not agree on, the arbitration to be with the child's attorney; the court had the right of review of that decision upon petition of either party.
A. Joint legal custodians
After the date of the dissolution, the parties did not act as joint decision makers. They rarely spoke with each other; they often communicated only through their attorneys. These joint custody provisions were not in the best interests of this child when they were approved by the court (the undersigned). Unfortunately, the court had insufficient CT Page 11995-k information before it at the time of the uncontested dissolution. For instance, it was not disclosed to the court, even at the hearing just before the dissolution, as to where the child should attend school; this was the nature and extent of how bad things were. In Dr. Pruett's interviews regarding the schooling issue, the defendant told him "She felt she could not collaborate with Nick any more about her concerns or suggested solutions because `it was now very awkward to communicate with Nick.'" Further, the court noted in her demeanor that she was combative at times and evasive at times in her testimony on examination by plaintiff's counsel. Her strident tones were most obvious when she was asked about her conduct in dealing with Caitlin's father.
Since the judgment on September 8, 2004, the parties' custodial relationship has been fraught with problems. They utilized the arbitration process on one occasion on September 28, 2004. At that time, Perzin, the child's attorney who was as well the arbitrator pursuant to the judgment, considered several issues including whether anyone other than the parents should be allowed to pick up the child from school when a parent was unavailable. Perzin decided that the plaintiff could designate Eddie Magnotti to pick up Caitlin when the plaintiff was not immediately available to do so if the defendant was also unavailable. Pursuant to the terms of the judgment, that decision by Perzin became operative. Eddie Magnotti is the plaintiff's driver but has also, over the life of Caitlin, played a much larger role in her life. There is a closeness between Magnotti and the child; they share artistic interests and spend a lot of time singing together. On October 25, 2004, when the plaintiff could not pick up Caitlin on his time, he first tried to reach the defendant to see if she would pick up the child. He could not reach her. He instructed Magnotti to go to the school and see if the defendant was picking up her daughter and not to pick her up.
He waited at the school not seeing the defendant. She emerged and said to him in front of others, "Get the f** out of here." Caitlin was standing nearby and heard the balance of the exchange and her mother's follow-up comments. Magnotti tried to explain that he was just there as stand-by in case she had not received the plaintiff's message to her because the plaintiff had not been able to find her. She kept saying over and over, "Can't find me?" in an agitated tone. Magnotti left, leaving in his trail the defendant yelling other unpleasantries.
As explained earlier, the parties were both raised in the Roman Catholic faith. They had planned to raise Caitlin as Catholic when they were together. One of the attributes of Our Lady of Mercy to the plaintiff had been that the child would have been prepared for her first Holy Communion. One of the other issues that Attorney Perzin arbitrated CT Page 11995-l at the September 28, 2004 meeting with the parents regarded religious education. He told them, "Dr. Perricone may take Caitlin to Catechism classes at St. Margaret's Church in Madison, with the understanding that the Lazer family is not involved with the classes and will not be present. Although I do not order that Ms. Perricone take the child to St. Margaret's on the occasions when classes occur or services are held during her access time, I urge that she be supportive of the child's participation in religious study." Instead, the defendant has unilaterally decided to promote religious education of the child in a different faith than had been planned in the past without any consultation with the father. Presently the child is with her mother on alternate Sundays. On her Sundays, the defendant regularly takes the child to the local Congregational Church, which is a Protestant faith. This was done without any prior notice, indeed without any notice at all or consultation with the plaintiff. The defendant sees nothing inconsistent with this behavior and the parties' roles as joint custodians. It is her position that she can do what she wants with the child when the child is with her. This is not illustrative of a person invested in the spirit or practice of joint custody.
In late November 2004, the opportunity came for the plaintiff to have a personal audience with the late Pope John Paul II, to which the minor child was also invited. He attempted to work out taking the child on this trip with the defendant but she steadfastly refused to let him take Caitlin. A court hearing was held on the issue. At the hearing, the defendant's opposition centered around some lost time of the child with her and inconvenience to her plans. Her position was entirely unreasonable. It really centered around her resentment of the plaintiff's power and position in life — that he would have an audience with the Pope — and so her resistance to the power put her emotions before the child's interests. An audience with a respected world leader and religious leader, an opportunity to tour the Vatican and the Sistine Chapel were far more valuable to the child than the petty issues raised by the defendant. The court (Munro, J.) ordered that the child could go with her father to the Vatican.
