Paul Greenan v. Suzanne Greenan

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Superior Court of Connecticut.

Paul Greenan v. Suzanne Greenan

FA094015784

-- January 18, 2012

MEMORANDUM OF DECISION

This dissolution of marriage action between the plaintiff, Paul Greenan, and the defendant, Suzanne Greenan, came before the court by a writ, summons and complaint returnable to the court on March 10, 2009.   The matter was tried, over an extended period on September 19–22, September 26–28, September 30, October 27–28 and November 3. On December 6, 2012, the defendant filed a motion to present additional evidence which was heard on January 17, 2012.   The motion was denied.1  The plaintiff was represented by attorney Neal Rogan, and the defendant was represented by attorney Norm Roberts.   The children were represented by attorney for the minor children (AMC) Melissa Needle, and the children's interests were protected by guardian ad litem (GAL) attorney Eric Broder.

Both parties submitted claims for relief.   Regarding custody and parenting time, the plaintiff seeks joint legal custody of the two minor children, primary residence with the defendant;  parenting time from Friday at 6 p.m. until Sunday at 10 a.m., alternating weekly with parenting time from Saturday at 10 a.m. until Sunday at 6 p.m.;   the option to select additional parenting time when the defendant's work responsibilities require out of state overnight travel;  drug testing of both parties;  and a requirement that the parties mediate all disputes before bringing them to court.   Regarding financial support, the plaintiff offers to pay child support in the amount of $48 per week, seeks alimony in the amount of $6,000 per month for a period of eight years and proposes the defendant pay his COBRA coverage so long as it is available.   The plaintiff proposes that the parties share responsibility for the cost of extracurricular activities with the plaintiff paying 7 percent and the defendant 93 percent.   The plaintiff further proposes that he retain the investment property at 37 Maryanne Lane in Stamford and its contents;  that he retain the balance of funds remaining in the parties' escrow accounts totaling approximately $704,000;  that he receive 50 percent of the defendant's 2011 bonus;  and that the parties divide equally the defendant's employment related securities and their retirement accounts.

The defendant seeks sole legal custody and primary residential custody.   The defendant proposes the plaintiff have parenting time every Wednesday evening and every other weekend from Friday after school/camp until Sunday or the following day if it is a holiday at 6:30 p.m., which is more regular access with the children than the plaintiff is requesting.   Additionally, the defendant proposes that the plaintiff enjoy parenting time on Thursday evenings on an alternating basis with each child individually.   The defendant proposes that the plaintiff submit to hair follicle drug testing.   By way of financial orders the defendant proposes that she receive alimony in the amount of $1 per year and that, in lieu of child support, each party contribute 50 percent of the children's tuition and fees, camps and travel costs, sports and extracurricular activity expenses as well as unreimbursed medical expenses.   The defendant proposes that she retain sole ownership of the marital home at 138 Ridgecrest Road in Stamford, the balance of both court-ordered escrow accounts, and the financial accounts held in her name, including retirement accounts and employment related securities.

In rendering this decision and making the ensuing orders, the court has carefully considered the statutory criteria in General Statutes § 46b–56, regarding custody, General Statutes § 46b–56c, as to educational support orders, General Statues § 46b–66a, as to the conveyance of real property, General Statutes §§ 46b–81 and 46b–82, regarding the assignment of the marital estate, and alimony, respectively, General Statutes § 46b–84, as to support and medical insurance for the minor children, General Statutes § 46b–62, regarding attorneys fees, the case law as it has developed regarding these matters and other relevant federal and state laws regarding the issues that confront the court.   The court has considered the parties' arguments, proposed findings of fact and proposed orders.   In the course of the hearing, the court heard testimony from the parties and their witnesses and received documentary evidence.

I. FINDINGS OF FACT

A. Jurisdictional Findings

The plaintiff and the defendant were married on December 17, 1994, in Palm Beach, Florida.   The plaintiff has resided continuously in Connecticut for at least twelve months preceding the date of filing the complaint.   The court has jurisdiction over the marriage and the parties.   The parties have two children, Michael, twelve, and Molly, seven.   The family has not received public assistance.

For the reasons discussed hereinafter, the court finds that the marriage between the parties has broken down irretrievably and there is no hope of reconciliation.

B. Parties

The plaintiff was born in October 1964, and is presently forty-seven years old.   He resides in a leased condominium in Stamford.   The plaintiff obtained an undergraduate degree from New York University in 1985, a master's in business administration from New York University in 1986, and a law degree from Fordham Law School in 1991.   Since February, 2010, he has been self-employed in Stamford as an investment advisor and as a lawyer with a focus on trust and estate law.2  In 1993, he commenced employment at Skadden Arps as a trusts and estates lawyer.   In June 1999, he took FMLA leave following the birth of his son and upon his return found he was no longer on a partnership track.   He left in 2000, and obtained employment at J.P. Morgan as an investment advisor.   In 2002, he joined Smith Barney and thereafter Morgan Stanley from 2009 until April 2010.   He again took FMLA leave in 2004, following the birth of his daughter.   In February 2010, his employment was terminated after his arrest on drug-related charges.   Since then, he has not sought employment other than self-employment.   Unemployment benefits of approximately $1,500 per month expired in June 2011.3  Over the past six years, ending in calendar year 2010, his gross income has totaled $65,000, $58,000, $94,000, $113,000, $80,000 and $44,000, respectively, which is an average of $90,800.   For the 2011 calendar year he does not expect his income will exceed $55,000.   The court is optimistic, with this trial behind him, that the defendant's earing capacity will improve.4  From all the data presented to the court, considering the plaintiff's education and experience, and the revenues, expenses and costs of administrating his legal and financial businesses, the court finds that the defendant has an earning capacity, at present, of $75,000 in gross income and net weekly earnings of $980.   The plaintiff is in good health.

