Sandra Buggy nka Macvicar v. Glenn Buggy (2010)

MEMORANDUM OF DECISION

The plaintiff, Sandra Buggy, n/k/a Sandra MacVicar, filed for a dissolution of marriage with the defendant, Glenn Buggy on July 1, 2005.   They have two minor children, Jocelyn, born on August 23, 1997 and Kaela, on April 6, 2000.   On August 3, 2006, the plaintiff filed an amended complaint requesting a legal separation;  it was granted on August 11, 2006 by Judge Novak.   Their separation agreement was incorporated into the judgment of legal separation.

On April 16, 2008, the defendant filed a motion for modification of visitation and financial orders.   Thereafter, additional motions were filed by the parties, including a motion for the appointment of a guardian ad litem, for a psychological evaluation of the parties and, by the defendant, a motion for modification of visitation and financial orders on March 30, 2009.

On June 4, 2010, the plaintiff filed a motion in limine to preclude the defendant from presenting any evidence at the upcoming hearing in support of his proposed orders on the ground that they were outside of the relief sought within the defendant's motion for modification, the one which was filed on March 30, 2009.

On June 7, 2010, the court heard the plaintiff's motion in limine.   The motion in limine was directed at the defendant's proposed orders dated June 7, 2010, numbers one, three and six.   The motion requested the exclusion of evidence relating to the defendant's proposed change in custody and primary residence of the children, making any financial relief retroactive to April 21, 2008 and changing the amount of educational expenses owed by the defendant.   The court granted the plaintiff's motion because the defendant did not follow Practice Book § 24-26.   However, the court allowed the defendant to amend his motion for modification of visitation and financial orders and to amend his proposed orders.¹

On that same day, the plaintiff argued that if she weren't granted a continuance she would be denied the benefit of an expert.   However, the plaintiff did not make a formal motion on this issue nor did the court specifically rule on this matter.   It should be noted that, while the defendants called Dr. Robson as a witness, Dr. Robson was the court appointed evaluator whose appointment was stipulated to by both parties on February 18, 2009 and which became court ordered on February 23, 2009.   The court did note that a continuance would mean that the hearing to dissolve the marriage would have to be postponed.²  Subsequently on June 10, the parties agreed that the following provisions of the separation agreement were modifiable:  Article II (custody and visitation), Article III (unallocated alimony and child support) except 3.10 (debt of $78,450.46 owed by the defendant to the plaintiff), 3.11 (amount of $2000 borrowed from the minor children's account by the defendant) and 3.12 (payment of1/212 of the moving expenses of the plaintiff by the defendant).   The parties further agreed that Articles IV, VIII through XVIII were nonmodifiable.  (Transcript 6/10/10, pp. 7-8.)   Article V was not mentioned.

A hearing was held from June 7, 2010 through June 25, 2010.³  At the hearing the court had before it the defendant's amended motion to modify visitation and financial orders dated June 9, 2010 and the original motion to modify filed on March 30, 2009 along with a petition for a decree dissolving the marriage.   The amended motion included five additional paragraphs to the separation agreement, which stated:  (7F) “The defendant's relationship with his children has been adversely affected by the actions of the plaintiff such that a transfer of custody from the plaintiff to the defendant is in the best interests of the minor children”;  (7G) “The defendant's relationship with the children is so strained that it is in the best interests of the minor children that in addition to a change in custody from the plaintiff to the defendant, family counseling be ordered by this court”;  (7H) “The defendant's relationship with his children and his ability to spend any meaningful time with them requires that the court reexamine the issue of legal and physical custody of the children”;  (7I) “Article V of the separation agreement and judgment made provisions for the payment of college expenses for the children by the defendant.   Due to the significant decrease in his earning, the defendant is no longer able to meet the obligations set forth in Article V”;  and (7J) “In light of the children's ongoing therapy, which such therapy in large measure revolves around the children's relationship with the defendant, and the recommendation of other professional who have either treated or evaluated the children, it is in the best interests of the children that the prior orders of custody and parental access be modified by this court.”

The initial question before the court is to determine the scope of its jurisdiction and its powers regarding conversion of the judgment of separation into a judgment of dissolution.

LEGAL SEPARATION CONVERSION

The procedure to convert a decree of legal separation into a decree of dissolution is governed by General Statutes §§ 46b-65 and 46b-66 and Practice Book §§ 25-36 and 25-37.   Pursuant to § 46b-65(b) and § 25-36, a motion or petition for a decree of dissolution after legal separation may be filed at any time after the entry of a decree of legal separation and must state, inter alia, that the parties have not resumed marital relations.   Thus, “a party seeking to convert a legal separation into a dissolution under General Statutes 46b-65(b) must comply with Practice Book [§ 25-36] which requires the petitioner to state in the petition whether the parties have resumed marital relations.”  (Internal quotation marks omitted.)  Mignosa v. Mignosa, 25 Conn.App. 210, 214, 594 A.2d 15 (1991).  “[I]n order to grant such a decree, dissolving and terminating the marriage, the court need only find that the parties have not resumed marital relations since the entry of the decree of legal separation.”  Schaefer v. Schaefer, 26 Conn.Sup. 224, 224-25, 217 A.2d 70 (1965).

The separation agreement incorporated into the legal separation, however, is not binding on the court dissolving the marriage and will not automatically be incorporated into the dissolution decree.   The separation agreement entered at the time of the legal separation “is governed by ․ § 46b-66, which requires that the court inquire into the financial resources and actual needs of the spouses ․ The fact that the agreement was presumably found fair and equitable at the time of the legal separation, does not excuse the failure of the court to make such determination in the light of the situation of the parties at the time of the dissolution and to afford an opportunity for a hearing on the issues involved.”  (Internal quotation marks omitted.)   Mignosa v. Mignosa, supra, 25 Conn.App. 215-16;  see also 7 A. Rutkin & K. Hogan, Connecticut Practice Series:  Family Law and Practice with Forms (1999) § 10.11, p. 103.

