Opinion
LLIFA044000238S
11-25-2015
Bryan Tyrian v. Jennifer Tyrian
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO MODIFY (#132), PLAINTIFF'S MOTION FOR CONTEMPT (#134), DEFENDANT'S MOTION TO MODIFY (#136), AND DEFENDANT'S MOTION FOR CONTEMPT (#137)
John D. Moore, J.
The parties have filed competing motions for modification and motions for contempt. For the reasons that follow, the court denies both parties' motions for contempt in part and denies in part both parties' motions to modify.
FACTUAL AND PROCEDURAL HISTORY
The plaintiff father filed a motion to modify (#132) on February 20, 2014, seeking to modify the existing parenting plan. This motion claimed that the present plan was no longer in the best interests of the minor child. This motion requested that the plaintiff have equal decision making authority with the defendant mother for medical, school, and religious education issues. This motion further sought permission for the plaintiff's new wife to pick up and drop off the minor child and for the plaintiff to drop off the child at school on Monday morning following his visitation weekend, rather than at the defendant's house on Sunday evening at 6:00. This motion additionally sought decision-making authority for the minor child regarding sports and family events, and sought to re-designate time with the plaintiff's new wife as the father's visitation time, rather than time in which the plaintiff is unavailable and over which the defendant would have a first option to care for the child. Finally, this motion requested that the plaintiff have vacation time with the minor child during his employer's two week summer shut-down, that the defendant use Our Family Wizard, and that the defendant refrain from making disparaging remarks about the plaintiff.
Although this motion identified the parenting agreement dated January 19, 2005 (but entered as part of the judgment of dissolution by the court on February 9, 2005) as the parenting plan to be modified, the relief requested pertained to the more recent parenting agreement of September 17, 2008. Further, the facts adduced as evidence during the hearings on this motion applied to the September 17, 2008 agreement in several regards. Therefore, the court will consider the reference to the January 19, 2005 plan to be a typographical error and will treat this motion as a motion to modify the parenting agreement of September 17, 2008.
The plaintiff filed the next motion in this matter, a motion for contempt--postjudgment (#134), filed on November 3, 2014. This motion claimed that the defendant violated Paragraph 1.8 of the September 17, 2008 parenting agreement by introducing the minor child to a " casual paramour" and by having overnight stays with the casual paramour when the minor child was present.
The defendant countered with her own postjudgment motion for modification (#136) filed in court on December 17, 2014. This motion alleged " on-going and significant issues involving the Plaintiff's behavior" that called into question a continued shared parenting plan and asked for the court to award residential custody to the defendant with appropriate visitation for the plaintiff.
The defendant then filed a postjudgment motion for contempt (#137) on January 26, 2015. In this motion, the defendant claimed that the plaintiff violated a provision of the parenting agreement that granted to the defendant sole medical decision--making authority over the minor child. This motion alleged that, when the minor child suffered from a toe infection during the plaintiff's parenting time, the plaintiff, after notifying the defendant that he intended to take the child to a podiatrist, ignored a communication from the defendant asking for the child to be taken to his established podiatrist. The motion further avers that the plaintiff took the minor child to a different podiatrist for treatment and did not provide the defendant with sufficient information for her to attend the appointment.
The plaintiff filed an objection to the defendant's motion for contempt (#138) on February 4, 2015. In this objection, the plaintiff first responded to the contempt motion by claiming that the child's toe needed immediate medical attention, and further claimed that the defendant had not been using Our Family Wizard, had no voicemail set up, and did not return calls to the plaintiff.
The court took evidence and heard argument on the two motions to modify, the two motions for contempt, and the plaintiff's objection to the defendant's contempt motion over almost two full court days, on June 2, 2015, and September 4, 2015. During the June 2, 2015 hearing, the court heard testimony from, among others, Rosemary Tindall-Gibson, a marriage and family therapist, who is the minor child's therapist. During the September 4, 2015 hearing, the court heard testimony from, among others, Attorney William Brown, the minor child's guardian ad litem (GAL). Additionally, the court accepted into evidence a detailed set of recommendations from the GAL during the September 4, 2015 hearing.
The court had previously taken evidence and heard argument on March 4, 2015, on a restraining order filed on November 13, 2014, by the applicant mother against the respondent father arising out of an alleged altercation after the mother brought her new boyfriend to pick up the minor son. Tyrian v. Tyrian, Docket No. LLI-FA-14-4015019-S. After that hearing, this court granted an extension of the restraining order, previously granted ex parte, for a full year. Since the issues of the restraining order sprang, at least in part, from parenting plan issues, the court shall, in this memorandum of decision, take judicial notice, on occasion, as to evidence adduced during the March 4, 2015 hearing.
For purposes of clarity in this memorandum, the applicant mother will continue to be referred to as the defendant and the respondent father as the plaintiff, despite the reversal of their relative positions from the dissolution case to the application for a restraining order.