The court was told that the child's passport was likely being held in the office of her guardian ad litem who was on vacation out of the country. Later at this hearing, the testimony showed that the guardian's office was thoroughly searched to no avail. The defendant then found the passport at her home, just before the trip was scheduled to begin. The defendant asserted in her testimony that the plaintiff failed to provide her itinerary information for that trip. The testimony did establish that the defendant spoke on the telephone with the child numerous times while she was on the trip and did not fear for the child's whereabouts.
Over the Christmas school vacation, the child was with her father in Florida at the Ormond Beach home. There were relatives and friends there as well. On one day there, the child, a family friend Ed Walsh, and the plaintiff's Florida housekeeper, Pat Cornwell, were all in the kitchen. The defendant hates Pat Cornwell because she was called as a witness at the pendente lite hearing by the plaintiff. She resents Cornwell being an invitee of the plaintiff at the Ormond Beach home (which is owned by her) during periods that the plaintiff has exclusive occupancy of that home pursuant to the divorce judgment. Defendant called CT Page 11995-m the home to talk with the minor child and Cornwell answered the telephone. The phone was handed to the child who had been sitting on the counter next to Walsh. She was in her swimsuit. She proceeded to walk in a circle while talking on the telephone with her mother for at least 10 minutes. Walsh noticed that as she was on the telephone that excrement was dripping down her leg. She ran upstairs and hid in a closet. Initially Walsh ran after her to help but then went to get the plaintiff. He quickly went to the child who was in a closet in a bedroom extremely upset at her circumstance and the mess it had made. The plaintiff helped her and soothed her.
For explanatory background information on that property and access issues to it arising out of the judgment see Memoranda regarding those issues in this file, issued this same date.
In her testimony, the defendant described innocent telephone conversation that day with the child. "The trial court has the opportunity to view the parties first hand and is therefore in the best position to assess the circumstances surrounding a dissolution action, in which such personal factors as the demeanor and attitude of the parties are so significant . . ." (Citations omitted.) Weinstein v. Weinstein, 18 Conn.App. 622, 625, 561 A.2d 443 (1989). Ford v. Ford, 68 Conn.App. 173, 188, 789 A.2d 1104 (2002). The defendant asserted that she understood that the child had been unable to control her bowels when she had been busy playing with another child. The defendant's testimony regarding this issue showed little concern for the embarrassment and distress the child displayed to her father when the incident occurred. When she testified, she had her face set in a determined manner and a smug sound to her voice, both of which contributed to the court concluding she was either not credible or not caring for the child in this particular testimony. She said, "she soiled herself that day because she was thoroughly engrossed in play with an older child who was not as respectful of her need to use the bathroom. I know that."
In order to believe the defendant's testimony, the court would have to disbelieve the testimony of Walsh. Walsh was credible in his testimony. The plaintiff's description of the circumstance in which he found the child immediately after the incident was also credible. The court does not know what the telephone conversation was that the defendant was having with the child. Whatever the circumstances were, the child's reaction was very disconcerting and upsetting for her security and sense of safety. Both parents should have been aware of this.
On January 12, 2005 (Wednesday), the defendant called the plaintiff's attorney's office and spoke with legal assistant Niki Federman, who documented the phone call immediately after it occurred. The defendant called threatening to destroy property of the plaintiff and exercise total control over the plaintiff's use of the Ormond Beach property if certain things did not occur as she wanted them to. Over the days CT Page 11995-n prior to Martin Luther Day weekend (January 15-17, 2005), the plaintiff tried to arrange with the defendant the use of the Ormond Beach home for himself and the child. The defendant refused inasmuch as she intended to use the home with her boyfriend, Ralph Gogliettino. She did not utilize the property that weekend. While these incidents were not relevant to the custodial issues, they provide a bird's eye view of the defendant's emotional state in dealing with the plaintiff and a back drop for other conduct by her about 10 days later that month. As makeup time pursuant to the judgment, the plaintiff sought time on Friday January 21 to Saturday, January 22, 2005. While not saying an absolute no, the defendant sent an email to the plaintiff which said, in part, the following: "I still have not received confirmation that you understand that Caitlin has had a longstanding playmate with a friend in her class at Wightwood . . . Please bear in mind that it is particularly embarrassing as well as upsetting to Caitlin when she and her friend have finally managed to schedule a play date only to be left hanging when she can't confirm whether she will be able to attend or not." This is ridiculous. It is abundantly clear from the email and the defendant's testimony that the defendant schedules the child's play dates. If it would have been embarrassing to anyone it's the defendant.