“In a proceeding to convert a legal separation to a dissolution, there is a due process right to a hearing on the issue of whether the orders entered at the time of the legal separation are still fair and equitable when that issue is contested.”   7 A. Rutkin & K. Hogan, supra, p. 103.   See also Mignosa v. Mignosa, supra, 25 Conn.App. 216 (“although we hold that the trial court properly granted the defendant's petition converting the parties' legal separation into a dissolution of marriage, the trial court's incorporation of the prior orders entered in the decree of legal separation into the decree of dissolution of marriage without a finding that the orders were ‘fair and equitable’ at the time of the dissolution was improper”);  Szot v. Szot, 41 Conn.App. 238, 241, 674 A.2d 1384 (1996) (“A fundamental premise of due process is that a court cannot adjudicate any matter unless the parties have been given a reasonable opportunity to be heard on the issues involved ․”

Notwithstanding the decisions in Mignosa and Szot, there is a split of authority within the Superior Court regarding whether the trial court may modify a separation agreement when incorporating it into a dissolution decree because of the earlier Supreme Court opinion in Mitchell v. Mitchell, 194 Conn. 312, 481 A.2d 31 (1984).   In discussing the enactment of § 46b-65, the court in Mitchell stated:  “An obvious goal of the legislature in enacting § 46b-65 was to reduce the role of the court by creating a summary proceeding when there is no dispute between the parties.   To that effect subsection (a) contemplates that the court satisfy itself that the prescribed formal declaration has been filed before vacating the separation decree while subsection (b) contemplates a minimal role for the court when there is no dispute that the parties had not resumed marital relations.   When that is the case the statute requires the court to give effect to the parties' status and convert a de facto dissolution into a de jure dissolution.”  Mitchell v. Mitchell, supra, 321.  “A person seeking either a legal separation or a dissolution of marriage must file a petition pursuant to [General Statutes] § 46b-40.   If the court renders a decree of legal separation the parties may then pursue one of two avenues, the summary route under § 46b-65 or the trial route under § 46b-40 [grounds for a marriage dissolution].   The summary route contemplates mutual agreement of the parties either for a reconciliation under § 46b-65(a) or a dissolution under § 46b-65(b).  One of the purposes of Practice Book § [25-36] is to enable the court to ascertain whether the case is an appropriate candidate for summary disposition.   Therefore, in order to convert a legal separation into a dissolution under General Statutes § 46b-65(b) the petitioner must state in the petition whether the parties had resumed marital relations, pursuant to Practice Book § [25-36].   If the petitioner states that they have not resumed and the defendant admits to this in her answer;  Practice Book § [25-9];  then the court must, under Practice Book § [25-37], fix a time for a hearing.   At that hearing the court can further satisfy itself that there is no dispute that the parties had not resumed marital relations.   If it is thus satisfied and the petitioner is present, the court must grant the dissolution.   If the parties had resumed marital relations, even for a trial reconciliation, or the petitioner states in the petition that they did not resume and the defendant disputes that fact, the parties cannot proceed under the summary method of § 46-65(b) but must instead proceed under the general dissolution provision, § 46b-40.”  Id., 325-26.

In the concurring/dissenting opinion in Mitchell, Justice Shea disagreed that the parties were required to proceed under § 46b-40 because they had resumed marital relations.  Mitchell v. Mitchell, supra, 194 Conn. 328.   Instead, he argued that the parties could proceed under § 46b-65, with the court taking a second look at the separation agreement to determine whether it was fair and equitable under the circumstances.  Id., 329-30.   He stated that he “would find error in the failure of the court to hold a full hearing upon all of the issues related to the terms of the dissolution decree.   Although 46b-65(b) mandates a dissolution [when the parties have not resumed marital relations], it does not require that the terms of the legal separation decree automatically be repeated in the dissolution decree.   The terms of the separation decree are certainly not binding on the judge who enters the decree of dissolution, any more than a separation agreement would be binding ․ The effect of the separation agreement, which was approved in the legal separation judgment, is governed by General Statutes 46b-66, which requires that the court ‘inquire into the financial resources and actual needs of the spouses ․’ The fact that the agreement was presumably found ‘fair and equitable’ at the time of the legal separation does not excuse the failure of the court to make such a determination in the light of the situation of the parties at the time of dissolution and to afford the opportunity for a hearing on the issues involved.”  (Citation omitted.)  Id., 330.

After the Appellate Court opinion in Mignosa, however, various Superior Court decisions have held that the court is always required to make an inquiry as to the situation of the parties to determine whether the separation agreement is fair and equitable at the time of the dissolution.   See, e.g, Hibbard v. Hibbard, Superior Court, judicial district of New Haven, Docket No. FA 00 0446060 (June 9, 2008, Frazzini, J.) (relying on Mignosa to determine that the separation agreement was not fair and equitable in light of circumstances of the parties at time of dissolution);  Crabtree v. Crabtree, supra, Docket No. FA 94 0363150 (relying on statutory criteria and evidence for guidance to modify separation agreement before converting it into a dissolution);  McDaniel v. McDaniel, Superior Court, judicial district of Waterbury, Docket No. FA 04 4000415 (November 7, 2006, Cutsumpsas, J.T.R.) (42 Conn. L. Rptr. 305) (prior to converting separation agreement into dissolution decree, court must consider statutory criteria outlined in General Statutes §§ 46b-81 and 46b-82 to determine whether agreement is fair);  Myjak v. Myjak, Superior Court, judicial district of Middlesex, Docket No. FA 97 0083207 (November 17, 2000, Spallone, J.T.R.) (29 Conn. L. Rptr. 30, 31) (“A final distribution of property and financial orders after legal separation should not be based on a separation agreement without an inquiry by the court as to whether the agreement is fair and equitable at the time of the dissolution”);  Harris v. Harris, Superior Court, judicial district of New London, Docket No. FA 502129 (June 9, 1995, Vassington, J.) (granting new orders with respect to alimony and property division prior to converting the legal separation into dissolution of marriage because previous orders were no longer fair and equitable).

In the case of Gilbert v. Gilbert, Superior Court, judicial district of New Haven, Docket No. FA 04 0485657 (May 13, 2008, Swienton, J.) (45 Conn. L. Rptr. 553), however, the court did not follow the holding of Mignosa.   The court disagreed therein that, in all cases, it was required to determine whether the separation agreement was fair and equitable at the time of the dissolution.   It reasoned that those decisions, which held that way, were based on the misapplication of Justice Shea's concurring/dissenting opinion in Mitchell.  “The actual holding of Mitchell is that once the marital relations have resumed, the parties have vacated the decree of legal separation, and, therefore, in order to obtain a decree of dissolution, the parties must proceed under § 46b-40.   The decree of legal separation no longer exists ․ By resuming marital relations, they have altered their relationship in such a way that it would be inequitable to blindly enforce the agreement under the legal separation decree without determining whether it would be fair and equitable to do so.

“Conversely, when there has been no resumption of marital relations and no intervening change in their relationship, the statute requires the court to convert the decree.   To require a fresh look at the agreement when there has been no resumption of marital relations makes the decree of legal separation a nullity.   There would be no purpose in obtaining a legal separation.   Such a construction fails to give any effect to General Statutes § 46b-67(b) which provides:  ‘A decree of legal separation shall have the effect of a decree dissolving the marriage except that neither party shall be free to marry.’   “ Id.