The forty-eight year old defendant was born in May 1963.   She obtained an undergraduate degree from SUNY Albany in Psychology/Business in 1985, and a master's in business administration from Northeastern University in 1987.   The defendant has been employed for nineteen years by Valassis Communications, Inc., which is headquartered in Livonia, Michigan.   She operates out of a local office in Shelton.   She presently serves as Vice President CPG Strategic Accounts/EAST.   She is required to travel overnight once per month for one or two nights.   She receives an annual salary of $232,000 and has access to a company vehicle.   She is eligible for management and sales bonuses as well as awards of stock grants and options.   In the 2011 calendar year the defendant received management and sales bonuses totaling $177,480.   Over the five year period ending in calendar year 2009, the defendant's total income was $479,000, $411,000, $351,000, $398,000 and $348,000, which is an average of $397,496.   The court finds that, including bonuses, the defendant enjoys $7,644 in gross weekly income and net weekly earnings of $4,940.

Throughout the marriage, both parties made contributions to the acquisition, maintenance, preservation and improvement of the marital assets, including real estate.   Although the defendant's economic contributions from employment were greater than that of the plaintiff throughout the marriage, the plaintiff made financial contributions from his employment earnings and investment strategies utilizing the family's assets.

C. Marital Property

The parties combined estates have a value of approximately $700,000.   As to the marital home at 138 Ridgecrest Road in Stamford, which was titled in the defendant's name for purposes of asset protection, the court finds its fair market value to be $950,000.5  With an outstanding home equity loan in the amount of $999,779,6 the property's net equity is a negative $49,779.   The investment property residence located at 37 Maryanne Lane in Stamford has a fair market value of $430,000.   With an outstanding home equity loan of $417,099, this property's net equity is $12,901.7

D. Additional Assets and Liabilities

The plaintiff has a security deposit of $5,550 and prepaid rent of $5,356.8  He has furnishing worth $8,000, jewelry worth $12,000, business operating accounts with a total value of $2,280, and a Webster checking/savings account with a value of $3,500.   He identifies liabilities to the IRS for $35,000 and to the Connecticut Department of Revenue for $12,000.   The defendant has a Merrill Lynch account with a value of $16,270, a Peoples Bank account with a value of -$3,259, VCI ComputerShare stock with a value of $28,088, P & G shares with a value of $3,533, furnishings with a value of $5,875, and jewelry with a value of $22,275.   The defendant identifies VCI NQ options with an undetermined value on her financial affidavit;  no expert testified regarding their value, and no documentary evidence of value was presented.   The defendant expects a 2010 tax refund of $38,713.

The plaintiff has a Roth IRA with a value of $25,698.   The defendant has a Valassis retirement savings plan with a value of $679,597 and a Merrill Lynch IRA with a value of $15,848.

The plaintiff operates a 2008 Range Rover with a net value of $34,575 and a 1988 Mercedes with a net value of $9,850.

The parties have significant short-term liabilities in their individual names.   The plaintiff identifies obligations totaling $669,369:  loans to his family, primarily his mother, totaling $400,000; 9  legal fees totaling $105,000;  tax liabilities totaling $47,000;  and obligations to his accountant as well as to other professionals involved in his case.   The defendant identifies liabilities totaling $106,300:  to her attorneys in the amount of $97,838, for tuition in the amount of $7,937;  and to Citibank in the amount of $525.

There are two court-ordered escrows totaling $704,295.   The plaintiff has escrowed funds in the amount of $399,997 and the defendant has escrowed funds in the amount of $304,298.

The AMC is owed $74,131.68 as of November 30, 2011, and the GAL is owed $52,683.73 as of November 29, 2011.10  Additionally Rutkin, Oldham and Griffin (formerly Rutkin, Oldham & Needle) is owed $9,867.25 and Dr. Eric Frazer, the court ordered evaluator, is owed $15,694.50.   A motion to terminate the stay pending appeal dated September 20, 2011, as it pertains to payment of fees in accordance with Practice Book § 61–11, was filed by the AMC at the commencement of trial.

E. Causes for the Dissolution of Marriage

The plaintiff attributes the breakdown of the marriage to the couple's emotional and social incompatibility.   He contends that from the beginning of the marriage there were frequent disagreements about the nature and extent of the defendant's business travel and his obligation to accompany her on business outings.   Although he appreciated that he was expected to participate as a spouse in the defendant's company functions, he resisted doing so.11  He describes the defendant as gregarious, hard-working and extroverted, and himself an introvert.