"Ms. Perricone demanded that her jewelry be returned to her by noon tomorrow. IF not, Ms. Perricone will decide which 90 days out of the year Mr. Perricone can use the house in Florida, and she will make sure these dates are not convenient for him. She plans on calling the Town Police of Meriden and Tony Piazza because she considers this withholding of her jewelry to be theft . . . If either he or Patricia Cornwell are found on her property again without prior notification, she plans on destroying all of her ex-husband's belongings that are on the property at said time including his Porsche."
That email was sent on a Friday. That was a part of a 5-day cycle when Caitlin was with her mother. On the following Wednesday, January 26, 2005, the defendant contacted the Department of Children and Families (DCF) on their hotline number inquiring about the plaintiff. She couched the call as a seemingly innocent inquiry. The inquiry resulted in a full DCF investigation in which the child had to be interviewed by DCF at the police station. She then was interviewed a second time by DCF as a part of the process. Her school was also involved; so much for that being her safe haven away from the parental battle. The defendant claims not to know that the investigation would ensue from her telephone call to DCF. The court does not believe this. The defendant is a bright individual with substantial credits towards a Master's Degree in counseling in Connecticut. Further, whenever the defendant wants to know about something, she has shown herself capable of, and inclined to, research and learn about it. She claimed in her call to DCF to have just wanted their opinion on an issue she said she had been trying to bring to the attention of the court for the last 18 months. The defendant's demeanor when she testified about this issue was highly defensive. Her testimony as to her intent in calling DCF was simply incredible. She was angry at the plaintiff, she had been for a long time, and the couple of weeks before that, culminating in this phone call to DCF, had been peppered with hostile and manipulative communications by her.
The defendant also claimed in calling DCF that she just wanted an CT Page 11995-o opinion from DCF on a question she posed as to the plaintiff and child's sleeping arrangements. However, a review of the DCF records, shows that in the reporting to DCF, the defendant was intent on attacking the plaintiff. She alleged that the plaintiff was sleeping with his daughter and that the behavior was weird and had "inappropriate boundaries." She alleged other conduct including that he used to shower with his daughter, and watched pornography with underage children. After that initial reporting to DCF by the defendant, in a follow up conversation that same date, she told the DCF worker that she "is concerned and alarmed" by the conduct she described regarding showering. While she denied accusing the plaintiff of molesting his daughter, she told DCF that Caitlin had no voice in the custody case in the court.
After initiating this process, the defendant lied to DCF about her own circumstances. She denied having a boyfriend; Ralph Gogliettino was her boyfriend at the time and she was spending substantial time with him, including when the child was with her.
After DCF performed its investigation, it concluded that the allegations of the defendant were unfounded and the result of the custody battle in the courts. It closed its file. Of interest were some observations made during its investigation. During this trial, the plaintiff told the court that he is concerned that the defendant keeps the child on the run throughout her time with her, that there is no down time for the child and the child does not eat well when she is with her mother. He says that when the child returns to him her pallor is off and she looks thinner and wan; by the time the child has been with him she is restored and has a better color. Given the plaintiff's professional interests in skin and health, the court discounted this testimony initially. However, it was striking that the DCF worker investigating the defendant's complaint recorded as part of her initial narrative that when she interviewed the child on January 27, 2005, "Child appeared to have some problems with her language and reported that she did not remember things. Child appeared to be very yellowish in color." The child described her fun time with her mother as including many activities and her fun time with her father as time at home with him. When the DCF worker went to see the child at the father's home on February 15, 2005, the worker noted in her narrative, "Child appeared to look alert and her coloring appeared to be better as her cheeks were rosy and the child appeared healthy."