As support, the court looked at the plain language of the statute and concluded that § 46b-65(b) specifically mandates that, if the parties have not resumed marital relations, then upon petition for dissolution, the court shall enter the dissolution decree.   Thus, it reasoned that the plain language supports the position that “[i]f the parties' relationship is unchanged, the court plays a minor role and merely converts the de facto dissolution to a de jure dissolution.”  Id., 553.

Moreover, the Gilbert court pointed out that the oft quoted language, “[a] judge in a dissolution proceeding performs a much greater role than that of a mere ministerial functionary”;  id., 555 n.9;  referred to a situation where the parties had resumed marital relations.   Thus, the court held that a judge's “affirmative obligation” to determine whether a settlement agreement is fair and equitable, under the circumstances, is limited to when the parties have resumed marital relations, and was not extended to every petition to convert a separation agreement into a decree of dissolution.”  Id. Accord Bemonte v. Bemonte, 44 Conn.Sup. 431, 435-36, 693 A.2d 739 [16 Conn. L. Rptr. 336] (1995) (declining to reevaluate the separation agreement prior to incorporating it into a dissolution decree because “[a]bsent a properly executed declaration or resumption of marital relations or intervention by court action opening the judgment for good reason, the judgment of legal separation, once the appeal period has expired, is final.   The division of assets and liabilities is also final.   An assignment of property is nonmodifiable.   Hence, the court is without jurisdiction or other authority to modify a final judgment of legal separation insofar as it assigns property.   The holding in Mignosa must give way to the holding of the majority in Mitchell, which controls the outcome of the present case”);  Haley v. Johnson, Superior Court, judicial district of Fairfield, Docket No. FA 00 0377734 (October 14, 2004, Owens, J.) (“Mitchell ․ and Bemonte ․ make clear that ․ a property division [pursuant to a separation agreement] cannot be reopened or modified after the passage of the appeal time or the statutory four-month period [for purposes of a dissolution].   The finality of property division would be meaningless and chaotic and would violate the statutory purpose of a judgment of legal separation”).

At the hearing, the plaintiff did not oppose the defendant's motion to convert the separation to a divorce.   The defendant testified that there had been no marital relations during the period of separation, and the court so finds.   Therefore, the court hereby enters an order dissolving the marriage and converts the decree of legal separation to a decree of dissolution.

Since this court allowed the defendant to amend his motion to modify as to the custody and access issues and the parties stipulated that the issues as to alimony and support are modifiable, the court will look at the custody, alimony, and support orders (including the educational support orders).   The court must first determine if there has been a substantial change in circumstances since the previous court orders.

ALIMONY

The award of alimony is governed by General Statutes § 46b-82, which states in relevant part:  “In determining whether alimony shall be awarded, and the duration and amount of the award, the court ․ shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to [General Statutes] Section 46b-81 [equitable distribution of property and debt], and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment ․”

The court is required to use the same criteria that determines an initial award of alimony as well as whether there has been a substantial change in the financial circumstances of one of the parties, but “its inquiry is necessarily confined to a comparison between the current condition and the last court order.”  Borkowski v. Borkowski, 228 Conn. 729, 738, 638 A.2d 1060 (1994).   The party seeking a modification of alimony “bears the burden of showing the existence of a substantial change in the circumstances.”  (Internal quotation marks omitted.)  Mundell v. Mundell, 110 Conn.App. 466, 473, 955 A.2d 99 (2008).  “[T]he moving party must demonstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it.   Because the establishment of changed circumstances is a condition precedent to a party's relief, it is pertinent for the trial court to inquire as to what, if any, new circumstance warrants a modification of the existing order.”  Borkowski v. Borkowski, supra, 228 Conn. 737-38.

CHILD SUPPORT

“[Section] 46b-86(a) governs the modification of child support payments.   The statute provides that a court may modify a final order for the periodic payment of child support on a showing that there is (1) a substantial change in the circumstances of either party or (2) a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to General Statutes § 46b-215a, absent the requisite findings that following such guidelines would be inequitable or inappropriate.   Section 46b-86(a) further provides in relevant part that ‘[t]here shall be a rebuttable presumption that ․ any deviation of fifteen per cent or more from the guidelines is substantial ․ General Statutes § 46b-86(a).’

“General Statutes § 46b-215b(a) provides in relevant part:  ‘The child support and arrearage guidelines ․ shall be considered in all determinations of child support amounts ․ within the state.   In all such determinations there shall be a rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount of support ․ to be ordered.   A specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case, as determined under criteria established by the commission under Section 46b-215a, shall be sufficient to rebut the presumption in such case.’  “ Gorton v. Gorton, 80 Conn.App. 52, 56-57, 832 A.2d 675 (2003).

EDUCATIONAL SUPPORT

With respect to an educational support order pursuant to General Statutes § 46b-56c, subsection (h) provides in relevant part that “an educational support order may be ․ enforced in the same manner as provided by law for any support order.”  (Internal quotation marks omitted.)  Sander v. Sander, 96 Conn.App. 102, 120, 899 A.2d 670 (2006).

CUSTODY AND ACCESS

“Under Connecticut law, the trial court's discretion as to custody and visitation is not limited to [adopting the specific custodial arrangement sought by one of the parties].   It has long been established that the court has an independent duty to inquire into custody arrangements even when the parties are in agreement ․ Further, it has been recognized that in contested custody proceedings, the interests of one or both of the parents may be adverse to the best interests of the child.”  (Citations omitted).  Fiddelman v. Redmon, 37 Conn.App. 397, 403-04, 656 A.2d 234 (1995).

“In any controversy before the Superior Court as to the custody or care of minor children ․ the court may make or modify any proper order regarding the custody, care, education, visitation and support of the children ․ The best interests of the child standard is the ultimate basis of a court's custody decision ․ [Our courts] have consistently held in matters involving child custody that while the rights, wishes and desires of the parents must be considered, it is nevertheless the ultimate welfare of the child which must control the decision of the court ․

“In modifying custody the court must either find a material change of circumstances or that the order sought to be modified was not based on an evidentiary determination as to the best interest of the child ․ The burden is on the party seeking modification to show the existence of a substantial change in circumstances ․ A finding of a material change in circumstances must be based on circumstances that have arisen since the previous order of custody ․

“After the final decree, this court has limited the broad discretion given the trial court to modify custody orders under General Statutes § 46b-56 by requiring that modification of a custody award be based upon either a material change of circumstances which alters the court's finding of the best interests of the child ․ or a finding that the custody order sought to be modified was not based upon the best interests of the child ․ The parties and the minor child have an interest in the finality of judgments which arises upon the entry of a custody order incident to a final dissolution decree, and from which stems the material change in circumstances rule of postdecree custody modification.”  (Citations omitted;  internal quotation marks omitted.)   Bernier v. Bernier, Superior Court, judicial district of New Haven, Docket No. FA 05 4004907 (June 1, 2010, Burke, J.);   see also Hall v. Hall, 186 Conn. 118, 122-23, 439 A.2d 447 (1982).

