Katherine R. Aitken v. William M. Aitken (2010)

MEMORANDUM OF DECISION

This is an action for dissolution of marriage.

The court finds that plaintiff (whose maiden name was McGahee) intermarried with the defendant on July 4, 1992, in East Hampton, CT. This court has jurisdiction of the action, all statutory stays have expired, and the defendant, having been personally served with process, has appeared herein and was present at trial with his counsel.

The court further finds that the marriage has broken down irretrievably.

The parties have three children issue of the marriage, namely Jade H. Aitken, born November 8, 1993, Isabella I. Aitken, born May 31, 1999, and Curtis C. Aitken, born October 18, 2002.

I. Custody

The parties were at odds as to custody of their children.   The court heard testimony from each, as well as from Family Relations Officer Renee Saltzman, and from the court-appointed guardian ad litem, Susan Asselin-Connolly.

When a court is resolving a dispute between separated parents over the custody of their children, Conn. Gen.Stat. § 46b-56 directs it to enter orders that serve the best interests of the child and provide the child with the active and consistent involvement of both parents commensurate with their abilities and interests.   The rights and responsibilities of both parents shall be considered, and the options allowable include an assignment of parental responsibility for raising the child to the parents jointly or an award of custody to either parent or to a third party, according to its best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable.

Section (c) of that statute contains a non-exhaustive list of factors which a court may consider in reaching its determination, and this includes:

(1) The temperament and developmental needs of the child;  (2) the capacity and the disposition of the parents to understand and meet the needs of the child;  (3) any relevant and material information obtained from the child, including the informed preferences of the child;  (4) the wishes of the child's parents as to custody;  (5) the past and current interaction and relationship of the child with each parent, the child's siblings and any other person who may significantly affect the best interests of the child;  (6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders;  (7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute;  (8) the ability of each parent to be actively involved in the life of the child;  (9) the child's adjustment to his or her home, school and community environments;  (10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the child's family home pendente lite in order to alleviate stress in the household;  (11) the stability of the child's existing or proposed residences, or both;  (12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child;  (13) the child's cultural background;  (14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child;  (15) whether the child or a sibling of the child has been abused or neglected, as defined respectively in section 46b-120;  and (16) whether the party satisfactorily completed participation in a parenting education program established pursuant to section 46b-69b.

Each parent requested an order of joint custody.   The major difference is that plaintiff seeks primary residence of the children with her, whereas defendant proposes that instead of either parent being primary, they share that status and the children live about half the time with each.

At the time of trial, defendant was residing in the marital home in the town of North Stonington, along with his new girlfriend, Loretta Vrabel.   He is 38 years old and works as an oil heating technician.   He was home-schooled and describes himself as having completed one year of high school.   He has a history of serious alcohol and prescription-medicine abuse which he denies.   This addiction caused him the loss of his previous job, and was one of the proximate causes of the marital breakdown.   It also has come between him and his children, as he has frequently been intoxicated to the point of irresponsibility for their care.   While he has apparently maintained relative sobriety over the past year, he has shown no inclination to acknowledge the severity or deep-rootedness of his condition so as to find help necessary to avoid relapse.

Plaintiff is living in the town of Stonington.   She is 37 years old, and works as a teacher's aide in the Waterford school system.   She completed high school.   She suffers from Attention Deficit Disorder which is maintained with medication.

Jade is just completing junior year at Wheeler High School in North Stonington.   She is an average student whose relationship with her father had been quite hostile until a few months ago, but is now improving.   She is highly motivated to continue to attend Wheeler, and will only be able to do so if she is deemed to be residing with him in North Stonington.   She is not estranged from her mother, and has been living primarily with her for most of the past two years.   Continuing to do so under a final court custody decree, however, would cause her to have to transfer to a different high school for senior year.   Reportedly, Jade would be strongly opposed to that transfer.   The court is aware that at age 16, a child forced to go to a school not of her own choice might opt for emancipation, and that is an option not suitable for this child.

Isabella is finishing fourth grade at Dean's Mill Elementary School in Stonington.   She struggles academically, but appears the best adapted socially of the three Aitken children.   She, too, has been in the primary care of plaintiff since the parties separated.   She needs extra help to succeed in school, and plaintiff has been consistent in supplying that help.   Isabella appears comfortable with both parents and is able to spend time in the defendant's residence without expressing any distress.

