Opinion
No. FSTFA 05-4004889 S
April 13, 2006
MEMORANDUM OF DECISION ON DEFENDANT'S EMERGENCY MOTION FOR TEMPORARY CUSTODY DATED APRIL 10, 2006
This is a Memorandum of Decision on Defendant's Emergency Motion for Temporary Custody, Pendente Lite dated April 10, 2006. The motion addressed an incident that occurred in Westport, Connecticut on January 19, 2006. The defendant, Peter F. Tauck, was arrested on April 7, 2006 on a warrant arising out of that incident. This court was already in session hearing Motions filed by both parties each seeking Pendente Lite custody of the four minor children issue of this marriage when this motion was filed. The court immediately held a full-day evidentiary hearing on April 11, 2006 on the April 10, 2006 motion. Both parties, their counsel of record and the attorney for the minor children all participated. Both parties and the parties' supervisor, Joseph Rivera, testified and were cross-examined.
The court, after hearing the testimony offered and the evidence, considering the exhibits, the evidence and testimony in the current eight-day custody hearing, the exhibits admitted in that hearing, the claims of law and claims of fact, finds the following:
(1) This incident was alleged to have occurred at 7:00 AM on the morning of January 19, 2006 in the marital home of the parties at 272 Hillspoint Road, Westport, Connecticut. The plaintiff, Nancy S. Tauck, reported this incident to the Westport Police Department on the afternoon of January 19, 2006. Mrs. Tauck furnished a 2-page signed statement to the Westport Police Department on the afternoon of January 19, 2006, a copy of which was marked in evidence before this court. Despite the fact that the Westport Police Department had "speedy information," in accordance with General Statutes section 46b-38b(a), Peter F. Tauck was not then arrested by the Westport Police Department. The court concludes that the investigating officers did not determine that a family violence crime had been committed as alleged by Mrs. Tauck in her written statement.
(2) Mrs. Tauck physically demonstrated in her testimony before this court how the alleged assault occurred by lifting her hand and silently, slowly and softly placing it on the front of her chest near her right shoulder. Such an occurrence is not a violation of any statute in Connecticut. State v Miranda, 274 Conn. 727, 759-62 (2005) (Vertefeuille, concurring).
(3) Such an occurrence is not a violation of the Protective Order issued in CR 05-01096995. State v Gaymon, 93 Conn.App. 569, 573 (2006).
(4) This court does not find Mrs. Tauck's testimony or her January 19, 2006 statement furnished to the Westport Police Department credible for the following reasons:
(a) She testified that the alleged assault occurred three times yet her written statement says two times.
(b) She characterized the alleged assault in her direct examination as "slammed" instead of "hit" as in her written statement.
(c) Although the alleged assault occurred at 7:00 AM she did not report this matter to the Westport Police Department until that afternoon.
(d) Although the alleged assault occurred at 7:00 AM and she drove to downtown Westport that morning, she did not go to the Westport Police Department until that afternoon.
(e) She did not offer any evidence or testimony that she suffered any injury in the alleged assault.
(f) She did not offer any evidence or testimony that she was treated at any time by any hospital or health care provider at any time after the alleged assault.
(g) She did not offer any evidence or testimony that she felt any pain as a result of the alleged assault.
(h) Mrs. Tauck was in the middle of a contested custody proceeding and the further arrest of Mr. Tauck could have aided her efforts in that custody proceeding.
(i) She hired a lawyer specializing in criminal matters to monitor the Westport Police Department after January 19, 2006.
(j) Automatic video surveillance of the interior of the marital home at 272 Hilispoint Road, Westport, Connecticut had been installed during this contested custody proceeding with the knowledge and consent of both parties and their counsel. Mrs. Tauck viewed the resulting CD of the January 19, 2006 video and she testified before this court that the alleged assault did not appear in that video even though the parties and the kitchen area appeared in the video. This court did not have expert testimony of whether or not the video was on 24/7.
(k) Her January 19, 2006 statement to the Westport Police Department noted the body location of the alleged assault. She made two or three ink changes to the body location in that written statement. The final statement read:" he hit me in a rage 2 X on back shoulder." Mrs. Tauck testified before this court that the alleged assault occurred to her shoulder and she further demonstrated the exact area in the manner set forth in paragraph 2 hereof. Her in-court testimony before this court differed from the January 19, 2006 written statement.
(l) She did not file an application for a civil Restraining Order under General Statutes section 46b-15.
(m) She did not file a motion in this underlying litigation after January 19, 2006 claiming affirmative relief or seeking sanctions.
(n) The only motion filed in this litigation by Nancy S. Tauck addressing the January 19, 2006 incident was the Motion for Order Re Surveillance System dated February 16, 2006 (#333.00). This motion requested relief in the form of production and did not address the need for any court orders preventing or sanctioning the alleged assault of January 19, 2006.
Peter F. Tauck testified at the hearing on the Emergency Motion and was cross-examined as to the January 19, 2006 incident. He testified: that he was preparing breakfast for his family in the kitchen on January 19, 2006, there is a "short passageway between the stove and the sink." "As I passed Nancy at the sink", "I put my hand on her shoulder as I moved passed her if she backed up from the sink she would have bumped into me." This testimony dovetails with the in-court demonstration conducted by Nancy S. Tauck in paragraph 2 hereof and further buttresses this court's credibility finding.