PROPERTY

Lastly, the court is without jurisdiction or other authority to modify a final judgment of legal separation insofar as it assigns property.⁴

LEGAL SEPARATION AGREEMENT

The written separation agreement provided, in pertinent part:

ARTICLE II CUSTODY AND VISITATION

2.1.  The parties shall have joint legal custody of the minor children.   The primary residence of the children will be with the WIFE.

2.2.  The current parenting plan is that the HUSBAND has the right to be with the children as follows:

a.  Friday evenings from 6:30 P.M. to 8:00 P.M. through June 15, 2006;

b. Sunday mornings from 8:30 A.M. to 2:00 P.M. during which the HUSBAND undertakes to take the children to church.

c. Monday evenings from 5:30 P.M. to 6:30 P.M. with Jocelyn.

2.3.  Commencing when the WIFE moves to the Hartford, Connecticut area, the HUSBAND will have the right to be with the children on Wednesday evening from 5:30 P.M. until 7:30 P.M. and on Saturday from 10:30 A.M. until 8:00 P.M. instead of the periods set forth in Paragraph 2.2.   He will be responsible to transport the children to and from their activities when he is with them.

2.4.  At the request of the WIFE, the HUSBAND shall be responsible for the children on any snow day and for any child who is ill and unable to go to school and for taking either child to a doctor's appointment during the WIFE's school year.

2.5.  The parties agree that the children shall have no contact with Nancy Buggy;  Rick and Theresa Buggy;  Lynn and Dave Reynolds;  Julie and Tony Collette;  Virginia MacVicar;  Susan and Todd Gay;  Thomas and Tansley MacVicar.

2.6.  The HUSBAND shall have holidays with the children as follows:

a.  Easter:  12:00 noon to 6:00 P.M.

b. Thanksgiving:  The Wednesday which is the day before Thanksgiving at 4:00 P.M. to Thanksgiving Day at 3:00 P.M. in even numbered years and from 3 P.M. to 9 P.M. Thanksgiving Day in odd numbered years.

c. Christmas:  Christmas Day will be split between the parties.   The children will be with the FATHER from 2:30 P.M. to 9:00 P.M. in even numbered years and with the FATHER from 9:00 A.M. until 2:30 P.M. in odd numbered years.

2.7.  The children will be with the WIFE for the February school break and with the HUSBAND for one week of the March school break.

2.8.  The children will have two non-consecutive weeks of summer vacation with each of the parties.

2.9.  The holidays, including Martin Luther King, Memorial Day and Columbus Day will be alternated between the parties.

2.10.  The children will be with the MOTHER on Mother's Day, with the FATHER on Father's Day and with each parent on their respective birthdays.

2.11.  The children will be with the MOTHER at all times during which they are not scheduled to be with the FATHER under the terms of this Agreement.

2.12.  The parties shall exert every reasonable effort to maintain free access, including a daily telephone call between the children and each of the parties and to foster a feeling of affection between the children and the other party.   Neither party shall do anything which may estrange the children from the other party nor injure the opinion of the children of their mother or father, nor act in such a way as to hamper the free and natural development of the children's love and respect for the other party.

2.13.  If either party has knowledge of any illness or accident or other circumstances seriously affecting the health or welfare of said children, the HUSBAND or the WIFE, as the case may be, will promptly notify the other.   Each party shall have the right to obtain copies of any reports from third persons concerning the health, education or welfare of said children.

2.14.  Each of the parties agrees to keep the other party advised of the other's residence and business telephone numbers and whereabouts of the children while said children are with the HUSBAND or the WIFE.

2.15.  The HUSBAND and the WIFE agree that they will discuss and confer with reference to matters of policy involving the children as to such topics as health, education, recreational activities, camps and colleges, and the parties agree that they will attempt to adopt a harmonious policy best suited for the best interest of the children.

2.16.  The parties acknowledge that the WIFE shall have the right to relocate with the minor children.   It is the expectation of the parties that the WIFE will relocate to Hartford during September of 2006.

ARTICLE III UNALLOCATED ALIMONY AND CHILD SUPPORT

3.1.  Commencing on August 1, 2006, the HUSBAND shall pay to the WIFE a sum equal to fifty percent (50%) of his annual gross base salary and/or draw as unallocated alimony and child support on a monthly basis in semi-monthly payments until the WIFE'S death, remarriage, co-habitation as defined by statute or November 1, of the year in which the youngest child reaches age 19 or sooner graduates from high school after reaching the age of 18, whichever event first occurs.   At the present time, the HUSBAND'S base pay is $150,000 per year and the monthly payment to the WIFE is $6,250.

3.2.  In addition, commencing on August 1, 2006 the HUSBAND shall pay to the WIFE fifty percent (50%) of all other income he receives from employment which he has the option to receive in the form of cash, including but not limited to all bonuses, fees and commissions, until the WIFE's death, remarriage, cohabitation as defined by statute or November 1, of the year in which the youngest child reaches 19 or sooner graduates from high school after reaching the age of 18, which ever event first occurs.

3.3.  Commencing November 1, of the year in which the youngest child reaches 19 or sooner graduates from high school after reaching the age of 18, the HUSBAND shall pay to the WIFE a sum equal to 30% of his annual gross base salary and/or draw on a monthly basis in semi-monthly payments until the WIFE's death, remarriage or co-habitation as defined by statute, whichever event first occurs.

3.4.  In addition, commencing on November 1, of the year in which the youngest child reaches 19 or sooner graduates from high school after reaching the age of 18, the HUSBAND shall pay to the WIFE 30% of all other income he receives from employment which he has the option to receive in the form of cash, including but not limited to all bonuses, fees and commissions, until the WIFE's death, remarriage or co-habitation as defined by statute.

3.5.  All payments provided for in ARTICLE III of this Agreement shall be made to the WIFE by an automatic deduction directly from the pay of the HUSBAND and there shall be a wage execution against the income of the HUSBAND if the automatic deduction is not in place.

3.6.  Because the HUSBAND'S income is based upon commissions and volume incentive bonuses, the HUSBAND shall provide the WIFE with the original of every pay stub, W-2, commission document, bonus document and any other notification to the HUSBAND regarding income issued by his employer immediately upon his receipt thereof from the employer.   The WIFE shall provide comparable documentation to the HUSBAND regarding her employment income annually.   In the event that the HUSBAND fails to provide this documentation and the WIFE is required to obtain compliance with this provision from the Court, the HUSBAND shall be solely responsible for all reasonable legal fees and expenses of the WIFE which result therefrom.