Curtis is finishing the second grade, also at Dean's Mill, and has also lived primarily with plaintiff since the parents separated.   Like Isabella, he faces academic challenges.   His social development, however, is a matter of deep concern.   The guardian ad litem described him as “the most ineffably sad child” she had observed in some time.   The Family Relations Officer reports that she met him on three occasions during which he appeared “deeply saddened” and “very affected by the divorce.”   His teachers described “a sadness in him which is not typical of an average seven-year old.”   One source of this sadness is the distance from his father caused by the parents' separation, by the defendant's alcoholism, and by the tensions within the defendant's home.

Clearly, this is a family with many needs.   Sadly, it is also a family which has never had substantial resources to address those needs, and whose limited resources have been lost in the course of this litigation.   Plaintiff is working at virtual minimum-wage rates, earning about $325 per week.   There does not appear to be much potential for her to achieve a higher level of earnings without additional job training.   Defendant earns about $16 per hour, and reports that his employment has a seasonal cycle-busier in the winter, slacking off in the summer.   The family home is subject to a judgment of foreclosure.   Defendant has been dealing with the mortgage holder to attempt redemption, and he is confident that those efforts will succeed.   Even if he is able to redeem that parcel, keeping the house will absorb most of his energy and spare cash.   He reports unsecured obligations exceeding a year's earnings, and the family is now saddled with a guardian ad litem's bill that approaches $10,000.   In the aggregate, these financial realities are dire;  even if the Aitkens do not wind up homeless, it is certain that their economic distress will deprive their children of many opportunities which other families may take for granted-including the opportunity for intensive counseling which appears necessary if the children are ever to recover fully from the impact of their parents' divorce.

In the face of these many challenges, plaintiff has done the best she can to foster the growth of her children intellectually, emotionally, and morally.   The court accepts the guardian's assessment that plaintiff is “a proactive agent for change.”   Probably she would be more effective if defendant actually supported her in this endeavor.   Instead, he has spent the eighteen months in which this case has been pending demanding “shared” custody, with much energy expended on denigrating plaintiff's abilities and commitment to her children.   His motivations for this strategy are unclear.   He testified that this was the proper outcome because “life is short” and he “wants to be there for them.”   His blindness to the role his own behavior has played in the plummeting fortunes of his family is remarkable, as is his narcissist persistence in claiming shared custody over the recommendations of both the family relations officer and the guardian ad litem.

One of defendant's criticisms of plaintiff might be valid.   Witnesses describe her living unit as so small that she lacks her own bedroom and sleeps on the couch.   Despite these cramped quarters, she has apparently allowed an unrelated male to spend considerable time in the premises, and it was suggested that he is not the first such friend to do so.   Considering that defendant is openly cohabiting with someone whom plaintiff does not trust, and that there was no evidence of present risk to the children other than defendant's unsubstantiated suspicions, the court at this time will merely admonish plaintiff to choose carefully who she permits to be in such close proximity to her children.   Unrelated male acquaintances may evolve into suitable permanent life partners;  on the other hand, they may have different and less benign intentions.   The safety of her children must always be paramount in her decisions.

As to Isabella and Curtis, the court finds that awarding their primary custody to plaintiff is clearly in their best interests.   Until defendant comes to terms with his own problems, access to both of these children should be limited.   However, all adult witnesses informed the court that Curtis needs more rather than less time with his father, albeit quality time as opposed to being left with Ms. Vrabel or her children.   Accordingly, the orders below provide for such additional, one-on-one time for the father and son to be together.   The access schedule, furthermore, is a base only.   If the parents negotiate different hours or days, the court has no present concern that this would pose a danger to either child, as long as defendant recognizes the primacy of his role with the children when they are in his company.

As to Jade, the court is constrained to choose the lesser of two evils:  on the one hand, awarding her primary custody to plaintiff, which would be the better home but would have the consequence of her losing the right to attend Wheeler;  on the other hand, awarding the parents shared custody and forcing her to spend time in defendant's home which she has resisted in the past.   Of these, the latter is less risky than the prospect that she would, if forced do so, find her own lodging in North Stonington regardless of what this court orders.   The order reflecting this choice is based specifically upon defendant's continuing to maintain a residence in North Stonington.   Should he move to a different town, that alone would be deemed a substantial change of circumstance warranting another look as to what is in this child's best interest.

