Riva Cohen v. Matthew Cohen (2010)

MEMORANDUM OF DECISION

This matter was tried before the court, on October 12th, 13th and 14th, 2010.   The Plaintiff, Defendant and several witnesses testified and exhibits were introduced.   The court has considered all of the credible evidence presented to it and carefully considered the respective criteria for orders of child support, health insurance, payment of child's medical expenses, alimony, property settlement, division of debt, and award of counsel fees.   The court makes the following findings of facts and orders:

The parties were married on October 5, 2002 in Fort Lauderdale, Florida.   The court finds that it has jurisdiction over the marriage.   One of the parties has lived in the State of Connecticut for more than one year prior to bringing this action.   The following minor children have been born to the parties since the date of the marriage:

Cameron Leigh, date of birth November 20, 2006;  and

Brendan Eli, date of birth November 6, 2008.

No other minor children have been born to the wife since the date of the marriage.   The parties are not receiving state assistance.   The court finds that the marriage between the parties has broken down irretrievably and there is no reasonable prospect of reconciliation.

The Plaintiff and Defendant are both in their mid-30s and in good health.   Mrs. Cohen has been a real estate transactions attorney since 1999 and is licensed in Connecticut and Mississippi.

Mr. Cohen is a college graduate employed as a television meteorologist for WTNH-TV Channel 8 in New Haven for 8 years.

The couple met when Mr. Cohen was employed in the Jackson, Mississippi area in 1999 and became engaged in late summer 2001.   In May 2002 the Plaintiff left her employment as a partner in her father's law firm to relocate to Charlotte, North Carolina where the Defendant was employed as a weatherman.   Mrs. Cohen was employed as a paralegal in North Carolina until the couple moved to Connecticut in December 2002.   The Plaintiff's employment in Connecticut was initially as a paralegal and later as an associate after being admitted to the Connecticut bar in 2004.

After the birth of the couple's first child the wife returned to work after a 3-month maternity leave.   The Plaintiff, Defendant shared child care duties and hired a part-time nanny.   The Plaintiff testified that the Defendant frequently called her at work to ask her to return home early either because he couldn't cope with his infant daughter or due to commitments to appear at charitable events.¹  Eventually, the Plaintiff was asked by a partner to stay in the office until 5 pm and later asked to stay until 7 pm.   The Plaintiff refused and as a result was laid off.

Mrs. Cohen collected unemployment compensation until employment as in-house counsel for a title insurance company in April 2008.   Due to the housing market crash and a national companywide reorganization the Plaintiff was laid off in October 2009.

The Plaintiff presented evidence that she had made 87 unsuccessful job inquiries in the past year.   At the time of trial Mrs. Cohen covers an average of 3 closings per week for a Rhode Island attorney.   An examination of the Plaintiff's job search history reveals that she applied to a majority of law firms not specializing in real estate transactions and sent out at most 2 applications per week.   In addition, she only sought work as an attorney despite the fact that she is well qualified to perform paralegal work and as such would earn substantially more than reported on her current Financial Affidavit.

Mr. Cohen also suffered a loss of income during the pendente lite period.   His contract expired in December 2009/January 2010 and he was reduced to part-time employment for several months.   When he did get a contract in April 2010 his salary was reduced from approximately $100,000 to $70,000.   Mr. Cohen is supplementing his income from WTNH-TV with freelance work on radio, TV and hosting game shows in various venues.

The couple purchased a home in New Haven in 2008 and moved in shortly after the birth of their son.   The Plaintiff's parents came to Connecticut and lived with the couple from Labor Day 2008-until several days before Christmas 2008.   Mrs. Cohen's father assisted with the renovation of the home every day and her mother assisted with child care.

The renovations of the home exceeded the budget by more than $100,000 and resulted in financial pressure on the couple.   Unable to secure reasonable bank financing the couple borrowed from Mrs. Cohen's father.