3.7.  The parties agree that upon the WIFE'S remarriage or co-habitation as defined by the statute, whichever event first occurs, child support shall be paid by the HUSBAND to the WIFE in accordance with the then applicable Child Support Guidelines effective and commencing on the date that alimony ends.   Child support shall terminate when the youngest child reaches the age of nineteen or sooner graduates from high school after attaining the age of eighteen.

3.8.  In accordance with the Connecticut Child Support Guidelines, the parties shall each pay one-half the cost of all work related childcare expenses of the WIFE by the HUSBAND reimbursing her for his half within seven days of the date on which she incurs the expense.   This payment will not be taxable to the WIFE or deductible to the HUSBAND.

3.9.  The HUSBAND shall continue to pay all of the tuition for both of the minor children at private school on a timely basis.   The payments made by the HUSBAND under this paragraph shall not be taxable to the WIFE or deductible to the HUSBAND.

3.10.  The HUSBAND presently owes the WIFE the sum of $78,450.46 [Footnote 1:  The parties stipulated that this amount would not be the subject of modification.] for sums not paid by the HUSBAND to the WIFE which had been agreed to by the parties.   The HUSBAND will commence repaying this sum to the WIFE by January 2008 at the rate of $2,500.00 per month in order to give the HUSBAND a period of time in which to repay his other debts.   Payments to the WIFE under this paragraph shall not be taxable to the WIFE or deductible to the HUSBAND.

3.11.  The HUSBAND borrowed $2,000.00 from the minor children's bank accounts.   He will repay this sum within 30 days of the execution of this Agreement.

3.12.  The HUSBAND will pay one-half the moving expenses of the WIFE and children moving to Hartford, Connecticut.

ARTICLE V EDUCATIONAL SUPPORT ORDER

5.1.  Pursuant to Sec. 46b-56c of the Connecticut General Statutes, the HUSBAND shall make the following payments:

a.  During the calendar year 2006, the HUSBAND shall deposit sums totaling $28,800 into a college education fund for the minor children as to which the parties shall be the joint trustees, and the signatures of both parties shall be required to make any withdrawal.

b. Commencing in January of 2007, the HUSBAND shall contribute at the rate of $1,200 per month to this college fund, by making a payment of the accumulated sum due at least every six months.

These payments will be made by the HUSBAND to the WIFE payable to the college fund and the WIFE will deposit these sums into the college fund.   One-half of these funds shall be allocated to each child.

5.2.  Each of the parties will pay one-half of the costs of the college education for the parties' children not covered by the college fund provided for herein.   The college funds of the child shall be exhausted before the parties are obligated to make any payment hereunder.   Such costs shall include, but not be limited to, tuition, books, registration, laboratory and other special fees, and room and board if applicable as charged by the educational institution in which each child is enrolled, and transportation costs to and from such educational costs to and from such educational institution.

ARTICLE VI MEDICAL INSURANCE AND EXPENSES

6.1.  The HUSBAND shall continue to provide and pay the cost of the existing medical and hospitalization insurance, or reasonable equivalent thereof, for the minor children until each child reaches the age of twenty-three so long as the child can be covered as a dependent.

6.2.  The HUSBAND and WIFE shall each pay, for the benefit of the children, one-half of all reasonable unreimbursed medical, surgical, psychiatric, psychological, hospital, dental, orthodontia, optical, and nursing expenses, and the cost of prescription drugs (hereinafter collectively referred to as “medical expenses”), until each child reaches age 23 or sooner graduates from college provided, however, that either party shall give the other advance notice of any non-emergency extraordinary medical expenses.   The HUSBAND shall continue to provide an authorization for the payment of his half of the medical expenses on his credit card and the parties shall share reimbursements in the same ratio as their payment of the expense.   If either party receives a reimbursement check for a medical expense for which the other party has paid any part, he or she shall immediately pay the other his or her share of the reimbursement.

6.3.  Both parties acknowledge and agree that the provisions of this Article VI shall extend beyond the time that each child attains the age of majority, provided such child is a matriculated student at a post-secondary school and is less than 23 years of age.   In the event such child is not a matriculated student at a post-secondary school, then the parents' obligations pursuant to this Article VI shall cease when such child reaches the age of 19.   The provisions of this Article shall be non-modifiable to increase the obligations of the parties.

6.4.  The provisions of Connecticut General Statutes Section 46b-84(e) shall apply to this Article.

6.5.  The HUSBAND shall reimburse the WIFE for the cost of her medical insurance premiums each month until the first to occur of a period of three years from the date of this Agreement or the date on which the WIFE obtains insurance through employment.

6.6.  In the event that either party receives a medical insurance reimbursement for a medical expense which has been paid by the other party, he or she shall immediately endorse the check to the other party and deliver it to that party.

ARTICLE VII LIFE INSURANCE AND DISABILITY INSURANCE

7.1.  The HUSBAND shall continue to maintain in full force and effect at his sole cost Northwestern Mutual (policies 15592255 and 15775128) life insurance on his life with a death benefit of no less than $3,000.000, naming the WIFE as irrevocable beneficiary thereof, for so long as he shall be obligated to pay alimony or child support.   The HUSBAND shall deliver the premium payments for this insurance and the disability insurance provided for at Paragraph 7.2 by checks payable to the insurance carrier to the WIFE who shall thereupon make all premium payments in a timely manner.   In the event that the HUSBAND fails to make any premium payment, the WIFE shall have the right to make the payment and obtain an immediate reimbursement from the HUSBAND.

7.2.  The HUSBAND shall continue to maintain Northwest Mutual Disability policy D1420181 for so long as he is obligated to pay alimony and/or child support.

7.3.  The HUSBAND shall, upon the reasonable request of the WIFE, but not less frequently than once each year, provide the WIFE with written documentation that such insurance is in full force and effect, unencumbered, and that the WIFE remains the beneficiary thereof.

7.4.  In the event that the HUSBAND fails to maintain such insurance, then an amount equivalent to the death benefit provided for hereunder shall be a charge upon the estate of the HUSBAND in favor of the WIFE.