The plaintiff asserts that, after the birth of their first child, the parties agreed he would subordinate his career to the defendant's in the interest of spending more time with their children.   By way of example, he points to his use of FMLA leave in June 1999, following the birth of his son, which he contends took him off the Skadden Arps partnership track, and his use of FMLA leave in March 2004, after the birth of his daughter.   He also attributes his decision to pursue a career as a financial analyst and form Greenan Capital Management LLC 12 to the broader decision to leave the New York City workplace and be closer to home.   He contends the tensions increased markedly after the birth of their second child in March 2004, and his father's death in December 2004.13  Although the parties participated in couples and individual therapy, it was unsuccessful.   The plaintiff admits to infidelity in 2006, as well as an attempted overdose of prescription drugs the same year.   He acknowledges that, by 2008, he was severely depressed and suffering from “indescribable pressure.”   While he never missed work, he slept continuously when home and was numbed by a cocktail of drugs prescribed by his psychiatrist.   In the fall of 2008, after he passed out and was injured at home, he changed therapists and terminated his prescription drug protocol “cold turkey.”   From the plaintiff's perspective, the marriage was dominated by the defendant's career, which resulted in her absence from their relationship and parenting.

The defendant categorically rejects the plaintiff's assessment of the marriage.   She attributes the breakdown to the plaintiff's debilitating depression, including two suicide attempts and ultimately his multiple affairs.14  She describes the plaintiff as being as minimally involved as a parent, and living an emotionally distant and sometimes secret llife.   The defendant asserts that she and the plaintiff never had a discussion concerning her career taking priority in the family or the scaling back of his career.   Indeed, she contends the plaintiff took FMLA leave following Michael's birth only after her maternity leave expired and for the sole purpose of starting the real estate investment business.   The defendant asserts the plaintiff was particularly unhelpful with the children who, in her absence, were cared for by a nanny, even when he was home.   He never got up to care for the children at night.   She always cared for the children when she returned from work, and when she advised the plaintiff that she was exhausted or asked for his help, he was not empathetic.   On the rare occasion when she asked for his assistance and the nanny was unavailable he declined and insisted she hire a babysitter.   She cites the lack of any meaningful contribution to the family, specifically raising their children, as a significant stressor in the marriage.   The court finds that while the plaintiff made career decisions to work closer to home, avoid a New York City commute and enjoy “banker's hours,” the defendant remained the primary homemaker for the family and had primary responsibility for the children.

In 2005, the plaintiff stopped interacting with the family.   He refused to go to his son's hockey games,15 his sister-in-law's wedding or his daughter's recitals.   He returned from work, went to his room and slept.   When the defendant asked him to engage in marriage counseling he refused indicating that “people who engaged in counseling always ended up divorced.”   After the plaintiff passed out in their home in the fall of 2008 the defendant took FMLA leave for three months in order to focus on the plaintiff's health and the family.

The final straw was the plaintiff's refusal to make a commitment to fidelity.   In 2008, after the defendant learned of the plaintiff's initial affair, which had taken place in 2006, she confronted the plaintiff, who agreed to correct his behavior.   The defendant did not seek a divorce and, despite the lack of emotion in the marriage, she was content during the intervening period that was marked by less tension and confrontation in their relationship.   Within six months, however, she discovered a hotel room tag, and confronted the plaintiff, who admitted continuing affairs.   Moreover, the plaintiff declined to offer the defendant any guarantees that the affairs would stop.   Ultimately, the defendant made the decision that it was better for her children to be the product of a divorce rather than an intact, but dysfunctional family.   Finally, the defendant asserts that even after it became obvious that the marriage would end in divorce, the plaintiff acted irresponsibly, engaged in waste and dissipated the marital estate.   She notes his arrest on February 9, 2010, on drug-related charges, as a legitimate basis for her concern that he had been engaged in illegal, unsafe and inappropriate behavior.16

To the extent that the parties' assessments of the reasons for the breakdown of the marriage materially differ, the court finds the defendant's version more credible and persuasive.   The court finds that the plaintiff's pattern of deception and betrayal was entirely inconsistent with his marital obligations to the defendant.   The plaintiff's misconduct was the primary cause of the breakdown of the marriage.

F. Substance Abuse

The plaintiff was arrested on February 8, 2010, on drug-related charges.17  The defendant learned of the arrest when she received a text from a friend, advising her that the defendant's name was in the police blotter for narcotics charges.   The plaintiff was fired by Morgan Stanley/Smith Barney as a consequence.   He suspects the defendant or her allies shared the police report with his employer.18  On the advice of counsel, the plaintiff set ground rules for his interview with Dr. Eric Frazer, which consisted of no discussion of the details of his pending criminal matter, no review of the accompanying arrest affidavit and no forensic hair drug tests.   He advised Dr. Frazer that he did not think he had a substance-abuse problem and did not think he needed professional help for substance abuse treatment.   Although he successfully has completed a number of planned and random urinalysis tests since February 2010, he initially declined to partake in a hair follicle test as requested by the GAL, on the advice of his counsel, because follicle tests provide historical drug use information and would compromise his criminal case.19  Eventually, in November 2010, the defendant successfully underwent a hair follicle test.   The delay in successfully completing a hair follicle test, in part, resulted in the continued requirement of supervised visitation with his children.