The Plaintiff and Defendant both agree they received a total of $134,000 from maternal grandfather.   The wife testified that the full amount was a loan.   Mr. Cohen acknowledged a loan of $75,000 and testified that no mention of repayment of $59,000 was ever made.   The parties agree that neither a promissory note or mortgage was signed nor was a gift tax return filed by maternal grandparents.   The Plaintiff and her father are currently suing the Defendant in a separate civil action and have an attachment on the balance of the funds held in escrow from the sale of the home in August 2010.

Mrs. Cohen claimed the marriage failed due to verbal abuse, 3 incidents of alleged domestic violence and the husband's withdrawal from his wife and children beginning in 2008.   The court examined the correspondence between the parties on Our Family Wizard and their respective testimony at trial.

The court finds that the Defendant was verbally abusive and demeaning of the Plaintiff.   Mr. Cohen exhibited no respect for the demands a legal career made on his wife and used degrading and derogatory language in front of the minor children.   The Defendant frequently made changes to the parental access schedule pendente lite to accommodate his work or extracurricular activities.   These changes were frequently communicated at the last minute and were phrased as demands rather than requests.   If the Plaintiff is to become self supporting the Defendant must fully recognize the demands of her career and appreciate he is solely responsible for providing alternate care for the children during his parental access if he has pressing job demands.

The court also finds the Plaintiff's testimony regarding her allegations of physical violence and frequency of verbal abuse was artificially amplified as a result of her desire to relocate.

Mrs. Cohen took no responsibility for the demise of her marriage and had virtually nothing good to say about her husband.

Mr. Cohen freely acknowledged the Plaintiff was a wonderful mother and attributed the demise of the marriage to a lack of communication by both parties.

The Plaintiff testified she had an offer from her father to return as his partner in his Jackson, Mississippi real estate law practice, that she was unable to find work in Connecticut, and that she and the children could live in her parent's home in Madison, Mississippi until she could afford her own apartment or home.

The evidence and testimony introduced at trial demonstrated that the maternal grandfather had been semi-retired for the past 16 months, as the maternal grandparents lived with the wife and children in Connecticut and maternal grandfather (Clifton Smith) returned to Mississippi once every 6 weeks.

Mr. Smith testified he earned $30,000 in 2009 working 1/4 time and estimated he and his daughter could earn $120,000 working full time.   Unfortunately, no evidence of law firm expenses such as rent, secretarial salaries or any other business expense was introduced at trial.   The court can only speculate what father and daughter could earn by resurrecting his practice.

Multiple witnesses testified that the cost of living and housing in Mississippi was lower than Connecticut.   However, no evidence as to the cost of housing, food, utilities or clothing was introduced at trial.   The court cannot speculate and has no evidence on which to make a finding of fact that the cost of living in Connecticut exceeds Mississippi, or if it does by how much.

The Family Relations Officer's report and testimony did not favor the relocation of the minor children.   Mr. Holt testified that he observed that both parents had a warm and loving relationship with the children.   Mr. Holt testified that children ages nearly 2 and nearly 4 need frequent contact with both parents and relocation would prevent Mr. Cohen from adequate time with the children.

The Guardian Ad Litem, Attorney Lynn Pellegrino testified and agreed with the Family Relations Officer's recommendation the children were too young and distance too great for a relocation to be in their best interest.

Under the decision in Ford v. Ford, 68 Conn.App. 173, 789 A.2d 1104, cert. denied, 260 Conn. 910, 796 A.2d 556 (2002), the court must, in considering relocation during a dissolution proceeding, base its decision, as with other questions concerning custody and visitation of the minor children, on the best interest of the children involved, as required by General Statutes § 46b-56(b).

In assessing their best interests, the factors set forth in Ireland v. Ireland, 246 Conn. 413, 717 A.2d 676 (1998), “may be considered as ‘best interest factors' and give guidance to the trial court, [but] they are not mandatory or exclusive” in relocation cases such as this arising in the initial judgment contest.  Ford v. Ford, 68 Conn. at 184.