The parties were married on September 27, 1997, in Danbury, Connecticut. One child, Connor Joseph Tyrian (Connor or the minor child), was born, on August 29, 2001, as issue of this marriage. He is presently fourteen years old. The parties were divorced by means of a judgment of dissolution entered on February 9, 2005. The judgment of dissolution included a detailed parenting plan, Article II thereof. Pursuant to the salient points of this parenting plan, the parties shared joint legal custody of the minor child, with a two week rotating schedule. During week one, Connor would be with the defendant from Sunday at 7:00 p.m. until Wednesday at 4:00 p.m. and from Friday at 5:00 p.m. through Sunday at 7:00 p.m. During week one, Connor would be with the plaintiff for the remainder of the week, from Wednesday at 4:00 p.m. through Friday at 5:00 p.m. During week two, the minor child would be with the plaintiff from Sunday at 7:00 p.m. through Tuesday at 7:00 p.m. and from Friday at 4:00 p.m. until Sunday at 7:00 p.m. Connor would spend the balance of week two, from Tuesday at 7:00 p.m. until Friday at 4:00 p.m. with the defendant. Holidays were alternated between the parties according to a detailed schedule. After the minor child reached kindergarten age, winter and spring vacations would be alternated between the parties on an annual basis. The minor child would be with the plaintiff on Father's Day and with the defendant on Mother's Day; each parent would celebrate Connor's birthday during his or her respective regularly scheduled parenting time. In varying the parenting schedule, each parent agreed to be governed by Connor's best interests. Each party also agreed not to interfere with or hinder Connor's relationship with the other party and, in fact, to facilitate close ties between Connor and the other party in the establishment of visitation schedules. The parties agreed to confer as often as necessary to discuss their mutual concerns regarding Connor's welfare. The parties agreed that each party would be entitled to all information from Connor's treating health providers and teachers and agreed to provide the other party with appropriate authorizations so that he or she could have complete access to such information. There was no specific provision in the original parenting plan giving either party final decision-making authority about critical issues in Connor's life.
As demonstrated by the pleadings that followed, the original parenting plan failed in many crucial respects.
On July 18, 2007, the plaintiff filed a motion for modification (#111) seeking additional visitation time. On September 11, 2007, the defendant filed a motion for modification (#117), claiming that the minor child had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and that she had been primarily responsible for following through with treatment for this condition. This motion also claimed that the plaintiff had interfered with Connor's relationship with the defendant in violation of the original agreement. The defendant's motion for modification further requested that each party, when exercising his or her parenting time, be ordered to administer the medication for Connor's ADHD pursuant to his doctor's instructions. The parties jointly moved for the appointment of Attorney Brown as the GAL by means of a motion filed on September 4, 2007 (#115). This motion was granted by this court, Marano, J., on September 4, 2007 (#116). On November 19, 2007, this case was referred by order of this court, Pickard, J. (#118), to family services for a comprehensive evaluation. In response to the defendant's motion to modify (#117), dated September 11, 2007, this court, Gallagher, J., entered an order pursuant to a stipulation on February 11, 2008 (#119). The provisions of this order resolving the motion to modify reflect a further breakdown in the relationship between the plaintiff and the defendant. The parties agreed not to make any phone calls to each other, except in the event of a medical emergency involving the minor child. The only exception to this agreement was that the non-custodial parent could make one phone call per evening solely for the purpose of speaking to Connor. The parties further agreed not to threaten, harass, stalk, assault, molest, sexually assault, or attack the other party. The parties additionally agreed that neither party would employ corporal punishment on Connor. Finally, the parties agreed that contact between the parties would occur through Our Family Wizard and that the parties would log on to this site at least once per day.
Less than one month later, the defendant filed a motion for contempt against the plaintiff (#122) claiming that the plaintiff was violating the provision of the February 11, 2008 order (#119) that he not phone the defendant. Family Services filed its initial evaluation on April 10, 2008 (#123) and its final evaluation on July 14, 2008. The final evaluation recommended sole legal custody for the defendant, but also mentioned that both parties tend to communicate negatively with each other, with the plaintiff intentionally antagonizing the defendant and the defendant stubbornly extending the argument in an effort to prove she was right. The family evaluation was based in no small part on the need to reduce conflict in Connor's life and the need to diminish the number of Connor's transitions as a result of his ADHD. The parties were referred to the Regional Family Trial Docket for a pretrial conference (#126). That pretrial conference took place on September 17, 2008, and resulted in a stipulation (#129) incorporated into a modification of the parenting plan (#129.50) on even date.
The September 17, 2008 parenting plan is the subject of the instant motions before this court. The plan contains the following significant provisions. The parties agreed to joint legal custody, but the defendant's home was denoted the primary residence. Para. 1.1. The defendant received final decision making authority over medical issues, including the choice of medical providers for the minor child. The plaintiff, however, was allowed to be involved in all medical appointments and medical information. Para. 1.2. Both parties were entitled to receive copies of, among other things, all medical, educational, and religious training documents for Connor. Para. 1.3. The parties were ordered to confer through email on www.ourfamilywizard.com on a daily basis. The defendant was solely responsible for entering into such program all denoted important information. After initial entry of current information by the defendant, any activities planned by either party were required to be entered within forty-eight hours from learning of the dates and times involved. The agreement, as incorporated in the court's order, states that the calendar function of the program has special significance; its purpose is to allow both parents an easily accessible overview of Connor's schedule for planning purposes. Para. 1.4. The minor child was to remain in the Torrington school system for as long as reasonably possible unless the parties agreed otherwise. Para. 1.5. The defendant was to pick Connor's extra-curricular activity for winter and spring and the plaintiff for summer and fall. Para. 1.7. Both parties were precluded from introducing the minor child to " any casual paramours (defined as a relationship less than six months along)" and from having visitation with a parent while the parent was hosting overnight stays with a serious paramour (defined as an ongoing relationship longer than six months along). Para. 1.8. The parties agreed to participate in co-parenting classes with PEACE or a similar program and to sign authorizations necessary for the co-parenting counselor to communicate with the GAL. Para. 1.9. Visitation remained on a two week rotating schedule, but changed so that, generally, on week one, Connor would be with the plaintiff from Wednesday after school until Sunday at 7:00 p.m., with the defendant picking up Connor at the plaintiff's home and that during week two, the plaintiff had visitation from Wednesday after school until Friday at school time. Para. 2.1. Each party agreed to give the other the option of spending exclusive vacation time with Connor up to two non-consecutive weeks per year, with a sixty-day notice provision to the other party. Para. 2.2. The parties agreed that the defendant could claim head of household status for tax purposes, and that the parties would alternate claiming Connor as a dependent, with the plaintiff claiming him for the 2008 year and even numbered years after that, and with the defendant claiming him for the odd numbered years beginning in 2009. Para. 3.1.1. The parties agreed to no periodic child support due to the shared parenting plan and the total coordination of family support and to share equally in all unreimbursed medical, day care, and extra-curricular costs and expenses. Para. 4.2.