When, at trial, the plaintiff was cross examined regarding his activities, associates, the possession and/or use of narcotics on February 9, 2009, and drug use generally, he invoked his Fifth Amendment privilege.   The court draws a negative inference from the plaintiff's refusal to testify concerning the February 9, 2010 incident and illegal drug use.   The court finds that the hair follicle test would only have compromised the criminal case if it had a positive result.20

G. Dissipation/Waste

The defendant's motion for contempt (No. 369), dated September 12, 2011, alleges numerous violations of the automatic orders.   The defendant claims that the plaintiff, without the knowledge or consent of the defendant, and in violation of the automatic orders:  1) drew on the credit lines secured by the investment property located at 37 Maryanne Lane in Stamford and expended all of those funds in the approximate amount of $420,000;  2) borrowed approximately $400,000 from his mother since the commencement of the dissolution action;  3) expended approximately $80,000 to make improvements to the Maryanne Lane property, which improvements were not made in the usual course of business or for customary and usual household expenses;  4) expended over $400,000 to pay legal fees since the commencement of the action;  and 5) withdrew over $50,000 from his retirement accounts and converted one of his retirement accounts from a traditional IRA account to a Roth account incurring a significant tax expense.   Separate and apart from the alleged violation of the automatic orders, the defendant also claims the plaintiff, within three months of receiving $450,000 from the Ridgecrest life insurance trust and notwithstanding two separate court orders that the money be held in escrow, frivolously spent the money on counsel fees and living expenses.   In short, the defendant alleges the plaintiff transformed his family estate, which had no debt and $1.5 million in equity in real estate, into an estate with $1.5 million in mortgage obligations and little equity.

The plaintiff argues he did not violate the automatic orders because he drew down $420,000 on the property at 37 Maryanne Lane, borrowed $400,000 from his mother and withdrew over $50,000 from his retirement accounts to make $80,000 worth of necessary repairs to the property at 37 Maryanne Lane, pay necessary legal fees and cover his living expenses.

Although extra expenses were necessary to establish the plaintiff's separate housing and secure legal representation, the plaintiff, without the knowledge or consent of the defendant, mortgaged assets, took out loans and converted assets, all the while exercising little restraint over his spending and acting with a sense of entitlement.  “To constitute contempt, a party's conduct must be willful ․ Noncompliance alone will not support a judgment of contempt.”   (Internal quotation marks omitted.)  Adams v. Adams, 93 Conn.App. 423, 431, 890 A.2d 575 (2006).  “An order of the court must be obeyed until it has been modified or successfully challenged.”  (Internal quotation marks omitted.)   Eldridge v. Eldridge, 244 Conn. 523, 530, 710 A.2d 757 (1998).   The court finds the plaintiff intentionally and willfully violated the automatic orders, and his unilateral expenditures depleted assets that would have otherwise been available for distribution.   The court finds the plaintiff in willful contempt of court.   Rather than issue a specific order to restore the funds at this time, the court has taken the plaintiff's self-help into consideration in fashioning its orders.

Indeed the court has carefully considered the statutory criteria in General Statutes §§ 46b–81 and 46b–82 regarding the assignment of the marital estate and alimony, respectively, and decided:  1) not to issue a periodic alimony award to either party, and 2) to have the children's post-secondary education be solely the defendant's responsibility.   Specifically, but by no means exclusively, the court considered the causes of the breakdown, the plaintiff's pre- and post-separation behaviors and actions, the plaintiff's passive-aggressive personality and confrontational approach, the custodial arrangements, the plaintiff's dissipation of the estate, and the abilities and needs of the parties in fashioning the equitable distribution of the available resources.

H. The Children

The plaintiff left the marital home a week after he filed for divorce on February 17, 2009.   From the start, the temporary parenting plan implemented by the parties was undercut by their difficulty coparenting and multiple incidents of passive aggressive communication and arguments.   While both parents have contributed to difficulties in communication from time to time,21 the plaintiff's arrest, unresolved questions about his substance use, and his avoidance of contact and communication with his children for several months during the summer made the defendant vigilant, cautious and controlling.

Dr. Frazer conducted two evaluations.   In the first, dated November 30, 2010, their son, Michael, was found to harbor a great deal of distress as a result of his parent's separation.   Sad, angry and frustrated, he suffered without a consistent therapist.   One course of therapy ended prematurely,22 the other had a false start,23 and the third began after an unnecessarily lengthy hiatus because of the plaintiff's objections.   Michael's disrupted therapy fostered a heightened level of mistrust and skepticism of the therapeutic process.   As of the most recent evaluation in September 2011, Michael appears relatively content, proud of his academic performance and adjusting to a less intimate school environment.   He expresses a desire to spend more time with the plaintiff.   He remains, however, reluctant to participate in the therapeutic process, which he finds painful.   The failure to engage in consistent therapy has been a substantial psychological setback.24  Fortunately, Michael's relationship with the defendant provides structure, oversight and guidance.

Molly was found to be a bright and socially engaging child, who thinks about issues concretely, and has been able to avoid much of the emotional distress suffered by her brother.   She succeeds academically and socially, and enjoys positive experiences with both parents.   From all the information provided to the court, the court finds Dr. Frazer's assessment of the children to be accurate and compelling.