Connecticut courts have cited many factors that may affect a child's “best interest,” ranging from those recited in Ireland and its antecedents to others such as the child's interest “in sustained growth, development, well-being, and in the continuity and stability of [his] environment;” Capetta v. Capetta, 196 Conn. 10, 16, 490 A.2d 996 (1985);  the child's specific needs;  the nature of the child's relationship with each parent;  the degree of contact maintained with each parent;  and the potential benefit of detriment of retaining that connection with each parent.   See e.g. Seymour v. Seymour, 180 Conn. 710ff;  Janik v. Janik, 61 Conn.App. 175, 181, 763 A.2d 65 (2000), cert. den., 255 Conn. 940, 768 A.2d 949 (2001);  Rudolewicz v. Rudolewicz, CLT No. 39, p. 664, Superior Court, Judicial District of Hartford-New Britain (October 6, 1986, Arena, J.).

In making its decision here, this court has considered the body of case law regarding best interest, the specific facts of this case, the testimony and credibility of the various witnesses here, and the court's assessment and evaluation of the best interests of these specific children.

The court finds the GAL's and Family Relation's Counselor's testimony persuasive regarding the custody and care of the minor children, both of whom are very young (almost 2 and almost 4).

No single factor has controlled the decision of the court.   The court concludes, after weighing all the evidence, and considering all the factors relevant to the children's best interest, that it is not in the best interest of these children to relocate with Mother to Jackson, Mississippi.   The children's sustained growth, development, and well-being require that both custodial parents be physically present and have frequent contact to offer them.

The court finds that the Cohens took on many of life's major stressors in rapid succession:  marriage, they each had different religious upbringing, relocation to a state where neither had family/friends, high stress jobs, 2 children born 2 years apart, the purchase and extensive renovation of a home, financial problems and in-laws living with them for four months.   The court finds that the “perfect storm” of stressors listed above was the primary cause(s) of the dissolution of the marriage.   Neither party bears the fault for the termination of the marriage.

ORDERS

After considering all of the statutory criteria set forth in General Statutes § 46b-84 as to support of minor child, § 46b-215a-1 et seq., Regs. Conn. State Agencies, as to child support, § 46b-62 as to counsel fees, § 46b-81, as to assignment of property and transfer of title, § 46b-82, as to the award of alimony, § 46b-84, as to medical insurance for minor child, together with applicable case law and the evidence presented here, the court hereby enters the following orders:

1. DISSOLUTION OF MARRIAGE

A decree dissolving the marriage, on the grounds of irretrievable breakdown, shall enter on October 19, 2010.

2. CUSTODY AND PARENTAL ACCESS

a. The Mother and Father shall have joint legal custody of the minor children, who shall make their primary residence with Mother, subject to the right of liberal and reasonable parental responsibility schedule set forth below.

b. It is not in the best interest of the children that the children relocate to Jackson, Mississippi, unless the Father accepts full time employment outside the state of Connecticut that substantially impacts the parental access plan outlined below.   In the event Father accepts full time employment outside Connecticut that makes the parenting responsibility plan herein impractical, Mother shall be entitled to relocate to the Jackson, Mississippi area.

c. Father's parenting responsibility shall be from noon Sunday overnight until Tuesday at 6 pm and every Friday afternoon from 1 pm to 6 pm.   Pick-up and drop-off shall take place at daycare, preschool or school.   In the event the children are not in daycare, preschool or school pick-up and drop-off shall take place at a public library (children's section) located 1/2 way between the parents' homes or places of employment.   In the event a public library is closed pick-up and drop-off shall be at a child friendly fast food restaurant such as McDonald's or Burger King located 1/2 way between the parent's homes or work.   If the parties cannot agree on a consistent location the GAL shall choose.

d. If Father is unavailable to personally care for children during his period of parental access, he shall be 100% responsible to provide care for the minor children.   Mother shall have the right of first refusal in the event that Father is unable to care for the children during his parenting time.   Mother is under no obligation to exercise her first right of refusal.

e. Mother's parental access shall be from Tuesday at 6 pm to Sunday noon (except for Friday 1 pm-6 pm).  If Mother is unavailable to personally care for the children during her period of parental access she shall be 100% responsible to provide alternate care for the minor children.   Father shall have the right of first refusal in the event that Mother is unable to care for the children during her parenting time.   Father is under no obligation to exercise his first right of refusal.