At the time that DCF's investigation was active from late January, to late February 2005, the issue of Caitlin not being in therapy was prominent as well. She had been in therapy with Dr. John Collins. That therapy ended some time in the fall of 2004. The guardian ad litem CT Page 11995-p testifiedthat the defendant did not think that Dr. Collins had a good rapport with the child. In January or February 2005, the guardian spoke with Dr. Collins and at that time he indicated he thought the child might do better with a female therapist. A therapist (Dr. Diane Dodge) was finally selected in March 2005. Dr. Perricone, for a period of approximately two months right through this court hearing, failed to make an appointment for the necessary interview of him by the therapist before she would work with Caitlin. His excuses were lame: he was playing telephone tag with the therapist, he was very busy with the pressure of finishing a book for work, and, that he was resisting it because he really preferred Caitlin be in therapy with Dr. Collins who he felt had been helpful to Caitlin. The end result was that Caitlin has been without therapeutic support.
Over February school break, 2005, the child was in Orlando, Florida with her mother, Ralph Gogliettino, his mother Joan Gillette, and several other family members. The plaintiff was also in Florida on his own trip. The child became ill and it was necessary for the defendant to take her to the emergency room of the local hospital. She contacted the plaintiff to let him know. He indicated that he wanted to take the child back home to Connecticut and care for her. The plaintiff flew to Orlando on a private jet he utilizes. While in the emergency room, the defendant called the child's guardian ad litem to ask her whether or not she had to let the child go with her father. When she called the guardian ad litem, she knew that she had joint legal custody; she also knew that as to medical matters, the plaintiff was the final decision maker under the judgment. The guardian told her that the plaintiff is scared about Caitlin's illness just like you and he is a doctor so let him come and help and if he wants to take her home let him and listen to him. When the plaintiff arrived at the emergency room, he was greeted by Joan Gillette (who he knew well as a former patient of his medical practice.) He was not permitted in the back area of the emergency room with his daughter, nor did anyone come and get him from back there. When the defendant came out with the child in her arms, he briefly took the child and hugged her as well. The child had pneumonia. He again told the defendant that he wanted to fly the child back to Connecticut with him and he would take care of her. She refused to let the child go with him and she left with the people she had come with. Ms. Gillette and the plaintiff spoke on their cells and it was decided that he would fly the defendant and the child back on his jet. He did so. In Connecticut, the child was taken by her mother to Ralph's home, though the plaintiff did not know that.
Throughout the postjudgment period, defendant never told the plaintiff that she had essentially stopped living at the North Guilford residence with the child; she did not tell him where they were staying when the CT Page 11995-q child was with her. Further, she lied in her testimony regarding where she had been living and staying in the postjudgment period. On May 9, 2005, at the commencement of this hearing, the defendant testified that she and the child "use the Guilford" home except on one occasion when the child was sick in February 2005; in that same testimony she said she stays there when Caitlin is with her except on weekends and holidays. On subsequent days of the hearing, after it was clear a private investigator would testify on behalf of the plaintiff as to where the defendant stayed with the child, she conceded she did not stay at the Guilford home in the entire time period except a few times, but often stayed at her boyfriend Ralph Gogliettino's home.
On matters of disputed fact before the court where the defendant's credibility is at issue, this court has determined that she will lie when she finds it expedient and therefore her testimony is not credit worthy. It is hard for the court to find the defendant credible in light of her deceptive testimony before the court on something as essential as where she lived with the child on her parenting time postjudgment until she bought her home in Branford recently.
The plaintiff has failed to follow through on meeting with the proposed therapist for the child despite his own admission of the need for the child to be in therapy. The dilemma for the court is whether these instances, as well as the general inability to communicate or respect each other, both of which are necessary for joint legal custody, result in a material change of circumstances or just `more of the same' of what existed at the time of the dissolution. This court is constrained to conclude that if the environment of the parties was so poisonous as to be inappropriate for joint legal custody at the time of the dissolution, the lack of material change should not act as a prophylactic to its ability to consider and decide what is in the best interest of this child. The rationale behind the `material change' rule is that there is an inherent importance and value in the finality of judgment and the end to litigation, not only for the court, but more importantly for the parties and the child. That inherent value cannot rule where the court finds that the circumstances of the parties put the child in serious risk of continued emotional harm if the current court orders remain.