Despite desiring joint custody, the plaintiff's post-separation parenting experience has been characterized by minimal contact with his children.   Shortly after the plaintiff's arrest in February 2010, the court, Schofield, J., in March 2010, ordered that the plaintiff's parenting time be supervised.   Supervised visitation was problematic from the start.   Although the visits themselves were uneventful and meaningful for the children, the plaintiff found it humiliating to visit his children with a supervisor and overwhelming to think of “begging to see his kids.”   The plaintiff withdrew from participation in any supervised visitation on June 10, 2010, for approximately three and one-half months.25  He cites a number of excuses for the failure to see his children, including the expense of supervised visitation, a disagreement with the GAL/AMC over the conditions needed to terminate the supervision requirement, changing attorneys and his gallbladder surgery.   Although he offers that he spoke by phone with his children on a daily basis, the phone calls were a poor substitute for visitation with his children.   There simply are no excuses for the plaintiff's three and one-half month absence from his children's lives.   Even recently, the defendant has offered to make-up the plaintiff's parenting time and/or provide flexibility in scheduling, and the plaintiff has rejected the offers insisting that the parties follow the “court order.” 26  The plaintiff's all-or-nothing approach to visitation, literal interpretations of visitation orders and refusal to conduct drug testing have prevented modification to unsupervised access.   His behavior is self-sabotaging.

These few examples, culled from the eleven-day trial, reflect the plaintiff's difficulty incorporating the point of view of others, and in particular his difficulty prioritizing his children's needs and preferences over his own.   Dr. Frazer found the plaintiff exhibits self-righteous thinking, that is, the inability to take other people's point of views into account, which comes at the expense of hurting or ending relationships.   These are borderline personality features.   Dr. Frazer found the plaintiff is rash, impulsive and passive-aggressive.

When Dr. Frazer confronted the plaintiff concerning his behavior, the plaintiff was unable to provide clinically consistent explanations.   For example, after a second episode of suicidal ideation, he terminated his long-term psychiatrist, indicating simply that he wished to see another professional.   But when he was confronted as to why he did not follow the new professional's recommendation for psychiatric treatment and cognitive behavioral therapy, he replied that it was futile to do so because he would not enjoy confidentiality while the court evaluation process was ongoing.   The plaintiff lacks accountability.

Dr. Frazer's updated report, in September 2011, concludes that the plaintiff's psychological functioning continues to be of significant concern.   The plaintiff's psychopathology is chronic and will remain unresolved unless he engages in mental health treatment.   Although the plaintiff insists he is “symptom-free,” flexible communication with others, empathy for his children and prioritization of their needs over his own continue to be areas of difficulty.   The plaintiff fails to appreciate that his uncompromising nature directly and negatively affected his children.   The court found the testimony of Dr. Frazer compelling and convincing.

The court finds that the defendant exercises better judgment and flexibility.   Her decisions concerning the children's emotional and developmental needs are appropriate and consistent.   On the other hand, the plaintiff demonstrates inflexibility and faulty reasoning, and he makes hasty decisions which are not in the children's best interest.

Coparenting has been a difficult problem for the parents and the trend is not favorable.   Both parents had identical and unfavorable scores on the Parenting Alliance Measure, which evaluates coparenting perceptions.   As noted above, both parties have contributed to the poor communications since the separation, however, the plaintiff's behavior is significantly worse.   For example, until recently he has insisted that the defendant drop off and pick up his children at the guard booth of his gated community, effectively portraying the defendant as a safety threat.   There was no justification for this action, which incorporated his children in the conflict.   On a number of occasions when the defendant has attempted to communicate with the plaintiff during visit transfers, he has been dismissive of her and her effort.   Recently during the trial, there were a couple of promising, seemingly spontaneous peaceful interactions between the parents.   While hopeful, the recent “breaking of bread” does not represent a trend upon which the court can rely.

In devising its orders, the court must look to the criteria of the various statutes dealing with custody of minor children.  Section 46b–56(b) directs the court to enter custody orders “that serve the best interests of the child and provide the child with active and consistent involvement of both parents commensurate with their abilities and interests.”   That statute goes on to enumerate sixteen separate factors for the court to consider in devising such orders.   Some of those factors that seem most pertinent to this case include:  “the capacity and the disposition of the parents to understand and meet the needs of the child ․ the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent ․ [and] the mental ․ health of all individuals involved ․” General Statutes § 46b–56(c).

The “best interest of the child” standard is the ultimate basis of a court's custody decision.  Knock v. Knock, 224 Conn. 776, 789, 621 A.2d 267 (1993).   Either parent can be awarded custody and the issue “is not which parent was the better custodian in the past but which is the better custodian now.”  Yontef v. Yonef, 185 Conn. 275, 283, 440 A.2d 899 (1981).

Public policy, as expressed most clearly in § 46b–56a, favors an order of joint custody whenever such an order is requested by the parents and would be in the best interests of the child.   These parents have agreed in the past to exercise joint legal custody, but that has not been a success for either the parents or, more importantly, for the children.   This is a case where the best interests of the child dictate a change in the custody arrangements.

II. ORDERS

Based on the foregoing finding of facts, the court orders the following:

1. The marriage of the parties is dissolved on the basis of irretrievable breakdown.

2. Custody and Parenting Plan

2.1 The defendant shall have sole custody of the minor children, who shall reside primarily with the defendant.   Pursuant to Conn. Gen.Stat. § 46b–56(g), both parents have the right of access to all academic, medical, hospital or other health records of the minor child.   The defendant will immediately inform the children's schools, medical providers, extracurricular activity providers, etc., (and will so notify all in the future) that the plaintiff is to be provided with all information ordinarily provided to parents.   The defendant will promptly provide the names or all such current and future providers to the plaintiff.