THE PARTIES' POSITIONS
As mentioned above, the parties came before this court for almost two full days of hearings as to their competing motions to modify and motions for contempt under the September 17, 2008 order and agreement. In short, the parties are seeking the following relief.
The plaintiff is seeking modification of the amended parenting plan (1) to allow for him to have equal decision making authority with the defendant over medical, school, and religious education issues; (2) to receive permission for the plaintiff's new wife to pick up and drop off the minor child; (3) for the plaintiff to drop off the child at school on Monday morning following his visitation weekend, rather than at the defendant's house on Sunday evening at 6:00; (4) for decision-making authority for the minor child regarding sports and family events; (5) to redesignate time with the plaintiff's new wife as the father's visitation time, rather than time in which the plaintiff is unavailable and over which the defendant would have a first option to care for the child; (6) to allow the plaintiff to have vacation time with the minor child during his employer's two week summer shut-down; (7) to require the defendant to use Our Family Wizard; and (8) to order the defendant to refrain from making disparaging remarks about the plaintiff.
In his motion for contempt--postjudgment (#134), filed in court on November 3, 2014, the plaintiff seeks relief based upon a claim that the defendant violated Paragraph 1.8 of the September 17, 2008 parenting agreement by introducing the minor child to a " casual paramour" and by having overnight stays with the casual paramour when the minor child was present.
In the defendant's postjudgment motion for modification (#136), filed in court on December 17, 2014, the defendant claimed that " on-going and significant issues involving the Plaintiff's behavior" called into question a continued shared parenting plan and asked for the court to award residential custody to the defendant with appropriate visitation for the plaintiff.
In the defendant's postjudgment motion for contempt (#137), filed on January 26, 2015, the defendant claimed that the plaintiff violated a provision of the parenting agreement that granted to the defendant sole medical decision-making authority over the minor child. This motion alleged that, when the minor child suffered from a toe infection during the plaintiff's parenting time, the plaintiff, after notifying the defendant that he intended to take the child to a podiatrist, ignored a communication from the defendant asking the child to be taken to his established podiatrist. The motion further avers that the plaintiff took the minor child to a different podiatrist for treatment and did not provide the defendant with sufficient information for her to attend the appointment. The plaintiff objected to this motion, claiming that a medical emergency necessitated a quick decision for treatment on his part and further claiming that the defendant had not been using Our Family Wizard, had no voicemail set up, and did not return calls to the plaintiff.
FINDINGS OF FACT
Before the court delves into the specific issues raised in the two motions for modification and the two motions for contempt, the court makes the following findings. These findings provide the context in which the court shall decide each of the pending motions. These findings are based upon the evidence taken by the court in three hearings involving the parties (two on these motions and one on the defendant's 2014 application for a restraining order against the plaintiff), the court's observations of the affect and temperament of the parties during these hearings, and the entirety of this court file.
The GAL testified credibly and persuasively that, despite all of the conflict in his life, Connor is a well-adjusted young man, perhaps as well-adjusted as he could be under the circumstances, and that Connor is both a young man who is fair himself, and is sensitive when those around him are not fair. The GAL also testified credibly and persuasively that each parent has contributed significantly to the positive aspects of Connor's development and that Connor loves both of his parents equally. Further, the GAL testified credibly that Connor would be upset if his overall time with his father, the plaintiff, were reduced. Along those lines, Connor's therapist testified credibly that, were Connor's living situation to be modified in a substantial way, namely by limiting his overall access to either parent, Connor would likely blame himself for the change.
That being said, the GAL also testified, succinctly and incisively, that the plaintiff and the defendant have engaged in competitive co-parenting. The court agrees. Both parties have, to date, struggled with co-parenting. The plaintiff and defendant have engaged in stiff-necked, protracted conflict in the ten years since their divorce in 2005 over virtually every major aspect of their son's life: where he will go to school, which sports he will play, where he will play these sports, his religious upbringing, how to treat his ADHD, where he will live, and which one of them will be the primary influence in his life. The sad aspect of this tug-of-war is that the rope is Connor. The parties have been so intent on identifying the figurative infection in the other's eye that they don't notice the burgeoning cataract in their own. Blindness has ensued. Neither party seems able to perceive the manner in which this elongated civil war has negatively impacted their son.