MOTION FOR MODIFICATION

On April 16, 2008, the defendant filed a MOTION FOR MODIFICATION OF VISITATION AND FINANCIAL ORDERS POSTJUDGMENT;  on March 26, 2009, he filed a revised motion with the same title and then an amendment to that motion dated June 9, 2010.   The motion dated March 26, 2009 and the amendment dated June 9, 2010, provides in pertinent part:

6. Since the date of the aforesaid orders, there have been substantial changes in circumstances including, but not limited to, the following:

A.  The defendant has been unable to earn sufficient income with which to discharge his obligations under the judgment and the defendant will likely never have the ability to earn sufficient income to meet his obligations under the provisions of the separation agreement and judgment;

B. Commencing with the next academic school year, the plaintiff is capable of earning significant income and contributing a greater amount to her support and the children's expenses;

C. Although the minor children have left Pear Tree Point School and are now attending Darien public schools, the defendant is still obligated to pay private school expenses pursuant to the judgment, and said expenses cannot be paid absent an alteration of the defendant's financial obligations;

D. The separation agreement and judgment have proven to be unconscionable and it is impossible for the defendant to meet all of his obligations as set forth in the current orders;

E.  As a result of the judgment (¶ 2.5) and the Wife's interference, the Husband has lost basically all contact with his family of origin, which is not in the best interests of the children in terms of lacking relationships with the paternal side of their family.

8. In Article III, the judgment provides that all unallocated alimony and child support payments are terminable only upon the Wife's death, remarriage, or cohabitation as defined by statute.   Therefore, the payments do not terminate on the Husband's death and his estate will be obligated to make any and all payments which are due and owing after the Husband's death.   Such payments are unfair and inequitable and should be terminated.

9. The separation agreement makes no provision whatsoever concerning the non-modifiability of the alimony term.   In light of the length of the parties' marriage and other statutory factors as contained in Section 46b-82 of the Connecticut General Statutes, the defendant respectfully requests that the alimony term be modified and that a non-modifiable order enter as to the duration of the alimony payments.

10. Paragraph 6.5 of the separation agreement provides that the defendant shall reimburse the plaintiff for the cost of her medical insurance premiums for three (3) years from the date of judgment or the Wife's acquisition of insurance through employment.   In light of the substantial changes in circumstances as set forth herein, the continuation of the obligation to pay the Wife's medical insurance is unfair and inequitable and should be terminated and/or modified by the Court;

11. Paragraph 9.1 of the separation agreement provides that the defendant is obligated to make certain payments on student loans and other obligations.   In light of the substantial changes in circumstances as set forth herein, the defendant insurable to pay the obligations in the priority set forth in the judgment nor is he able to service the obligations on the time table as set forth in the judgment due to those substantial changed circumstances.   The defendant requests that the Court modify the judgment of legal separation of marriage as follows:

1.  Modify the provisions of Article III in a downward direction the amount of alimony and child support due and owing by the defendant to the plaintiff;

2.  Order that any and all financial relief entered in favor of the defendant by way of a modification be made retroactive to the date of service of the 3/26/09 motion upon the plaintiff;

3.  Establish a non-modifiable term of alimony to be paid by the defendant to the plaintiff;

4.  Modify the provisions of Paragraph 3.9 of the separation agreement and judgment concerning the Husband's responsibility for the payment of private school tuition for the minor children;

4a.  Modify the obligations of the defendant as set forth in Article V of the judgment.

5. Terminate and/or modify the provisions of Paragraph 6.5 providing that the defendant shall reimburse the plaintiff for the cost of her medical insurance premiums for three (3) years from the date of judgment or the Wife's acquisition of insurance through employment;

6.  Modify the provisions of Article VII to reduce the amount of life insurance allocated to the plaintiff that the defendant is required to maintain;

7.  Modify the provisions of Article IX regarding the defendant's payments of student loans and other obligations;

8.  Modify the provisions of ¶ 2.5 of the judgment so that the children may have contact with the Husband's side of the family;

9.  Enter orders establishing a new parental access plan for the defendant, which such access includes overnights, holidays and vacations;

10.  Award to the defendant his attorneys fees and costs incurred in the preparation and prosecution of this motion;  and

11.  Award such other and further relief as to the Court may seem just and appropriate.

AMENDMENT

During the hearing, the Defendant amended his motion for modification of visitation and financial orders as follows:

7.F. The defendant's relationship with his children has been adversely affected by the actions of the plaintiff such that a transfer of custody from the plaintiff to the defendant is in the best interests of the minor children.

7.G. The defendant's relationship with the children is so strained that it is in the best interests of the minor children that in addition to a change in custody from the plaintiff to the defendant, family counseling be ordered by this court.

7.H. The defendant's relationship with his children and his inability to spend any meaningful time with them requires that the court re-examine the issue of legal and physical custody of the children.

7.I. Article V of the separation agreement and judgment made provisions for the payment of college expenses for the children by the defendant.   Due to the significant decrease in his earnings the defendant is no longer able to meet the obligation set forth in Article V.

7.J. In light of the children's ongoing therapy, which such therapy in large measure revolves around the children's relationships with the defendant, and the recommendations of other professionals who have either treated or evaluated the children, if (sic) is in the best interests of the children that the prior orders of custody, visitation and parental access be modified by this court.

Based upon the credible evidence the court makes the following findings of fact:

Glenn M. Buggy (“defendant”) is forty-six years old and is in good health.   He has an undergraduate degree and a law degree.   After a short period of time practicing law and acting as a financial planner, he has been an Executive Recruiter.

Sandra MacVicar (“plaintiff”) is forty-six years old and is in good health.   After obtaining her undergraduate degree, she attend law school for 1 1/2 years.   Then, she obtained a graduate degree in special education.   She has worked in the field of education for most of her adult life.

The defendant said that from August 11, 2006, the date of the legal separation, through the end of 2006, the visits were liberal.   However, he said it started getting more restrictive and more confrontational with the plaintiff as the year progressed in 2007.

The plaintiff filed a Motion for Contempt in November of 2007 relating to financial issues.   And in the Spring of 2008, the defendant filed a Motion for Modification seeking to modify both the financial terms of the Separation Agreement and the terms regarding access.

The defendant said he agreed to the terms of the Legal Separation Agreement in an effort to create harmony, but it didn't work out that way.   He said he was seeking to change the agreement to make it work.

The defendant's original motion to modify (Motion 124) was superseded by Motion 140, and served upon Ms. MacVicar.

The April 16, 2008 motion sought an increase in the access that the defendant had with the children.   At the time it was every other weekend and a night during the week.   He stated his goals changed relative to custody because of the plaintiff's actions and the evaluations.   He states that it's in the best interest of the children to live with him full-time.

In the spring of 2007, the defendant and plaintiff went to Disney World with the children and split the week, alternating staying in the hotel with the children.   In September of 2007, they did the same thing in Watch Hill, Rhode Island.

Jocelyn finished kindergarten and first and second grade at Pear Tree Point School in Darien.   She spent third grade, at Renbrook School in West Hartford;  fourth grade, back at Pear Tree Point School;  and the fifth and sixth grades at the Darien public schools.