All access, with any one of the children, is conditioned upon defendant's abstention from any alcoholic beverage, or any non-prescribed medication, during and within twelve hours preceding the visit.   Further, he shall not permit the children to be in the presence of any other adult who is abusing those substances.

II. Child Support

On the assumption that the court would order shared custody, defendant proposed that the court deviate from a strict application of child support guidelines.   This is now moot as to Isabella and Curtis in light of the custody orders.   The court has considered, and rejected, a deviation on account of Jade. The two reasons for this are, first, that the court will allow him to claim both Jade and Isabella for tax purposes, a provision that will save him several thousand dollars per year in federal tax payments.   Secondly, given the uncertainty in the particulars of this case how much time Jade will actually reside with him notwithstanding the nominal designation of her residence, the court does not find that the deviation criteria for shared custody is applicable, in that it is not likely that plaintiff will have substantially reduced expenses for her, nor that defendant will have substantially increased expenses for her;  furthermore, subtracting any substantial sum from the support will likely deprive plaintiff of sufficient funds to meet this child's basic needs.

In light of those dependency allocations, the guidelines prepared by the court (see Addendum) indicate presumed support of $203 per week.

Both parents requested that the court retain jurisdiction to enter a post-majority educational support order if any of the three children attend college, as permitted by statute, and the court will do so.

The court also finds that the guardian ad litem is entitled to a fee in the amount of $9,800.   Plaintiff is ordered to pay 40% thereof, or $3920.   She was previously ordered to pay $800 of that, which is now overdue.   She must pay the $800 by July 15, and payments of $30 each week thereafter until the balance owed by her is paid in full.   Defendant shall pay 60% thereof, or $5,880, less a credit for $1,200 previously paid.   He shall pay the remaining $4,680 in weekly increments of $45 commencing on July 15.   Counsel for each of the parties shall prepare a promissory note for each client in favor of the guardian, and including provisions for interest and acceleration of the outstanding balance due in the event of default.

Defendant is found to be in arrears with respect to pendente lite orders of child support, in the amount of $485.

III. Property Settlement

The sole asset of any consequence left to the parties is their interest in the family home, and that is in imminent danger of foreclosure.   The court finds that the actual fair market value of the equity in the property is zero or less.   Title is in both names, as is the obligation to pay the first mortgage.  (It is unclear if there is a second mortgage, or merely an unsecured loan for which defendant is liable.)   Defendant has present possession of the home, and a plan for saving it from foreclosure.   He should be entitled to the reward of full title if he is successful, but he should also be subject to the risk of failure.   The orders set forth below are aimed at that allocation of risk and reward.

IV. Miscellaneous

Each party submitted a proposal requesting an order that both maintain life insurance naming the other as trustee for the benefit of the children until Curtis attains age 23.   That is a desired objective, consistent with public policy as articulated in Conn. Gen.Stat. § 46b-84(f)(1).   No evidence is before the court, however, from which it can be determined that such insurance now exists, or can be afforded, or that either party is insurable;  see, Watrous v. Watrous, 108 Conn. 813 (2008), and Boyne v. Boyne, 112 Conn.App. 279 (2009).   The court construes these reciprocal requests as tantamount to a limited agreement, and will incorporate said “agreement” as one of its orders.

Neither party has requested alimony.   Neither party is awarded alimony.

V. Orders

In light of the foregoing findings, and guided by the relevant statutes and case law which this court has fully considered, it is hereby ORDERED:

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

2) Custody of Isabella and Curtis is awarded to the parties jointly, with primary residence with plaintiff.   If the parties are unable to make joint decisions concerning either child's health, educational, or moral needs despite good-faith negotiations, then the decision on such matters may be made by plaintiff.   Defendant may visit with them as the parties agree, but in lieu of any agreement, on the following schedule:

a) On the first weekend of each month (with “weekend” defined as commencing on Friday), from Friday after school through Sunday at 6:00 p.m., with both children;

b) On the third weekend of each month, with both children from Friday after school through Saturday at 6:00 p.m., and with Curtis from Saturday at 6:00 p.m. through Sunday at 6:00 p.m.