Along these lines, Connor's therapist testified that when she began seeing him, he was " quite anxious. And he has now moved into being . . . quite angry." Hearing Transcript, June 2, 2015, 31:4-7. According to Connor's therapist, " he is distressed . . . by the level of conflict in this family system." Id., 35:10-12. The therapist ended by stating that Connor, the plaintiff, and the defendant each need to work on " [c]onflict management, anger management, those would be very important, [as well as] mood regulating, [and] disengaging strategies." Id., 41:12-13.
The court agrees with Connor's therapist's insights. During the course of the hearings with the parties, the court noted the following examples, less and more significant, of parental behaviors that have added to Connor's distress.
In the defendant's exhibit D (September 4, 2015 hearing), the plaintiff and Connor have an exchange of texts concerning the town in which Connor will play baseball. These texts display passive aggressiveness on the part of the plaintiff.
The defendant has displayed an unfair intransigence in resisting any modification to the parenting plan to allow the plaintiff's present wife to transport Connor to and from visitation. The defendant's stubbornness in this regard creates unnecessary logistical headaches for the plaintiff and seeks to exclude Connor's stepmother from his life.
During the restraining order hearing, the court heard, as an exhibit of the defendant, a cell phone audiotape of an exchange between the plaintiff and the defendant when the defendant arrived at the plaintiff's house for visitation with Connor with her new boyfriend in the car. The plaintiff engages in a protracted episode of screaming at the defendant in which he, referring to archaic language from the last parenting plan, calls the defendant's new boyfriend a " paramour" over and again. The nadir of this audiotape is when Connor, who is present throughout, begs his dad to stop. The defendant began audiotaping this conversation secretly before the plaintiff began to lose his temper, and, at one point, after the plaintiff was already agitated, and while knowing that she was secretly recording the plaintiff, asked the plaintiff if he had anything more to say . . . There were several other examples during the hearings of this matter and of the restraining order matter when the court observed or heard testimony of both the plaintiff's anger and lack of impulse control. Some of these examples took place in public places, such as in doctor's offices, and some took place with medical providers, such as Connor's therapist. Additionally, the GAL testified credibly that the plaintiff was often bullying and intimidating in his interactions with the defendant. Further, on one occasion, the plaintiff left court documents concerning the parties' motions and other conflicts out in plain view of Connor during the plaintiff's parenting time.
The defendant has overtly and consistently disobeyed the court orders, based, ironically, on her agreements, to use Our Family Wizard. The defendant testified that she deemed Our Family Wizard to be technologically deficient because, among other issues, she could not scan large documents into the site. The defendant claimed that she continued to communicate effectively with the plaintiff over parenting issues by text and email. The defendant's attorney made the same argument at closing, but frankly admitted, when questioned by the court, that a party does not have the ability to decide which court orders he or she needs to obey. More importantly, the defendant's decision not to comply with this court order deprives third parties, such as the GAL, from important information because it denies him access to all communications between the parties.
Additionally, the GAL testified credibly that the defendant could be " dictatorial and directive" and at times used " provocative" language in her communications with the plaintiff, such as threatening contempt.
See, for example, Exhibit C, submitted by the defendant in support of her contempt motion (#137), which ends with the defendant texting to the plaintiff: " You just bought yourself contempt charges."
Drawing upon these and other examples, the GAL observed, quite credibly, that both parents needed to work on their communication skills with each other.
DISCUSSION
The Motions for Contempt
The court will consider first the motions for contempt filed by the two parties (the plaintiff's #134 and the defendant's #137).
As a threshold matter, the court notes that the subject matter of these two contempt motions further buttresses the GAL's observation that the parties have viewed co-parenting as a competitive, rather than a cooperative, venture.
The law in this area is well-settled. " Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense." (Internal quotation marks omitted.) In re Leah S., 284 Conn. 685, 692, 935 A.2d 1021 (2007). The moving party must show, by a preponderance of the evidence, the existence of a court order and noncompliance with that order. Issler v. Issler, 50 Conn.App. 58, 66-69, 716 A.2d 938 (1998), rev'd, 250 Conn. 226, 737 A.2d 383 (1999). " Noncompliance alone will not support a judgment of contempt." (Internal quotation marks omitted.) Prial v. Prial, 67 Conn.App. 7, 14, 787 A.2d 50 (2001). In its consideration of a contempt motion, the court must first find that the subject court order was sufficiently clear and unambiguous so as to support a judgment of contempt. The court must next find that there was a violation of that order. The court must further find that the violation was wilful. In deciding the issue of wilfulness, a court must consider all the circumstances. Specifically, " a court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was wilful." (Internal quotation marks omitted.) Wilson v. Wilson, 38 Conn.App. 263, 275-76, 661 A.2d 621 (1995). Finally, the court must find that the wilful violation was not excused by a good-faith dispute or misunderstanding. In re Leah S., supra, 693-94. " A good faith dispute or legitimate misunderstanding of the terms of a [family court] . . . obligation may prevent a finding that the [party's noncompliance] was wilful." Eldridge v. Eldridge, 244 Conn. 523, 529, 710 A.2d 757 (1998); Jenks v. Jenks, 39 Conn.App. 139, 142-43, 663 A.2d 1123 (1995) (plaintiff willing to make up payments he did not understand he was liable for, and should not have been found in contempt).
A court, however, need not find contempt to order a remedy. " [E]ven in the absence of a finding of contempt, a trial court has broad discretion to make whole any party who has suffered as a result of another party's failure to comply with a court order." (Emphasis omitted; internal quotation marks omitted.) Fuller v. Fuller, 119 Conn.App. 105, 115, 987 A.2d 1040, cert. denied, 296 Conn. 904, 992 A.2d 329 (2010). Even though a party's actions may not rise to the level of contempt, a court's remedial orders are well within its " general remedial discretion." Fitzgerald v. Fitzgerald, 16 Conn.App. 548, 553, 547 A.2d 1387, cert. denied, 210 Conn. 802, 553 A.2d 615 (1988).