Kaela went to kindergarten at Pear Tree Point School;  first grade, at Renbrook School in West Hartford;  second grade back at Pear Tree Point School;  and third and fourth grades at the Darien public schools.

The defendant said that the plaintiff would fly off in fits of rages.   During Thanksgiving Day in 2004, he says that she kicked him in the face leaving him with a black eye and a completely bruised side of his face.   In October of 2005, he said that the plaintiff threw a lid to a copper pot at him.   He said he put his hand up to cover his face and it cut his tendons in his wrist requiring him to go to the Greenwich Hospital emergency room to get it repaired.

Jocelyn was seeing Pamela Tinoco for therapy.   However, the defendant said he found it unacceptable that a mental health professional who was working with a twelve-year-old child was not communicating with both parents as to the nature of the therapy and the information that she found or concerns she had.

Since this proceeding started in late 2007 with the filing of the Motion for Contempt, the defendant says he has not spoken to his daughters about the court case.   However, he believes that the plaintiff has spoken with the children about the case.   For example, the defendant says that Jocelyn told him “you're trying to make yourself look good for the guardian.”   Also he says that at one point Jocelyn told him unequivocally that she wasn't going to see him anymore.

During October of 2008, the defendant carved pumpkins with the children's names on them.   They were to meet on one of the appointed nights during the week at the Boston Market on High Ridge Road in Stamford.   However, Jocelyn would not come out of the car.   Kaela came out of the car with the plaintiff to tell him that they were not going to be going with him.   He asked if he could give them something and he handed Kaela her pumpkin that had her named carved in it and said, “Happy Halloween.”   He also had a pumpkin for Jocelyn.   At that time, Kaela was happy with it, but according to the defendant the plaintiff insisted that it was inappropriate and should be at his house and that there was no way she was taking that back to her place.   At that time, Kaela's face turned more serious and she took the pumpkin and forcefully gave it back to her father and said, “No, I'm not taking it.”

Around Christmas of 2008 the defendant handed the girls some cookies he had baked for them.   Kaela said to him “what kind of a father would give their kid sugar?”   Jocelyn, who has severe food allergies, insisted that he wasn't careful and that the cookies he made for her could cross-contaminate with allergens to which she is allergic.

When Jocelyn had to have five of her teeth pulled, the defendant sent her flowers.   He also sent a smaller bouquet to Kaela.   He received word that he was favoring Jocelyn over Kaela because her bouquet was larger.

The defendant had purchased a condominium in Old Greenwich from the plaintiff so that she could buy the home in West Simsbury, Connecticut.   Then in 2008 when the girls were going to attend school in lower Fairfield County he offered the condominium to the plaintiff and the girls to live in which they did from Monday through Friday or Sunday night through Friday.   During that time, the defendant “lived all over.”

During 2009, the defendant said things kept getting worse.   He said that the plaintiff would be ranting at him and he would hang up the phone.   The girls would say, why aren't you calling us.   It seems to him to be an untenable situation.

The plaintiff's attorney at the time had suggested that there be a family gathering on Christmas 2009.   However, according to the defendant, there was never an agreement.

The defendant stated that while he and his girlfriend, Shannon, were visiting his mother on Christmas Day, the door bell rang, and the plaintiff and children came unannounced.   The defendant said he was glad to see them, but it was very uncomfortable and upsetting for the girls.   According to the defendant, Jocelyn and Kaela, by all accounts, are very kind and well mannered children, except how they act toward him.   However, in this instance, they were ill-mannered to his girlfriend, Shannon, when he introduced the girls to her.   Jocelyn looked at her father and said, “Dad, we haven't spent any time with you, I don't think it's appropriate to introduce us to your girlfriend.”   The defendant told Jocelyn to please not be disrespectful to an adult.   Jocelyn then stood up and said, “This visit's over.”   Kaela just followed Jocelyn.

The plaintiff would often suggest apologies which the defendant should communicate to the girls.   She wanted him to apologize for hitting, yelling and swearing at the girls.

The defendant admits to using profanity, raising his voice, and at times losing his temper with his children.   He admitted that blowing up and swearing at his children frightens them.   But, he now believes that the severity of the claims amounted to fictions that were created and promulgated by plaintiff in the girl's minds.

He said he had a hard time handling the girls but believes the difficulty comes from the fact that they saw and modeled a behavior of their mother toward him that permitted them to act in a way towards him that they did not act towards any other adult.

The court appointed a guardian ad litem to protect the interests of the children.   Subsequently, Jocelyn Hurwitz was appointed as a successor guardian ad litem.

As previously mentioned, the parties entered into a Post Judgment Stipulation dated February 18, 2009, which the court ordered on February 23, 2009 (J. Shay), which provided that Dr. Kenneth Robson, a psychiatrist, would perform an psychological evaluation of both the plaintiff and defendant “to be used in conjunction with ongoing litigation regarding custody and parenting issues for the minor children ․ The children will be brought into this evaluation at the direction of Dr. Kenneth Robson.   Dr. Robson will also provide a recommendation regarding custody and parenting issues.   Initial contact with Dr. Robson will be made by the Guardian Ad Litem, Attorney Jocelyn Hurwitz.” ⁵

The evaluation was completed on November 11, 2009,⁶ but the trial did not commence until June 7, 2010 after the matter had been referred to the Regional Family Trial Docket.   The matter was tried for eleven days and was completed on June 25, 2010.

Dr. Kenneth Robson, who is a child and adolescent psychiatrist, was appointed as the evaluator in this matter.   He met with both parents at length to get their perspective on the divorce and on custodial issues of the minor children.   He also met with the minor children.   He met once with the minor children with their father and twice with the minor children with their mother.   He also spoke with teachers, therapists, childcare people, and pediatricians.   He met with the father with the children only once because the children were estranged from their father.   Dr. Robson said it was a very stressful experience for the girls and for their father.   The girls came to the meeting with a babysitter.   The babysitter stated that she could not leave and the girls implored her to stay.   Dr. Robson said that the children were apprehensive and their father was appropriate.   The father showed the girls some photographs of good times they had, but the girls didn't want to see them.   They asked Dr. Robson how he could do something so cruel as to conduct the meeting with their father who they said had beat them and abused them.   Dr. Robson responded that these complaints were many months old and no one had called the Department of Children and Families regarding the alleged abuse.   Jocelyn, the older of the two children asked him why he hadn't called DCF. Dr. Robson said because he didn't feel the children were at risk.   Thereupon the younger child wanted to leave his office.   After about an hour, Dr. Robson terminated the meeting.