The evidence supports that the plaintiff is an able and competent parent. When the defendant was interviewed by Dr. Pruett, she gave no criticism of the plaintiff as a parent, though she thought he was stricter than her. He is a very busy and very successful public figure. The defendant, throughout these proceedings, has asserted that this custodial struggle is all about power and the plaintiff's ability to assert his wealth and power to prevail in these proceedings. While CT Page 11995-r this wealth and power is not a basis upon which to favor the plaintiff as a custodial parent, neither is it an inhibitor or bar.
One of the things that the defendant did not like about Our Lady of Mercy is that the plaintiff had donated approximately $300,000.00 to the school. As the guardian noted, the defendant should not resent that the plaintiff is generous with his funds. All generosity is not to buy loyalty. Part of the plaintiff's image of himself is as a generous person, and so, being able, he is. The plaintiff is financially supporting construction of an orphanage in Brazil which resulted in the Pope's blessing to him. The defendant resented his ability to bring the child on this trip. When a mother of a friend of Caitlin's testified at trial she indicated that the youngster was not coming back to Wightwood next fall. After the mother's testimony, when the plaintiff heard it was a decision because of finances, he offered the mother to seek a scholarship he offers through his foundation. This is something that would NEVER have come to the attention of the court except that the defendant elicited the testimony on this from the plaintiff, clearly inferring in the questions that there was something wrong with it. This generosity could not have been for the benefit of the court; the court would not have known about CT Page 11995-aa it if the defendant had not brought it up. Power through money can not buy a result in these proceedings. As the guardian testified, the defendant must get over her feelings about it. It is not helpful to the child for her mother to resent this characteristic of her father.
The psychological testing performed in late 2003 to early 2004 found that the plaintiff performed best when in a predictable and familiar routine. This high performance seems to deteriorate when faced with changing and unfamiliar perspectives. While he was well adjusted and open in the process of evaluation, his psychological profile led to the conclusion that his problem solving can become rigid and impulsive when faced with a stressful and anxious situation. This personality trait could likely interfere with his ability to successfully engage in the collegiality of the joint problem solving which is implicit in joint custody.
While the psychological testing indicates that the defendant's psyche may be better able to listen to another's point of view in a way that lends itself to joint custody co-operation, the court finds that her animosity and continuing anger and bitterness toward the plaintiff have overcome her better abilities in this realm. Her hostility toward the plaintiff has overpowered her ability to engage her substantial psychological skills. In every instance where decision making has been at odds, the plaintiff, who may be less adept at accommodating other's views, has yielded to the defendant because he has been guided by and disciplined to reducing the conflict with her so that Caitlin is not harmed any further. Where joint custody has failed and there has been disagreement, the plaintiff has yielded over and over to the will of the defendant.
The defendant points out how well Caitlin is doing at Wightwood as an indicator of the appropriateness of that decision. She argues that she knew all along that her daughter would excel at a school that was closer in philosophy to the Montessori pre-elementary school she had attended before Our Lady of Mercy. Indeed, Caitlin is excelling at Wightwood. Her mother avidly supports it and is an engaged active parent. Her father supports it as well and attends her events there. The court finds it much more likely that Caitlin is excelling at Wightwood because both of her parents are supportive of her there. At Our Lady of Mercy, Caitlin did well but at the September 28, 2004 meeting did not flourish in the same way because she was burdened with her mother's bad behavior and constant undermining of her experience there.
The plaintiff seeks sole custody of the child with an order that the defendant "be consulted with respect to major decisions pertaining to the child's education, health and welfare, but the plaintiff shall make the final decision." He also proposes a schedule of visitation of alternate CT Page 11995-s weekends of Saturday and Sunday, Wednesday weekly (after school) to 7 pm and an alternating or sharing school vacation and holidays schedule with one (later two) week(s) in the summer.