2.2 Regular Parenting Schedule.   The plaintiff shall have the following parenting time with the children:

2.2.1 Every Wednesday from after school/camp until 7 p.m., with both children;  and

2.2.2 Every other weekend from Friday after school/camp until Sunday at 6:30 p.m., with both children.   If the weekend is a long weekend (i.e. no school on Monday), then the weekend will be extended to 6:30 p.m. on Monday;  and

2.2.3 Every Thursday from after school/camp to 6 p.m., alternating visits with each child, for one-on-one time.

2.3 When the children are attending school or camp, the plaintiff shall pick up the children at school/camp, as applicable.   If the children are not attending school or camp each party shall pick the children up at the other party's residence.

2.4 The plaintiff shall submit to hair follicle drug testing, substantially similar to the testing conducted by Dr. Frazer as part of his initial evaluation, at the plaintiff's sole expense.   He shall do so every two months until 180 consecutive days of abstinence from illegal drugs is established.   The next test shall be completed within seven days, and must cover the time period back to the last test (October 9, 2011).   All drug tests shall be coordinated through the GAL.

2.5 The parents may, but are not obliged to, make mutually agreed upon, written changes to the parenting plan schedule.   Should the parents agree in writing (via OFW) to make a change to the parenting plan for a particular incident, the change shall be deemed to be binding for that incident with all the enforceability otherwise contained in this order, so that both parties may then rely on the agreed change.   Any changes made to the schedule by written agreement of the parties will be deemed to be effective for that single incident only, and the other provisions contained in the parenting order will continue to remain in effect at all times.

2.6 During his parenting time, the plaintiff is responsible for taking the children to their sports/activities.

2.7 Holiday/Summer Parenting Schedule.

2.7.1 The Holiday/Summer Parenting Schedule shall supersede the Regular Parenting Schedule.

2.7.2 Thanksgiving:  In even years, the plaintiff shall be with the children from 6 p.m. on the Wednesday before Thanksgiving until 6 p.m. on the Sunday after Thanksgiving.

2.7.3 Christmas/New Year:  In even years, the plaintiff shall be with the children from December 30 at 10 a.m. until the evening before school recommences at 6 p.m. In odd numbered years, he shall pick up the children on the last day of school prior to the holiday break, and have them until 10 a.m. on December 30.

2.7.4 Mother's Day/Father's Day/Parent's Birthday.   The defendant shall have the children from 10 a.m. to 7 p.m. on Mother's Day and on her birthday.   The plaintiff shall have the children from 10 a.m. to 7 p.m. on Father's Day and on his birthday.

2.7.5 Winter/Spring Break:  In even years, the plaintiff will have first choice of either Winter or Spring Break with the children.   In odd numbered years, the defendant will have first choice.   The break will begin on the last day of school before the break and end at 6 p.m. on the day preceding the children's return to school.   The parent with first choice must notify the other, via OFW, of which break he/she will take no later than 6 p.m. on the Sunday after Thanksgiving.

2.7.6 Summer:  Each parent will have the children for three full weeks of vacation.   A vacation week shall commence on Saturday at 12 p.m. and end the following Saturday at 12 p.m. (seven nights).   No more than two weeks may be consecutive.   In odd years, the plaintiff will choose his weeks first.   In even years, the defendant will choose her weeks first.   The parent with first choice must communicate their election no later than January 31, via OFW.

2.7.7 Failure to make timely elections as to vacation/break time will result in a forfeiture of the right to make first choice for that vacation/break for that year.

3. The plaintiff shall return 100 percent of the family/children photos and videotapes removed from 138 Ridgecrest Road within fourteen (14) days.   The defendant shall be responsible for arranging the duplication of any photos, films, recordings, etc. within sixty (60) days of the later of receipt of said items or the plaintiff's written request (to the extent duplicates are requested in email by the plaintiff.)   The defendant shall obtain a cost estimate, and the plaintiff shall pay 50 percent of that estimate in advance of any duplication of any photos, films, recordings, etc.   The estimate shall include the cost of any reasonably priced requested frames, albums, etc.

4. Child Support.   The plaintiff will pay to the defendant child support in the amount of $105 per week, which is in accordance with the child support guidelines.   In addition, the plaintiff will pay 17 percent and the defendant 83 percent of the unreimbursed medical and dental expenses as provided for in the guidelines.   The definition of a medical and dental expense is to be broadly construed, to include but not be limited to medical, dental, orthodontic, hospitalization, optical, pharmaceutical, and psychological and/or psychiatric counseling and/or treatment.

5. Medical Insurance.   The defendant shall provide and maintain medical insurance on behalf of the children for so long as she is able to do so under the terms of her policy.   The plaintiff shall be responsible for his own health insurance.   The plaintiff may avail himself of COBRA benefits, if any, under the defendant's insurance, at his sole expense.