f. Mother and Father shall give each other 48 hours advance notice of any parenting responsibility rescheduling request except in the case of a medical emergency or death of a family member.

g. Mother shall live in reasonable proximity to Father's home in Branford, Connecticut.   Reasonable proximity is defined as no more than 15-20 miles apart or 15-20 minutes by automobile in rush traffic.   Rush traffic shall be defined as daycare/school arrival and dismissal.

h. It is in the best interest of the minor children that their parents co-parent in a peaceful manner.   The Plaintiff and Defendant shall continue to attend co-parenting counseling with Dr. Robert Horwitz, Ph.D. until such time as his assistance is no longer needed.   Father shall attend anger management therapy with a provider covered by his insurance.

i. The Defendant shall submit to the GAL names of several therapists for anger management therapy (covered by his medical insurance carrier) and the GAL shall choose the provider.   The Defendant shall remain in anger management therapy until the therapist deems it no longer necessary.

j. The GAL will remain involved with this family post-judgment.   She shall have full access to the parties' communication on Our Family Wizard, releases from Plaintiff and Defendant for the co-parenting counselor and the Defendant's anger management therapist.   This information is necessary for the GAL to monitor full compliance with court's orders.   The fees of the GAL post-judgment shall be paid by the parents equally in a timely manner.

VACATIONS AND HOLIDAYS

The parties shall alternate all holidays except:

1.  Christmas Day and Easter shall be with Mother.

2. Jewish holidays-Passover, Rosh Hashanah, Yom Kippur and Hanukkah shall be with Father.   In the event of a conflict between Christmas and Hanukkah Mother shall have the children from Christmas Eve at 6 pm to Christmas Day at 6 pm.

3.  The minor children shall be with the mother on Mother's day weekend and the Mother's birthday.   The minor children shall be with the Father on Father's day weekend and the Father's birthday.

4. Each parent shall have two weeks (nonconsecutive until the youngest child is 6 years old) vacation with the minor children.   Parents shall give each other 60 days advance notice of vacations.

Neither parent shall discuss the scheduling or rescheduling of parental access time with the minor children in advance of direct communication and agreement with the other parent.   If the parents are unable to agree they shall use the services of the co-parenting therapist and/or the GAL prior to filing motions with the court.

MEDICAL CARE

The Father and Mother shall both have the right to be present with the children for medical, dental and orthodontic check-ups and treatment.   Both parents shall notify the other of regularly scheduled well care visits within 24 hours of making the appointment utilizing the www.OurFamilyWizard.com web site.   In case of an emergency, either parent shall take the child for treatment.   The other parent shall be notified as soon as practicable of the incident.   All health/medical issues that occur relating to the minor children during the Father or Mother's parenting schedule SHALL be communicated to the other parent immediately.

Information about the children's medication shall be exchanged by any convenient means in addition to making entries in the parents' communication through the use of www.OurFamilyWizard.com.

In case of an emergency, the care-providing parent shall immediately (defined as within 3 hours of the incident) contact the other parent.   Mother and Father shall both be entitled to complete and full information from any physician, therapist, psychologist, psychiatrist or similar type professional attending the child for any reason and from any teacher or school giving instruction to the children.

MISCELLANEOUS

a. In matters concerning parenting, each party shall endeavor to further the best interests of the minor children and facilitate close ties between the minor children and the other parent.   Neither party shall arbitrarily hinder nor interfere with the relationship of the minor children with the other party.

b. Each parent shall exert every reasonable effort to maintain free access and unhampered contact between the minor children and the other parent, subject to the terms of this order.   Neither parent shall do anything which may estrange the minor children from the other parent or which may hamper the free and natural development of the minor children's love and respect for the other parent.

c. Each parent shall be entitled to reasonable telephone contact (once per day, during reasonable hours of the day and evening, but in no event later than 7:00 p.m. and no longer than 15 minutes) with the minor children while said children are in the care of the other parent, including holidays and vacations, at the expense of the contacting party.   The minor children shall be entitled to unfettered telephone contact initiated by the minor children to each parent.