Joseph Rivera testified. He is a retired New York City police officer who has been hired by the Tauck family to provide security in accordance with the September 8, 2005 court order. He furnished a written statement to the Westport Police Department on January 19, 2006. He did testify that he saw Peter F. Tauck slap Nancy S. Tauck on the shoulder and told Mr. Tauck shortly thereafter that that "Was not a good idea." On cross-examination Mr. Rivera admitted telling Mr. Tauck that he in fact did not see the incident. In addition Mrs. Tauck testified that she listened to the audio portion of the CD and the statement "Was not a good idea" was not found on the CD. Under these circumstances this court cannot use Mr. Rivera's testimony to counter this court's finding of lack of credibility on the part of Mrs. Tauck as to the January 19, 2006 incident.
This is a dissolution of marriage action returnable to this court on May 31, 2005. Until August 4, 2005 neither party filed any documents, motions or request with the court. From and after August 4, 2005 the parties have filed various pleadings that are now coded in eight separate file folders. The last pleading filed is number #378.00. In the past eight and one-half months over 278 motions and documents have been filed with the court. This is a massive, complex, hotly contested and evolving custody and financial litigation. At times there have been ten lawyers in court representing the various interests that may be impacted.
Shortly after Mr. Tauck's arrest in August 2005 in CR 05-0109699 S and the criminal court's issuance of a Family Violence Protective order dated August 29, 2005 (P1 and P2 only), this court conducted a pendente lite custody and exclusive possession hearing. The parties were able to reach an agreement. The Stipulation was signed by the parties, their counsel and the attorney for the minor children. The Stipulation is dated September 7, 2005 and became the current pendente lite order on September 8, 2005 (#163.10). A copy of this court order is attached to this Memorandum of Decision. The morning of January 19, 2006 was a period of the parties' co-residency in the marital home in accordance with this court order. This court is currently hearing evidence in regard to changes in said September 8, 2005 court order based on Motions filed by both parties.
As the trial judge I have presided over most of the contested issues, many of which have required the parties and others to testify. The Presiding Judge has assigned this file to me. This court is now in the midst of a contested pendente lite custody hearing that began with testimony on March 15, 2006. Today is the eighth day of that hearing and four more hearing dates have been scheduled.
This court ordered a private custody study to be performed. That private custody study has been completed and the 65-page report has been filed with the parties on March 1, 2006. The deposition of the doctor who conducted the private custody study is ongoing and will be completed next week.
This court has already referred this matter to the Regional Family Trial Docket (RFTD) in Middletown and the proper forms have been transmitted to the Presiding Judge. This court has entered an extensive Scheduling Order in order to prepare this case for resolution by the RFTD.
Peter F. Tauck has requested three claims for relief in his April 10, 2006 Emergency Motion. The first relief requested states: "That this Court communicate with the Judge in the G.A. No. 20 Court requesting that no orders be entered by the G.A. Judge that affect the care and custody of the minor children and that the two courts communicate with each other regarding any orders:" The attorney for the minor children has joined in this request. Mrs. Tauck is opposed. This court has read a Memorandum submitted to all Judges dated June 2, 2004 jointly signed by the Chief Administrative Judges, Criminal Division and Family Division. In accordance with the procedures set forth in that June 2, 2004 Memorandum this court must deny the first claim for relief. The G.A. Judge in G.A. 20 is free to contact the undersigned if that Judge so believes that such a contact is necessary in the interests of justice.
Peter F. Tauck has requested two other claims for relief in said April 10, 2006 Emergency Motion. This court will take those two remaining claims for relief under advisement and render a decision thereon at the same time this court decides the current pendent lite custody issues now on trial.
STIPULATION
1. The children shall reside at 272 Hillspoint Road, Westport, Connecticut, and neither parent shall cause the children to be away from that home overnight, subject to the provisions of paragraphs 4 and 5.
2. The Plaintiff shall reside at 272 Hillspoint Road, Westport, Connecticut.
3. The Defendant may reside at 272 Hillspoint Road, Westport, Connecticut only as follows:
a. Each Monday from 3:00 p.m. until Tuesday when he may return the children to school or, if school is not in session, at 9:00 a.m.
b. Each Wednesday from 3:00 p.m. until Thursday when he may return the children to school or, if school is not in session, at 9:00 a.m.
c. Every other Friday from 3:00 p.m. until Saturday at 3:00 p.m. The Defendant's first Friday shall be September 9.
d. Every other Saturday from 3:00 p.m. until Sunday at 3:00 p.m. The Defendant's first Saturday shall be September 17.
e. December 16 from 3:00 p.m. until December 18 at 3:00 p.m.
f. December 20 from 3:00 p.m. until December 22 at 3:00 p.m.
g. December 24 from 9:00 a.m. until the family leaves for Lake Placid on December 27.
h. October 31 from 9:00 a.m.
4. The Defendant shall have Colin, Curtis and Charles on October 7 at 3:00 p.m. until October 10 at 5:00 p.m., and he may take them away from 272 Hillspoint, overnight. Joseph Rivera or other mutually-agreed upon child care person by both parties, in writing, in advance, shall accompany Defendant and shall be present at all times.
5. The Plaintiff and Defendant and the four children shall travel to and reside at Lake Placid from December 27 through January 2.
6. The Defendant may be at 272 Hillspoint Road on the children's birthdays from 3:00 p.m. until 10:00 p.m.
7. Subject to paragraph 4, each party shall ensure that Joseph Rivera, Ruth Perez, or some other mutually-agreed upon child care person is present with the children at all times, regardless of whether the children are in or out of 272 Hillspoint Road and regardless of whether either or both parents are present. The children shall be put to bed and bathed in the presence of Joseph, Ruth or the Plaintiff.