The defendant opposes the plaintiff's effort to gain sole custody. In the alternative, if the court is going to order sole custody to one party, the defendant seeks it be her. She asserts that she is more able now, and ready to work in a co-operative manner with the plaintiff. In the last 4 weeks before this hearing commenced, the defendant communicated with the plaintiff on occasion by email which she points out as a willingness by her to communicate with the plaintiff. The court finds this effort at communication disingenuous and only designed to gain the court's support for her position, not part of any real sustained effort by the defendant to repair her inability to work with the plaintiff as a joint custodian.
The parties stipulated that the defendant was diagnosed as having "a mild bipolar disorder" and that she was compliant with her medication regime and saw her treating psychiatrist regularly. The defendant, throughout these proceedings both before the dissolution, before her hospitalization and treatment with Dr. Corwin, and during her treatment with him and stabilization on medication and postjudgment, has continually allowed her anger and bitterness toward the plaintiff get in the way of exercise of the best judgments for the minor child. There is no doubt that she is an active, interested parent. She has found activities for the child that Caitlin likes; she attends to these activities and volunteers at the school with great enthusiasm. She has shown interest in providing the child with many stimuli to enhance her development. At the same time, she has caused the child continuing harm by involving her in the adult conflict. While the defendant is this interested, engaged parent, she has not consistently attended to some of her basic responsibilities. The minor child was late to school over twenty days this academic year; all but one of those days was on time that the child was in her care. When examined about this, the defendant demurred that it was a long way from the house in North Guilford to the school in Branford. The problem with that answer is that she and the child only rarely stayed at the house in North Guilford for much of the academic year.
Dr. Pruett's third report (second update) was largely the basis of his testimony at trial. He recommended the court continue the present custodial arrangement but also appoint a mental health professional as a parenting coordinator to arbitrate the parents' decision making for the child. He recommends this largely because he is profoundly aware of Caitlin being very hypervigilant over her parents being treated in an CT Page 11995-t absolutely even handed way on the issue of custody. This position of the doctor's is troubling to the court. Caitlin is only seven years old. Her opinion and views, while important to know for her state of mind and emotional health, are not sufficiently mature to be considered when the court seeks to determine what custodial arrangement would be in her best interests.
The guardian ad litem testified at trial. She had been appointed at the inception of this dissolution of marriage. She has been very frustrated by the difficulty she has experienced with the defendant co-operating with make up time for the plaintiff when he has been away on his parenting days. She points out that the plaintiff works and the defendant does not and that it is a simple fact that the plaintiff's work will require him to travel and the defendant knew the make up time was part of the judgment. From September 2004 forward she experienced repeated problems with the defendant on this issue. She has assumed it is because of the defendant's continued anger toward the plaintiff. The guardian saw the defendant's objection to the Vatican trip as a way to get back at him since he really wanted to take the child.
In her testimony, the guardian supported Dr. Pruett's recommendation that the parties' custodial arrangement should not change and they should utilize a parenting coordinator. One reason is that she felt that Dr. Perricone did not give co-parenting (joint custody) enough time to work, having filed his motion for modification only two months after the judgment. The court notes however that the parties have been joint custodians since March 2004 — well over one year of this youngster's fleeting childhood, and it is not `working' as is clear by the facts in this decision.
The guardian agrees with Dr. Pruett that the child is hyper-vigilant — or as she put it, `over the top' in sensitivity that her parents be treated equally. The child knows too much about this court conflict and a lot of this information has come to her from her mother. The guardian believes that Dr. Perricone has shown through his words and deeds that he no longer has hostility towards Ms. Perricone; she believes that he is pursuing this court action to end the constant fighting. On the other hand, the guardian believes that Ms. Perricone is not yet able to give up battling and that the child is suffering for that.
The guardian also pointed out that the way the parties spend time with Caitlin is complementary: her mother provides her many activities, exploring creative arts and dance while her father provides her down time where she can recharge her batteries and spend time just talking with and being with her father. Ultimately, the guardian recommends that the court CT Page 11995-u keep things as they are and appoint a parenting coordinator to work with the parents, not because she believes it is the best thing for Caitlin but because she cannot come up with a better solution.
The defendant is angry and claims that the plaintiff has fought this custody battle lording his power and money over her. Both parties as a result of the dissolution are wealthy beyond the normal person's ken and able to finance this litigation ad nauseum. Indeed the pendente lite litigation was an obscene display by the plaintiff of his ability to retain seemingly endless strategic resources — but he stopped and agreed in March 2004 to joint custody. It is from then to this point that the defendant is the one who has not been able to stop.