The plaintiff's motion for contempt (#134) claims that the defendant violated paragraph 1.8 of the September 17, 2008 order by introducing Connor to and by having overnight visits with a " casual paramour" with Connor present. The language of paragraph 1.8 states, in part, that neither " parent shall introduce the minor child to any casual paramours (defined as a relationship less than six months along)." This paragraph proceeds to state that the " minor child may be introduced to a serious paramour but not to spend overnights with said paramour (defined as an ongoing relationship longer than six months along)."
There was no credible evidence adduced at the hearing that the defendant had overnight stays with any kind of paramour, so the court will focus on the first prong of this motion.
A party violates paragraph 1.8 if he or she were to introduce Connor to a " casual paramour." The word " casual" in the phrase " casual paramour" is defined as a relationship less than six months in duration. The word " paramour, " however, is not defined. Where a word or phrase is not defined, the court looks to the common usage of the word. Poole v. Waterbury, 266 Conn. 68, 87-88, 831 A.2d 211 (2003) (" the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract") [Internal quotation marks omitted]. To " ascertain that commonly approved usage, we look to the dictionary definition of the term." Hummel v. Marten Transport, Ltd., 282 Conn. 477, 498, 923 A.2d 657 (2007). The dictionary definition of " paramour" is a person with whom someone is having a romantic or sexual relationship and especially a secret or improper relationship." Merriam-Webster's Collegiate Dictionary (11th Ed. 2003).
The plaintiff claims that the incident that gave rise to the restraining order discussed supra, namely when the defendant brought her new boyfriend along with her in the car to pick up Connor for visitation in the fall of 2014, violated paragraph 1.8 because, at the time, the defendant had not dated this man for six months.
The defendant's defense to this motion is that Connor met the man who became her boyfriend in 2014 many years ago. The defendant submitted four photographs from 2005 as proof of these facts. Defendant's Exhibit B. The photographs depict Connor playing with this man's dog and the uncontroverted testimony is that these pictures were taken in October 2005.
The court finds that the photographs in Defendant's Exhibit B, taken together with the uncontroverted testimony, demonstrate that Connor met this man in 2005. In 2005, however, this man was not the defendant's boyfriend. The credible testimony during the hearing was that the defendant began dating this man less than six months before Connor met him again in 2014. The court finds that the language prohibited the defendant from introducing Connor to this man not as a friend, but in this man's capacity as the defendant's " paramour, " or boyfriend, if the romantic component of the relationship were less than six months old. The court finds that the defendant violated 1.8 in introducing Connor to this man when the romantic relationship between the defendant and this man was less than six months old. In light of the likely confusion engendered by the fact that Connor had met this man approximately nine years before the incident that gave rise to the restraining order, however, the court finds that the defendant was operating under a " legitimate misunderstanding of the terms of a [family court] . . . obligation" and that such misunderstanding " prevent[s] a finding that the [alleged contemnor's] [noncompliance] . . . was wilful." Eldridge v. Eldridge, supra, 244 Conn. 529. Therefore, the court denies the plaintiff's motion for contempt.
The defendant's motion for contempt (#137) claims that the plaintiff violated paragraph 1.2 of the September 17, 2008 order which states, in relevant part, that the defendant " shall have final decision making authority over medical issues relative to the minor child including but not limited to the choice of medical providers" when the plaintiff took the minor child to a podiatrist to treat an infected toe and did not provide the scheduling information to the defendant so that she could attend the appointment. The defendant introduced Exhibit C, a series of texts between the defendant and the plaintiff, in an attempt to document this violation. The plaintiff's actions in this case constitute a violation of the literal language of 1.2. The minor child's toe, however, needed treatment and it was treated appropriately. The defendant's papering of her file with seven texts sent over a fifteen minute period intended to document the violation and ending with " You just bought yourself contempt charges" does not evidence wilfulness on the plaintiff's part. To the contrary, the court was convinced by the plaintiff's testimony that he simply wanted to get his son's infection cured. Moreover, no party sustained damage or harm as a result of this incident. The court, therefore, denies the defendant's motion for contempt.
These texts do, however, provide further evidence of the defendant's desire for excessive control referred to supra .
The Motions for Modification
Given a situation that the GAL described as " competitive" co-parenting, it is not surprising that each parent has filed a motion for modification. Each party has also filed proposed orders, the defendant on June 2, 2015 (#138.01) and the plaintiff on September 4, 2015 (#140). The dichotomous nature of the relief requested in the proposed orders further reflects the competitive nature of the co-parenting in this case.
In his proposed orders, the plaintiff requests (a) that he be given equal decision making over (1) medical issues relative to the minor child, including the choice of medical providers and (2) regarding all school issues involving teachers, assignments, and activities, and which high school Connor will attend; (b) that his wife, Conner's stepmother, be allowed to pick up and drop the minor child; (c) that Connor have input regarding sports that he will play; (d) that Connor be allowed to stay at the plaintiff's home with his stepmother when the plaintiff is not at home, rather than allowing the defendant first option to care for Connor; e) that the plaintiff be allowed to drop Connor off at school on Monday morning following a weekend visitation, rather than at the defendant's house on Sunday at 6:00 p.m.; (f) that the plaintiff be allowed his two week summer vacation during his employer's two week summer shutdown; (g) that the defendant use Our Family Wizard; (h) that the defendant refrain from disparaging the plaintiff; and (i) that the parties use Jennifer Champagne as a co-parenting coordinator, with authority as set forth in the plaintiff's proposed orders and in Addendum A attached thereto.