d. Each party shall keep the other reasonably informed as to the whereabouts of the minor children at all times they are with the Plaintiff or the Defendant, and the case may be.   The parties shall provide each other with an advance itinerary listing the dates, addresses and telephone numbers of each place he/she intends to take the minor children at any time the minor children do not sleep at his/her residence for two or more consecutive nights during any period.

e. Each party shall keep the other informed of his/her place of residence and telephone number, cell phone number and work telephone number, and shall promptly notify the other of any changes during the minority of their children.   Each parent shall report any changes to the other parent in writing via www.ourfamilywizard.com web site within 48 hours of any change.

f. Each party shall have free and unhampered access to all records and information concerning the welfare of the minor children including, without limitation, school, medical, psychological, and dental, and to be furnished with copies of all reports given by such people directly from the provider/institution.   Further, each party shall be entitled to all information from any teacher or school giving instruction to the minor child, and to be furnished with copies of all reports and documents (which shall also include notices of PPT meetings, parent meetings, school performances, extracurricular activities and the like given by such teacher(s) or school(s) directly from such teacher(s) or school(s)).  Each party shall be responsible for securing such medical, educational or other information for himself/herself directly from such third parties and neither party shall restrict or interfere with the other party's right to receive such information.

g. The parties shall keep each other advised of upcoming events and activities in the academic and social life of the minor children so that each may attend and participate in those events and activities.   The parties shall also share equally any tickets distributed or otherwise available for school and extracurricular activities/events, if same are limited in number.   Each party shall bear the cost, if any, of his/her share of such tickets.

h. Neither parent shall disparage the other parent in the presence of the minor children and shall make their best efforts to insure no other person shall engage in an inquiry of the minor child.

i. Neither parent shall schedule or discuss with the children activities that occur during the other parent's scheduled time with the children.   If a change is requested, the parents shall communicate via e-mail solely utilizing www.OurFamilyWizard.com and reach an agreement before the child is told of any change.

j. The court finds that it is not in the best interest of the minor children to have access to the details of the divorce proceedings.   The minor children shall not be given access by either parent or a third party to the Family Relations Counselor's written evaluation, any transcripts of the court proceedings in this matter, or the written decision of this court.

k The children shall continue to be known by the Father's surname and the terms “mommy/mom” and “daddy/dad” shall continue to be used only to refer to the parties.

l. The parties shall use the OurFamilyWizard.com web site to communicate information regarding the minor child.   Mother shall send Father an e-mail through the web site every Monday and Father shall respond by Wednesday.   The parties are both ordered to use the web site for all other non-emergency communications and scheduling of the children's activities and changes to the parenting responsibility orders.   The Plaintiff and Defendant shall each be liable for the cost of his/her own use of the OurFamilyWizard.com web site.   The communication of the parties through the web site shall be civil and polite.   In the event of future disputes between the parties the parties' use of the web site shall be made available to the court and children's representative.

m. The Mother and Father shall discuss all major education and medical issues such as repeating or skipping a grade, and assessing for special education programs or gifted programs, Mother shall have final decision making authority ONLY after consultation with Father, and if that fails joint consultation with the co-parenting therapist and/or the GAL.

n. The parents shall both be listed as persons to be notified in case of an emergency.   Their names, telephone numbers and addresses shall be listed on all school, caretaker, healthcare provider, and activity records, and shall be updated within 48 hours of any change of information.

o. The parent who has responsibility for the children on a particular day may participate in activities such as field trips or athletic activities, but the other parent may attend if the general public is invited.   Neither parent shall interfere or create difficulties if both are attending an event involving the child.

p. Mother and Father shall discuss and agree in writing planning school year enrichment activities, such as music lessons or sporting activities, any summer enrichment activities.   In the event extracurricular activities fall on Father's parenting time, he shall be responsible to see that the children are delivered to the activity on time.

q. Both parents shall notify the other parent immediately in the event of a medical emergency.   This includes all information concerning such emergency.