6. Alimony. No alimony is awarded to either party.

7. Property Division.

7.1 Real Property Division:

7.1.1 Property division of the residence at 138 Ridgecrest Road in Stamford.   The defendant shall be entitled to sole ownership of the former marital residence located at 138 Ridgecrest Road in Stamford, which is currently titled to the defendant.   The plaintiff shall transfer to the defendant, upon request, by quitclaim deed, any and all interest he may have in this property within twenty-one days and the defendant shall be solely responsible for the mortgage(s), taxes and insurance with respect to said property and all other costs and expenses for utilities, repairs and maintenance associated with a property.   The defendant shall indemnify and hold the plaintiff harmless from the same.

7.1.2 Property division of the residence at 37 Maryanne Lane in Stamford.   The plaintiff shall be entitled to sole ownership of the former marital residence located at 37 Maryanne Lane in Stamford, which is currently titled to MTG Capital LLC. The defendant shall transfer to the plaintiff, upon request, by quit-claim deed, any and all interest she may have in this property within twenty-one days and the plaintiff shall be solely responsible for the mortgage, taxes and insurance with respect to said property and all other costs and expenses for utilities, repairs and maintenance associated with a property.   The plaintiff shall indemnify and hold the defendant harmless from the same.

7.2.  Automobiles:  The plaintiff shall be the sole owner of the Range Rover and Mercedes.   The plaintiff shall be responsible for all costs and expenses associated with said vehicles.

7.3.  Personal Property (including Jewelry):

7.3.1 The plaintiff shall keep the contents of the property located at 37 Maryanne Lane in Stamford.

7.3.2 The plaintiff shall keep the contents of his current residence located at 2539 Bedford Street, # 37–C in Stamford.

7.3.3 The defendant, subject to the provisions of section 7.3.4 below, shall keep the contents of the property at 138 Ridgecrest Road in Stamford.

7.3.4 The parties shall each retain their own clothing, jewelry, family heirlooms and other personal effects, including items he or she may have received as gifts from the other party.

7.4 Disposition of Funds in Escrow Accounts:

7.4.1 The plaintiff shall keep the balance of funds currently remaining in his escrow account.   Said amount is $399,997.

7.4.2 The defendant shall keep the balance of funds currently remaining in her escrow account.   Said amount is $304,298.

7.4.3 The escrowed funds shall not be released until the parties pay their respective obligations to the GAL, AMC and Dr. Frazer as set forth in paragraph 12 below.

7.5 Retirement fund/accounts.27

7.5.1 The plaintiff shall retain his Roth IRA and his Webster checking/savings account.

7.5.2 The defendant shall retain her Wells Fargo joint account, her Merrill Lynch account, her Peoples Bank account, her P & G shares, her employment-related securities, including but not limited to the Valassis Communications Common Stock, the Valassis Communications Restricted Stock, the Valassis Non–Qualified Stock Options, and her Merrill Lynch IRA.

7.5.3 Valassis Retirement savings plan:  The defendant shall transfer to the plaintiff from her Valassis Retirement savings plan the sum of $115,000, plus or minus gains or losses from the date of judgment to the date of distribution via a QDRO. The parties shall equally share the cost and expenses necessary to effectuate such transfers including if applicable, QDRO preparation, filing, approval and implementation.

7.5.4 The children's 529 accounts shall continue to be maintained for the benefit of Michael Greenan and Molly Greenan.   The defendant shall be the custodians of those accounts.

7.6 The plaintiff shall keep any and all interests which he may have in the following:

7.6.1 The Greenan Law Firm LLC

7.6.2 Greenan Capital Management LLC

7.6.3 MTG Capital LLC

8. Provided each parent is current on any child support, unreimbursed medical/dental, extracurricular and post-secondary education expenses, as outlined in this decision, each party may claim a minor child for state and federal tax purposes.   At such time when there is only one eligible child, the parties shall alternate claiming that child as a dependent commencing with the defendant.

9. College Education.   The defendant shall be responsible for the educational expenses of the minor children consistent with the provisions of § 46b–56c.   The court shall reserve jurisdiction under § 46b–56c and make orders with respect to the educational expenses for the minor children.28

10. Taxes. The parties shall be entitled to their tax refunds and responsible for their tax obligations.   Each of the parties will indemnify and hold the other harmless with respect to any deficiency found by reason of that party's income or deductions.

11. Counsel Fees. Each party shall be responsible for their respective attorneys fees, for to order otherwise would undermine these financial orders.

12. Within sixty (60) days the parties shall each pay one-half of the outstanding fees and costs to the AMC, Melissa Needle, the GAL, Eric Broder, Rutkin, Oldham and Griffin (formerly Rutkin, Oldham & Needle) and the court ordered evaluator Dr. Eric Frazer.   See order 6.4c above.

13. Liabilities. Each party shall be responsible for the remaining liabilities listed on their respective financial affidavits and will indemnify and hold the other harmless therefrom.

14. For so long as the parties have a child support obligation to each other, the parties will annually exchange their W–2's, 1099's, K–1, similar forms and other evidence of active or passive income by February 15 each year, and, will provide each other with their federal tax returns within five days of filing.

15. Each party is ordered to sign whatever documents are necessary and, as presented to them by the other party, to effectuate these orders within four days of presentment.   These orders are effective immediately.

THE COURT

HARRY E. CALMAR, JUDGE

FOOTNOTES

1.  FN1. The court found the evidence was not likely to affect the decision.   See, Kane v. Kane, 118 Conn. 291 (1934).

2.  FN2. The plaintiff operates his businesses as Greenan Law Firm LLC and Greenan Capital Management LLC.

3.  FN3. The plaintiff receives a pendente lite alimony award of $4,000 per month.

4.  FN4. Based on this likelihood the court will require each party to provide to the other documentation of income on a yearly basis for so long as any of the court's financial orders remain in effect.