Dr. Pruett and the guardian ad litem both acknowledge that joint custody is not working. Dr. Pruett frets that this child is at emotional risk at least in large part because of the tension between her parents. The joint custody feeds that tension because it does not work. Why would this court order these parties to work with a parenting coordinator? So that conflict can continue over the most basic issues as well as the most trivial ones? So that the defendant can continue to ignore the coordinator's advice — as she did with the issue of religious education, and bully the plaintiff into agreeing with her — as she did in the choice of school and into acquiescing to her choice of pediatrician?
The attorney for the child has advocated a position that has been verbalized by the child to her and to Dr. Pruett — that she wants her parents treated equally. This court resists the urge to collapse around this recommendation as the easiest course because it is so clearly not in this child's best interest. Dr. Pruett acknowledged in his testimony that Caitlin is clearly at risk emotionally in her present circumstance. This court has a duty to put an end to the conflict that continues; Caitlin would benefit from a circumstance where one of her parents made the important decisions necessary for her healthy upbringing. She should not suffer from continually being exposed to the fact that they cannot make decisions co-operatively. Her time with each parent should be free of the issues that adults should discuss privately amongst themselves. Her mother has not demonstrated an ability or inclination to keep her out of these adult issues. Her time with her mother is valuable. She is deeply attached to her and loves her, just as she is deeply attached to her father and loves him. This court can only in its orders provide the opportunity for the child to live without continued conflict. It is ultimately up to each of the parents whether they will respect Caitlin's right to enjoy her childhood.
B. Further findings and orders CT Page 11995-v
The court finds that the custody orders entered at the time of the dissolution of marriage were not in the minor child's best interest then and are not in the minor child's best interest now and therefore modifies the court judgment. The court finds that the plaintiff is more likely to consider and take into account the defendant's views and is more likely to ensure the child's continued contact with her mother than the mother would with the father. The court finds that the defendant is likely to disregard the plaintiff's views if she has a choice to do so as a sole custodian, for she repeatedly did it as a joint custodian. The court finds that the defendant is likely to be less adaptable to the child's need for continued contact with her father if she were sole custodian. The court finds that the plaintiff is more likely to be considerate of the opinions of the child's service providers and teachers even if he disagrees with them initially, than would the defendant in similar circumstances. The court finds that the lack of veracity of the defendant before the court has undermined her assurances to the court that she is now ready, willing, inclined and able to consider and be respectful of the plaintiff as a parent. The court finds that the defendant's own conduct has fueled the plaintiff's lack of trust in her. A custodial order which insulates the plaintiff from the defendant constantly manipulating matters to her benefit and world view will help him treat her generously as a parent. This undoubtedly will benefit the child.Counsel for the minor child and the guardian ad litem presented their time sheets and invoices updated through portions of the trial and estimated the time in addition for the balance of the trial. The guardian ad litem estimated that she was owed approximately $23,000 plus two additional trial days' time and the attorney for the minor child estimated he was owed approximately $40,000 plus additional trial time. Neither party objected to the hourly rates or time expended by either and agreed to continue to pay those bills as they have previously, one-half each. Dr. Pruett testified as to the additional amount he was owed for his trial testimony. Neither party objected to the amount or its reasonableness.
The court opens and modifies the judgment between the parties with the following orders:
1. As to the existing judgment which incorporates by reference the document entitled Joint Parenting Plan, the following numbered paragraphs of that document are eliminated and therefore no longer a part of the modified judgment and accordingly, no longer court orders: paragraphs 1, 2,4, 5, 9, 10, 14, 19, 21, and 25 are eliminated. CT Page 11995-w
2. The court orders sole legal custody of the minor child with the father.
3. The minor child shall reside primarily with her father. She shall be parented by her mother on the following weekly schedule:
Wednesday at 9 a.m. or from school when school is in session overnight to Thursday at 7 p.m., and, every other week that time shall extend to Saturday at 7 p.m.
The mother, or her designee shall pickup the child at the commencement of her parenting time and the father, or his designee shall pickup the child at the commencement of his parenting time.