c) In months with a fifth weekend, with both children as set forth in subparagraph (a);

d) Two weeks each summer, with each child.   These weeks may overlap, such that defendant may have both children at the same time, or may be discrete times with each child.   He shall notify plaintiff of his summer plans by July 1 or not less than two weeks preceding the first visit, whichever is earlier.

e) Thanksgiving, from Thursday at 9:00 a.m. through Sunday at 6:00 p.m., in 2010 and subsequent even years;

f) Christmas, from 9:00 a.m. on December 25 through January 1 at 6:00 p.m., in 2011 and subsequent odd years;

g) Winter break week in 2011 and subsequent odd years, and spring break in 2012 and subsequent even years, in each case from 6:00 p.m. on the last day of school until 6:00 p.m. on the last day of vacation.

h) Any holiday or vacation date set forth herein shall supersede the “weekend” provisions of (a) through (c), and the plaintiff shall have the children on vacations and holidays when the defendant does not have access with them as set forth in (d) through (g).

i) With Curtis, either Tuesday or Wednesday evening each week from 4:30 though 7:00 p.m., outside of defendant's home.

3) Custody of Jade, legal and physical, is awarded to the parties jointly, on the condition that defendant continue to reside in North Stonington.   For educational purposes, the home of the defendant shall be designated primary.   They shall determine among themselves the exact time she spends in the home of each parent.

4) At all times when any of the children are in his care, and for twelve hours prior thereto, defendant shall abstain from consuming alcohol or any non-prescribed medication.   He shall further provide that no adult in the children's presence abuse either of such substances.

5) Neither party shall disparage the other to or in the earshot of the children, nor permit others to do so.   Neither party shall involve the children in discussion of this litigation.

6) Each party shall continue to provide counseling for the benefit of the children, and shall cooperate with the recommendations of the children's counselor(s).  This provision is made with awareness of the parties' financial limitations;  accordingly, if such counseling cannot be provided by insurance or by a Good Samaritan, this provision shall not be invoked to require either party to pay any fee for such counseling beyond his or her share of co-pays.

7) As child support, defendant shall pay plaintiff $203 per week by immediate wage execution.   The court retains jurisdiction to enter educational support orders for each of the children.

8) Each party shall name the children on any policy of health insurance provided by his or her employer, at a cost not exceeding 7.5% of net income.   (If available to both, the parties may exercise their discretion so as to avoid duplicative coverage and costs).   Plaintiff shall pay 60%, and defendant 40%, of the children's uninsured medical costs.   The provisions of § 46b-84(c) are incorporated by reference.

9) Defendant may claim Jade and Isabella as dependents for tax purposes, and plaintiff may claim Curtis.

10) Defendant's $485 arrearage in pendente lite child support shall be paid to plaintiff within twenty days.

11) Plaintiff shall pay $3,920 to the guardian ad litem, of which she shall pay $800 by July 15, and payments of $30 each week thereafter until the balance owed by her is paid in full.   Defendant shall pay the guardian ad litem $4,680 in weekly increments of $45 commencing on July 15.   Counsel for each of the parties shall prepare a promissory note for his client in favor of the guardian, and including provisions, in the event of thirty days' default, for acceleration of the outstanding balance due and post-default interest at four per cent per annum.

12) Plaintiff shall quit-claim to defendant all her right, title, and interest in and to the premises located at 2 Nina Avenue, North Stonington.   In consideration therefor, he shall assume and hold her harmless as to any mortgage or tax obligations thereon, including any deficiency ordered paid by the court in a foreclosure action.   This provision is made in contemplation of the parties' obligations to support their children and is not dischargeable in bankruptcy.

13) Each party shall name the other as beneficiary, in trust, for the minor children, as to any life insurance now or hereafter provided by the party's employer, and any life insurance policy currently in effect.   Either party may add additional insurance at his or her election.   This provision shall expire on October 18, 2025.

14) Counsel for plaintiff shall prepare the judgment file.   Counsel for defendant shall prepare the quit-claim deed and related documents.

Boland, J.

Boland, John D., J.