5.  FN5. The parties purchased the home in 1998–99 for $750,000.

6.  FN6. Initially the home equity line of credit was debited in the amount of $100,000 for the purpose of making renovations, repairs and other purchases for the marital residence including furnishings.   Thereafter the parties withdrew an additional $900,000 that was loaned to the Ridgecrest Trust, a life insurance trust, which the plaintiff created in 1988.   The defendant and their children are the sole beneficiaries.   Following the commencement of this action the trustee returned funds totaling $900,000 to the parties.   What remains of those funds is in two court-ordered escrow accounts.

7.  FN7. In 2004 the property was purchased for approximately $430,000.   Initially unoccupied it underwent a $30,000 renovation before it was rented in 2007 by the plaintiff's parents.   The plaintiff's mother paid rent of $2,000 per month.   She stopped paying rent in July 2009 on account of the $400,000 she loaned to the plaintiff.   In 2010, the property underwent a second $90,000 renovation with funds from the equity line of credit.

8.  FN8. According to his February 16, 2011 financial affidavit, the plaintiff's rental expense was $2,775 per month.   In March 2009, he pre-paid his rent in the amount of $18,588.   He spent approximately $25,000 furnishing the premises.

9.  FN9. The plaintiff twice appealed an order to place the $450,000 he received from the Ridgefield trust in escrow.   The first order was issued by Judge Shay in June 2009.   While the appeals and requests for reconsideration, were pending the plaintiff spent substantially all of the monies.   After the appeals were dismissed, the plaintiff was compelled to borrow funds from his family in order to establish the court-ordered escrows.

10.  FN10. The court has reviewed the affidavits regarding attorneys fees submitted by the GAL and AMC and finds them fair and reasonable under the circumstances of this difficult and lengthy case.

11.  FN11. In 2004, he prematurely left a Texas /Arizona company trip advising that he had been “called back to work,” which left the plaintiff angry and furious.

12.  FN12. The LLC was formed to purchase, rehabilitate and rent real estate in Stamford.

13.  FN13. The parties have not enjoyed intimacy since 2004.

14.  FN14. The plaintiff citing his current therapist argues there was only one suicide attempt.   Whether or not the second incident was a suicide attempt or suicidal depression, it was an acute clinical episode and a psychiatric emergency.

15.  FN15. At one point the plaintiff, without the defendant's knowledge, contacted his son's principal and advised her that he did not want his son to miss any classes in order to play hockey.   The principal declined to intervene, citing the plaintiff's failure to consult with the defendant and the fact that Michael not only missed classes for hockey but for other extracurricular activities, none of which appeared to harm his son's academic performance.

16.  FN16. The plaintiff rejects the defendant's concern that he had or continues to have a substance-abuse problem.

17.  FN17. Throughout the trial the plaintiff and others referred to his arrest as the “incident.”   The plaintiff's criminal case was resolved with a court-ordered diversionary program.   The plaintiff reports that the charges against him were erased pursuant to General Statutes § 54–142a (e)(3) and takes the position that the arrest and circumstances that led up to it, in light of the erasure, are not material to these proceedings.

18.  FN18. The plaintiff asserts the defendant shared the police report with school officials who though polite, have him “under observation,” which is stressful and has had a chilling effect on his ability to visit his children's school.   The court finds the arrest of the plaintiff on drug-related charges was a published fact known in their community.

19.  FN19. Depending on the length of the hair sample a hair test can provide active substance abuse data for a retroactive period of sixty to ninety days.   The plaintiff acknowledged that after February 9, 2010, at a time when the GAL was requesting that he undertake a hair follicle examination, he shaved the hair on his body, chest, legs and underarms.   He denies getting a shorter haircut than was his custom.

20.  FN20. Prior to the conclusion of the trial, and in light of the fact that no additional drug testing had been conducted since the initial custody evaluations on November 30, 2010, the court suggested that the plaintiff have an updated hair follicle drug test to provide a more complete record for the court.   The plaintiff successfully completed a hair follicle test on October 9, 2011.

21.  FN21. The defendant acknowledges losing her temper in front of the children and has expressed regret over that behavior.

22.  FN22. Therapy with Dr. Brodlie was terminated prematurely by the plaintiff.

23.  FN23. Therapy with Christine Lawlor, LCSW was unilaterally terminated by the plaintiff after he discovered she was not a doctor as represented in the initial referral.

24.  FN24. Therapy with Dr. Israel was delayed and frustrated by the plaintiff's refusal to participate in the process.   Continuing therapy with Dr. Israel is of the utmost importance.

25.  FN25. On September 18, 2010, supervised visitation resumed.

26.  FN26. Recently, the plaintiff declined to see his children on his birthday, even though the defendant offered to facilitate time for them to see him.

27.  FN27. The court has considered the tax consequences associated with the deferred compensation funds retained by the parties.

28.  FN28. The court finds it is more likely than not that the parents would have provided support to the children for higher education or private occupational school if the family were intact.  General Statutes § 46b–56c(c).

Calmar, Harry E., J.

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