The defendant's proposed orders request (a) that she have sole legal custody of Connor; (b) that the plaintiff have parenting time on alternating weekends from Friday after school until Monday morning; (c) that the plaintiff shall not discuss or permit any other adult from discussing adult issues with or in the presence of Connor; (d) that the defendant be entitled to choose her time for summer vacations with Connor for up to fourteen consecutive days with thirty days' notice, that the plaintiff not be able to deny defendant's request for specific vacation time, and that vacation time shall trump conflicting holiday visitation or normal parenting time; (e) that the plaintiff shall be allowed his vacation time with Connor to coincide with his company shut down period during the last two weeks of July; (f) that, if the plaintiff were out of town or incapacitated, the defendant have the first option to care for Connor; (g) that the parent's birthdays be celebrated during normal parenting time; (h) that each parent have Connor from 5:00 p.m. on the Saturday before until 5:00 p.m. on the day of their respective parent's day--Father's day for the plaintiff and Mother's day for the defendant--if it is not their normal parenting weekend; (i) that the parents no longer have to use Our Family Wizard, but should communicate by text or email; (j) that the plaintiff complete classes on proper parenting, continue to receive counselling on the proper method of communicating with the defendant, and that the GAL be authorized to speak with the plaintiff's counsellor on these issues; (k) that the plaintiff shall remove the defendant from all credit cards on which her name appears within thirty days; (1) that the plaintiff be prohibited from attending all further medical appointment of the minor child; (in) that if the parties are required to continue to use Our Family Wizard, that responses be within seventy-two hours and more urgent messages must be communicated via text; (n) that the defendant be allowed to claim the minor child as a tax dependent every year, beginning in the 2015 tax year; and (o) that any disagreements be addressed in mediation with a parent coordinator, Jennifer Champagne.
The GAL also submitted, as Court Exhibit 1 during the September 4, 2015 hearing, a detailed set of recommendations.
" 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 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.' . . . 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).
" 'To obtain a modification, the moving party must demonstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it. Because the establishment of changed circumstances is a condition precedent to a party's relief, it is pertinent for the trial court to inquire as to what, if any, new circumstances warrants a modification of the existing order. In making such an inquiry, the trial court's discretion is essential. The power of the trial court to modify the existing order does not, however, include the power to retry issues already decided . . . Rather, the trial court's discretion only includes the power to adapt the order to some distinct and definite change in the circumstances or conditions of the parties.' . . . Borkowski v. Borkowski, 228 Conn. 729, 737-38, 638 A.2d 1060 (1994)." Kelly v. Kelly, supra, 54 Conn.App. 55-56.
Our appellate court has observed that, when both parties file a motion to modify, the second person filing has " in essence admitted that there has been a substantial change in circumstances." (Internal quotation marks omitted.) Baker-Grenier v. Grenier, 147 Conn.App. 516, 517 n.2, 83 A.3d 698 (2014).
In considering the proposed orders of the parties, the court pays special attention to the testimony of two third parties, Connor's therapist and the GAL, each of whom testified credibly and each of whom did not display bias.
Connor's therapist testified that Connor has an issue with transitions, partly resulting from his ADHD and partly from parenting conflict, and opined that Connor would be better off staying with one parent during the week, as opposed to moving between the two homes during the week. The therapist " assumed" that Connor's home during the school week would be the defendant's home. Hearing Transcript, June 2, 2015, 40:10-11. The GAL testified that Connor tends to blame himself for the conflicts between his two parents and that Connor would blame himself in a unhealthy way if there were a change from the current situation in which he moves from one house to another during the school week.
As mentioned above, the GAL injected virtually the only optimistic note in the three days of hearings that this court conducted with the parties (one for the restraining order and two for these motions), which hearings were otherwise quite discouraging. The GAL testified that, for all the conflict to which Connor had been exposed, he was doing very well, about as well as he could be expected to be doing. The GAL found Connor to be polite, respectful, and appropriately enthusiastic about leisure time activities like sports. The GAL also testified that Connor loved his parents equally and stated that he believed that each parent had a substantial amount to do with how well Connor was doing.
The defendant argued strenuously that the only way to remove the ongoing conflict between the plaintiff and the defendant would be to give sole legal custody and decision-making authority to the defendant. As the defendant's argument goes, taking one party out of the decision-making mix would eliminate any possible conflict and would benefit Connor emotionally. As appealing as that argument may be at first blush, when analyzed carefully, it proves to be facile. When cross-examined by the defendant, the GAL disagreed with this proposed solution. As the GAL persuasively pointed out, placing all the decision-making authority in the hands of one parent would not eliminate conflict, but simply change the nature of the conflict between the two parties. The non-decision making party would tend to become resentful both generally, by dint of being frozen out of decisions, and specifically, by reason of individual decisions. The non-decision making party could then discuss the decisions with Connor during parenting time and " poison the well" as to the decision-making parent. Finally, the non-decision making party could continue to resort, when unhappy, to filing motions with the court, which carry their own potential for creating further conflict. The court finds the GAL's insights in this regard to be credible and persuasive.