4. The following provisions of the Joint Parenting Plan Document of the judgment are expressly continued and adopted by this court as part of these comprehensive custody orders: paragraphs 6, 7, 8, 11, 12, 13, 15, 16, 17, 18, 20, 22, 23 and 24.
5. The parties shall alternate school vacations such that the father shall have the child for February vacation in odd-numbered years and April vacation in even-numbered years and themother shall have the child for February vacation in even-numbered years and April vacation in odd-numbered years. If the child attends a school that has only one vacation (typically in March) then the father will have the child with him for that vacation in odd-numbered years and the mother shall have the child with her for that vacation in even-numbered years.
6. Each parent shall have at least four weeks, no more than two weeks of which may be consecutive, of vacation with the child during the summer months. The mother shall notify the father of her summer vacation schedule by February 1 in odd-numbered years and by January 1 in even-numbered years and the father shall notify the mother of his summer vacation schedule by January 1 in odd-numbered years and February 1 in even-numbered years. These notification dates are intentionally early to allow each party sufficient time for camp and tour reservations before they fill up.
7. The defendant may continue the child's current extracurricular activities on her time; any other extracurricular activities shall not be added without the permission of the plaintiff.
8. If the father is required to travel overnight on an evening the child is with him, he shall give the mother the opportunity to care for the child while he is away. CT Page 11995-x
9. As both parties and the guardian ad litem testified and the forensic evaluator recommended, it is in the minor child's best interest to be in a therapeutic relationship; therefore the plaintiff shall ensure that the minor child is immediately engaged in therapy with Dr. Dodge. If he fails to accomplish this by September 5, 2005, the court would consider that his actions were not in furtherance of the best interests of the child.
10. The parties shall be entitled to have daily telephone access with the child while she is with the other party, by calling the child between the hours of 7:00 p.m. and 8:30 p.m. If the caller is unable to speak with the child, the caller shall leave a message and the child shall return the call within one hour. Daily, the telephone call shall not exceed 15 minutes in length. The child shall be able to call either parent.
11. Nothing in these orders is to be construed as limiting either parent from participating as a volunteer at the child's school or as a part of any extracurricular activity with which she is involved, as long as the supervising authority of the school or activity permits such involvement. The court expressly understands that this may result in contact by and between the child and a parent at times other than those provided for in these orders; such contact is expressly permitted under these orders.
12. The undersigned court will, until further order, retain jurisdiction over custodial issues that may arise in this case.
13. The parties have each agreed, and it has been previously ordered that the guardian ad litem's fees be shared equally. The outstanding balances shall be paid within 30 days. Dr. Pruett's outstanding balance shall be paid one-half by each party and shall be paid in full within 30 days.
III. Other Motions
The plaintiff also filed motion to adjudge defendant in contempt (# 274) postjudgment dated October 27, 2004. In that motion, the plaintiff seeks a finding of contempt for the defendant keeping the child with her on that date when it was not her parenting time and she did have the plaintiff's permission. That date was when both the defendant and Magnotti were at the school for the child's pick up. The plaintiff also filed a motion for modification of judgment (#275) on October 27, 2004 seeking a change in the judgment terms about who can pick the child up at the school. In light of the orders entered by the court in the modification CT Page 11995-y of the judgment, no practical relief is necessary under either of these motions. Therefore, in the discretion of the court, both of these motions (#274 and #275) are denied.
The plaintiff also filed motion for modification postjudgment (# 289) dated March 24, 2005. This motion sought modification of the judgment to address issues surround times when the school was not in session. In light of the orders entered by the court in the modification of the judgment, no practical relief is necessary under this motion. Therefore, in the discretion of the court, motion (#289) is denied.
The defendant filed motion for contempt postjudgment (#299) dated April 25, 2005 seeking a finding of willful contempt by the plaintiff of court orders regarding his April vacation with the minor child. The defendant asserts that the plaintiff failed to give the detailed itinerary notice required by the judgment for his vacation trip with the child. There was evidence from both parties about their conduct surrounding the plaintiff's vacation with the child at the Ormond Beach home over April break. Nothing in the evidence that the court heard would lead the court to conclude that the plaintiff willfully violated the itinerary notice provisions for that vacation. The motion is denied.