3. CHILD SUPPORT

Father shall pay mother child support in the amount of $250.00 per week pursuant to the Child Support Guidelines.

The parties shall divide all unreimbursed dental, medical, optical, orthodontic, psychological and optical expenses of the minor children 50/50 within 30 days from date of service or date of notice from the other parent.

The cost of all work-related day care shall be equally shared by the parents.

4. MEDICAL INSURANCE

Father shall maintain the medical and dental insurance for the minor children if it is available through his employers at a reasonable cost (defined as not exceeding 7.5% of his net income).   If Father loses health insurance benefits for the minor children, he shall notify the other parent within 24 hours by certified mail return receipt required of the loss of such coverage.   In that event the children shall be covered under mother's medical/dental insurance policy if such is available to her at a reasonable cost as defined by the Child Support Guidelines.   If neither parent had medical/dental insurance available to him/her at a reasonable cost the parties shall cooperate and register the children for HUSKY insurance sharing equally any premium charged by the state.   Any unreimbursed medical, psychological, optical, dental and orthodontic costs shall be shared by both parents equally.

The husband and wife shall each be responsible to obtain and pay for the cost of his/her own medical insurance and shall be solely liable for all unreimbursed medical expenses.

5. ALIMONY

The Defendant shall pay to the Plaintiff the sum of $200.00 per week as alimony for a period of two years from the date of dissolution, thereafter the Defendant shall pay the sum of $125.00 per week alimony to the Plaintiff for a period of two years.   Alimony shall be modifiable as to amount but not as to term.   Alimony shall terminate on the death of either party, the Plaintiff's remarriage or cohabitation pursuant to the statutes.

6. PROPERTY SETTLEMENT

a. The family home was sold and the closing attorney is holding $57,251.91 in escrow.   The full amount shall be the sole property of the wife and she shall hold the husband indemnified and harmless from any/all claims made by her/her parents for the sum of $59,000.00 loaned to the couple to pay for the renovation of the home.

b. The balance held in the escrow account by the defendant's attorney shall be applied to any outstanding balance due the GAL and any excess divided evenly.

7. RETIREMENT ASSETS

All retirement assets earned during the marriage shall be divided with 1/2 the value as of the date of dissolution being awarded to each party.   Any transfers shall be by means of a rollover to a qualified plan or Qualified Domestic Relations Order, if needed.   The parties shall equally share the cost of preparing the necessary documents.

All retirement assets earned by either party prior to the marriage shall remain his/her sole property.

8. LIFE INSURANCE

The parents shall both maintain a policy of term life insurance naming the other parent trustee for the benefit of the minor children.   The parties' Financial Affidavits lists term life insurance policies with face amounts of $1,000,000.   The insurance is necessary to protect the future financial support of the minor children if either parent dies prior to their children reaching the age of majority or completing his post-secondary education.

9. DEBTS

The parties shall be solely responsible for the liabilities which are listed on their respective financial affidavits.

10. EDUCATIONAL SUPPORT ORDER

The court shall retain jurisdiction over educational support orders until the youngest minor child reaches the age of twenty-three (23), pursuant to Connecticut General Statute § 46b-56c.   Either party may petition the court for the establishment of an educational support order until such time.

11. TAX EXEMPTION

Mother shall be entitled to claim the oldest child and Father shall be entitled to claim the youngest child as long as his child support, daycare and share of unreimbursed medical expenses are paid in full by 12/31 each year.   When the oldest child is no longer available as a dependency exemption the parties shall alternate the youngest child.

12. LEGAL FEES

The husband and wife shall each pay 1/2 the legal fees charged by the Guardian Ad Litem within 60 days of the date of judgment.   The court finds the fees reasonable and necessary and in the best interest of the minor child.

The husband and wife shall be solely liable for their own legal fees and costs.

By the Court,

Holly Abery-Wetstone, PJ

FOOTNOTES

FN1. Both parties agreed that the Defendant's appearance and participation at charitable and community events was expected by his employer..  FN1. Both parties agreed that the Defendant's appearance and participation at charitable and community events was expected by his employer.

Abery-Wetstone, Holly, J.