For all of the reasons stated above, the court grants in part and denies in part the motions for modification of each party, and enters the following orders that either modify the September 17, 2008 parenting plan or leave it in place. All portions of the September 17, 2008 parenting plan and all other aspects of the dissolution judgment not directly affected by the orders issued today shall remain in full force and effect.
THE COURT'S ORDER
The parties shall have joint legal custody of the minor child. To dampen the negative effect that transitions have on Connor as a result of his ADHD and the parental conflict, and because the court finds the defendant to be better organized than the plaintiff, Connor shall reside with his mother, the defendant, during the school week. When school is in session or if Connor is in camp when school is not in session, the school week shall consist of the time period beginning after school on Monday, or after school on Tuesday if Monday is a school holiday, and running until 5:00 p.m. on Friday. During summer vacation, except during scheduled vacation time for either party, and except when Connor is in summer camp, Connor shall reside with the defendant from Sunday at 6:00 p.m. through Friday at 5:00 p.m. Because the plaintiff has less parenting time during the week under this order, and because the court credits both the testimony of Connor's therapist, that Connor may blame himself for any significant diminution in the parenting time spent with either parent, and that of the GAL, that Connor would be upset if his overall parenting time with the plaintiff were diminished, the court orders the plaintiff additional weekend visitation time, namely by ordering parenting time for the plaintiff during the first three weekends of every month and by, as explained in the following sentence, providing for drop-off time on Monday morning as opposed to Sunday night. When school is in session, the plaintiff shall have Connor from 5:00 p.m. on Friday until he drops off Connor at school Monday morning, or if Monday is a school holiday, until he drops off Connor at school Tuesday morning. During summer vacation, except during scheduled vacation time for either party, the plaintiff shall return Connor to the defendant's home at 6:00 p.m. on Sunday.
As long as she is married to the plaintiff, the plaintiff's wife shall be allowed to pick up and drop off the minor child. Unless the plaintiff father is physically incapacitated, Connor shall be allowed to continue his visitation time at the plaintiff's home with the plaintiff's wife, as long as she remains the plaintiff's wife, when the plaintiff is not at home. If the plaintiff is physically incapacitated, the defendant shall have the first option to care for Connor.
The plaintiff's summer vacation shall coincide with his employer's mandatory shutdown, whenever that takes place, for a period up to fourteen consecutive days. The defendant shall be entitled to choose her time for summer vacations with Connor for a period of up to fourteen consecutive days upon at least thirty days' notice to the plaintiff through Our Family Wizard. The only exception to this order is if the defendant's requested time overlaps with the plaintiff's vacation time during his employer's mandatory shut-down period as defined above. The plaintiff shall not be allowed to deny the defendant her choice of vacation time, as long as it does not overlap with the plaintiff's mandatory shut-down period and as long as the defendant provides the notice described above.
The parties are required to communicate through Our Family Wizard. Responses through Our Family Wizard must be made within twenty-four hours. The only exception to this order is that the parties may communicate in another electronic medium for documents that cannot be placed on Our Family Wizard and may confer in any medium, including telephonically, by text or by email, in the event of a medical or family emergency involving either of their families or Connor. Along with the GAL, Connor's therapist shall also be allowed access to Our Family Wizard.
Both parties are ordered to not make disparaging remarks about the other party or permit other adults to do so. Both parties are ordered not to discuss court-related, custody, or parenting issues or issues concerning the other party's personal life with Connor. In sum, both parties are ordered not to draw Connor into the middle of their disagreements.
The defendant shall retain sole decision-making authority concerning Connor's medical issues, including, but not limited to, choice of doctors and other medical providers. Only the defendant shall attend non-emergency medical appointments, unless she is incapacitated or unavailable. Under those circumstances, the plaintiff shall attend non-emergency medical appointments. Both parents are permitted to attend all emergency medical appointments. After medical appointments, the party attending shall send an email summary, through Our Family Wizard, to the other parent on the day of the appointment as to what happened and if any co-pay was incurred.
The defendant shall be entitled to claim the minor child as a tax dependent two of every three years, as follows: the defendant shall claim Connor as a tax dependent for the tax years 2015 and 2016, and the plaintiff in 2017, until Connor may no longer be claimed as a tax dependent.
The court additionally orders the following recommendations of the GAL.
The parties shall use the following procedure for selecting a high school for Connor. Four high schools have been identified as possible high schools for Connor: Thomaston High School, Torrington High School, Wamogo High School, and Oliver Wolcott Technical School in Torrington. Both parents and Connor shall attend open houses for each of the schools in the fall of his eighth grade year. If the date for the general open house for any school has already passed, the parties shall schedule an individual visit for Connor. Each parent shall then make their selection based on the information they have and Connor's input by January 1, 2016, following the open houses or individual visits. If the parents do not reach an agreement as to the high school selected, then the matter will be referred to the GAL for follow up and recommendations. If the referral to the GAL does not result in an agreement, then either parent may file a motion with the court by February 1, 2016. At that time, the parties shall proceed directly to a hearing on this issue without the necessity of consulting with Family Services.
Connor is not to get his driving permit, unless both parents agree, prior to May 1, 2018. Connor will be required by his parents to take his drivers course the summer of 2018. If Connor has maintained a B average or better in school, he will be permitted to get his driver's license at the end of the summer. Otherwise, he shall be permitted to get his driver's license after raising his grades to a B average or better in school. Neither party shall purchase a car for Connor without an agreement to do so between the parties. Following Connor getting his driver's license, the parties shall each get a quote for automobile insurance for Connor, will select the policy with the lower quote, and shall split the cost of Connor's automobile insurance equally.
Connor is not currently using any social media sites. Both parents and Connor shall select a social media site, such as Facebook, Instagram, or Twitter--but not Snapchat--and allow Conner access to that site. Both parents shall have Connor's password and shall not be blocked from access to Connor's profile or postings on the site. The parties shall monitor Connor's usage to ensure that Connor is using the site appropriately and may expand his access to social media as appropriate.
While Connor has historically attended Camp Moe, he has expressed a desire to no longer attend this summer camp and the court finds that Connor has outgrown Camp Moe. Both parents are ordered to investigate alternatives for the non-vacation weeks during the summer and exchange that information annually by April 30. In the event that the parties cannot reach an agreement regarding Connor's summer plans, the issue shall be presented to the parenting coordinator for resolution.
Both parents are ordered to register and complete the online, eight hour " Parenting without Conflict Class" by Bill Eddy, LCSW, Esq. and New Ways for Families by January 15, 2016, which is available at www.onlineparentingprograms.com. Both parties shall bear their individual cost of $99 for the program. Both parties shall submit proof of completion of the course to the GAL.
The court finds that it is in Connor's best interest for the parties to engage the services of a parenting coordinator. The parties shall use the services of Jennifer Champagne as their parenting coordinator. The parties shall meet with the parenting coordinator for an introductory meeting and, thereafter, the parties shall call upon the parenting coordinator when needed to resolve an impasse. Unless an emergency arises, the parties shall present for resolution to the parenting coordinator all disagreements concerning major decisions pertaining to Connor or any other parenting concern or child-related issue. Either party may solicit the parenting coordinator's involvement. The costs associated with the parenting coordinator shall be shared equally by the parties.
The court makes the following additional orders regarding the parenting coordinator. The parties shall initially attempt to resolve any issues and make any decisions together prior to the engagement of the parenting coordinator for a resolution. Both parties shall adhere to the protocols set by the parenting coordinator and make themselves available to address the issues with the parenting coordinator in a timely fashion. Should either party disagree with the recommendation or determination of the parenting coordinator, they shall be entitled to file a motion with the court for a de novo review of the issue within thirty days of its receipt. Until such time that the matter is heard by the court, the parenting coordinator's recommendation or determination shall be binding on the parties. The parenting coordinator process is not confidential and the parenting coordinator may be called to testify in court proceedings. Whichever party calls the parenting coordinator to testify shall bear the cost of the testimony of the parenting coordinator, subject to an alternative allocation of cost by the court.
The parenting coordinator has binding authority over the following issues: 1. parenting time and access schedules or conditions including vacation, holidays, and temporary variation from the schedule; 2. child rearing issues; 3. enrichment and extracurricular activities including sports, camp, and jobs; 4. religious observances and religious education, including time and place; 5. Connor's travel and passport arrangements; 6. Connor's clothing, equipment, and personal possessions; 7. communication between the parties about Connor, including telephone calls, faxes, text messages, email messages, notes in Connor's backpack, and other means of communication; 8. communication by the parties with Connor while Connor is with the other parent, including telephone calls, text messages, emails, and video; and 9. alterations to Connor's appearance including haircuts, ear and body piercings, and other body modifications.
Given Connor's age, the parenting coordinator should seek Connor's input as to which sports he will play during each individual season.
The parenting coordinator does not have authority to: 1. make broad, wholesale changes to the parenting plan that would result in substantive changes in the parenting access schedule; 2. make any changes or alterations to the parenting access schedule that would change the legal or physical custody of Connor from one party to the other party; 3. impose any financial obligations on the parties, unless otherwise agreed upon by the parties and related to Connor's activities or interests; and 4. undertake or require a custody evaluation.
CONCLUSION
The court is acutely aware that, while it can issue orders, it cannot change behavior. In some respects, an order of the court is like orthopedic surgery. Although a surgeon may suture a ligament or cartilage, the tissue will not be repaired unless and until the patient devotes significant time and effort to rehabilitation. Along those lines, although this decision resolves many of the conflicts between the parties, this decision cannot, in and of itself, turn the parties into more cooperative co-parents. What the court has tried to do in this opinion is, first, to draw the parties' attention to the vitally important observations of the GAL, namely that, even given the conflicts cited above, Connor is a very well-adjusted adolescent, that each of the parties has helped to bring Connor to that stage in his development, and that Connor loves both of his parents. Next, the court has tried to hold up a mirror to each of the parties to help each understand how he or she has struggled with co-parenting. Now, in concluding, the court would like to remind the parties that Connor is a fourteen-year-old adolescent, still being formed and developed in many significant ways, with a tremendous amount of growth yet to come. During this dynamic period of Connor's development, the primary role models for Connor will be his parents, the parties to this action. The parties should also bear in mind the GAL's credible observation that Connor is a young man who is fair and who is sensitive to whether those around him are fair. Every time the parties interact with each other and with Connor, they send him messages, both obvious and subtle, about conflict resolution, about anger management, about self-control. The court has confidence that if the parties are able to put Connor's well-being first, they will be able to engage in more cooperative co-parenting. Ten years have passed since the dissolution of the parties' marriage. Each has apparently moved on, one to another marriage and one to a long-term relationship. The time for fighting the battles of the marriage is over. The time for demonstrating to Connor what it means to be an adult capable of respect and relationship-building is now.
So ordered.