The girls complained that their father pulled hair, swore at them and pushed one of the girls down stairs.   The father stated that while he was driving the girls, they were fighting in the back seat and Jocelyn, the older girl, pulled Kaela, the younger girl's hair.   He also admitted that he had “blown up” and had sworn at the girls.   Dr. Robson was not able to verify the allegation of his pushing a child down the stairs.

The plaintiff took the position that she was a victim of domestic abuse from the defendant in an ongoing fashion through the years.   Dr. Robson did not find that to be corroborated in his study.   However he did find violence on Ms. MacVicar's part towards Mr. Buggy.

Ms. MacVicar complained that Mr. Buggy was dangerous;  violent;  inept as a parent;  abusive;  financially irresponsible;  manipulative;  and cruel.   However, Dr. Robson didn't find any of the complaints to be credible.

Dr. Robson requested that psychological testing be done with both parties by Dr. Nellie Filippopoulos.   Mr. Buggy attended his testing and completed his testing.   But, Ms. MacVicar did not partake in any of her testing.

Dr. Robson found that Mr. Buggy was frightened of Ms. MacVicar who generally dominated Mr. Buggy.   And, he found that the girls are more afraid of their mother than their father.

Dr. Robson also found that Ms. MacVicar's rages, her swearing at Mr. Buggy, her agitation and unrest in his presence at times frightened the children.

Moreover, Dr. Robson found that Ms. MacVicar would want Mr. Buggy to have little or no access to the children.

Dr. Robson was impressed that many people with whom he spoke appeared to feel frightened of Ms. MacVicar.   Former therapists left the scene when tension with Ms. MacVicar got too great.

Dr. Robson opined that the girls are in an impossible situation having to choose between their father and their mother in an absolute way.

The girls had ceased to have contact with all members of their father's family, and most members of their mother's family, as well.   In fact there is a provision in the legal separation agreement providing that there could be no contact between the children and their father's family and the mother's family.

The parties initially gave Dr. Robson releases.   However, Ms. MacVicar later rescinded permission for him to speak with three individuals.   The plaintiff never gave a reason for her rescission.

After Mr. Buggy's motion for modification had been filed in 2008, Mr. Buggy started to experience real difficulties with his girls.

According to Dr. Robson, Ms. MacVicar wrote to him saying he had made his mind up before he had actually had made up his mind.   And, Attorney Stevens who had previously represented Ms. MacVicar, chastised Dr. Robson for canceling appointments with the children and for being devious with Ms. MacVicar and with the children.

Ms. MacVicar said her husband was a psychological rapist;  brutal, cruel, harsh, abusive, dangerous, manipulative, dishonest, and un-empathic with the children.   According to Dr. Robson, she had a fixed perception of Mr. Buggy as the devil incarnate.

Dr. Robson opined that a letter that Ms. MacVicar sent him was a threat to him and Attorney Hurwitz, the guardian-ad-litem.   She said when the girls got hurt by Mr. Buggy, it would be on their heads.

Dr. Robson found that the children are disrespectful to their father and Ms. MacVicar practices this disrespectful behavior herself.

Up until 2005, the girls were brought to their pediatric appointments by their father.   Dr. Robson said that apparently, he was easier to deal with than Ms. MacVicar.

In his report, Dr. Robson opined that “Sandra MacVicar and her daughters are engaged in a shared delusional disorder in which the children swallow, wholesale, their mother's perceptions of Glenn Buggy.   This wholesale acceptance of distorted fact is necessary for the children in order to sustain their relationship with their mother.” ⁷

Dr. Robson testified confirming his finding “that Mr. Buggy is devoted to his daughters, poses no risk of physical or psychological harm to them, and, in fact, may offer them the one road that they could take to healthy subsequent development that might detoxify what they've lived with for these past several years with their mother.” ⁸

Concerning the plaintiff, Dr. Robson further found that “․ Sandra's paranoid perceptions are central ․ From a formal point of view she meets many of the criteria for both Borderline Personality Disorder and Paranoid Personality Disorder ․ The world must ‘walk on eggs' with Sandra MacVicar.   She is in these ways an unhealthy or ‘toxic’ object for her daughters to model themselves after but they are caught in her psychological net and are already exhibiting distrust ․ Sandra MacVicar's failure to execute the psychological testing is in my opinion based on her anxiety that they will reveal her to be a disturbed person.   Indeed, she is a deeply troubled woman.” ⁹

Concerning the children, Dr. Robson opined that they face “ ․ an impossible dilemma:  On the one hand, they have a powerful but pathologic tie to their mother that will be very difficult for them to relinquish.   At the same time, their present view of their father is distorted to the point that it conforms minimally to reality.   Between these unhealthy extremes, the children exist in a manner that promises to damage their relationships, their self-perceptions, and their abilities to love and live productively.” ¹⁰

“In adopting a plan to address these problems, this evaluator knows full well that there is no magic answer that can transform the children's present world.   There must be several components to this plan and there must be a reasonable chance that they will work.   An experienced therapist must be a part of this plan and must be geographically proximate to where the children are living.   Furthermore, there must be supportive adults present for the situation to provide them structure and care.” ¹¹

Dr. Robson opined how complex the matter is:  “This matter is extraordinarily complex.   Some of the recommendations to follow are potentially hazardous to the psychological well-being of the minor children.   Nevertheless, it is this evaluator's opinion that acting promptly is urgent in terms of the long term outcome of these children's lives.” ¹²

EVALUATOR'S PROPOSED ORDERS

Dr. Robson, the court appointed evaluator's recommended proposed orders are the following:

1. Sole custody of the minor children to Glenn Buggy.

2. The children will move to their father's home and will reside there while continuing to attend their present school.

3. Sandra MacVicar's unqualified support for this plan is essential to its success.

Therefore, there will be little margin for error on her part in being certain that the children, when they are in her care, follow the precise precepts that are laid down by the Court.   Failure to do so will lead in the first instance to the imposition of supervised visitation and in the second instance to interdiction of access to her children.

4. Maternal access will involve dinner one week day night after school to 8:00 p.m. as well as Saturdays from 9:00 a.m. to 6:00 p.m.

5. The parties, the minor children, will commence therapy with a single clinician and work flexibly with that person to facilitate the transition.   All other therapies will be suspended and the treating clinician for the family will be responsible for referral of any or all members of the family for further counseling.

6. Close attention to the implementation of these orders will be monitored by the Guardian ad Litem.

7. Neither parent will report allegations of physical or sexual abuse to the police, DCF, or the pediatrician, but will direct such allegations to the Guardian ad Litem who will review them (with Dr. Robson if necessary) for their merit before they are passed on to any or all of those agencies.   A parent who violates that pathway through the Guardian ad Litem invites an immediate review of the parenting plan and alteration in access to the minor children.

8. The children will be encouraged to have contact with Glenn Buggy's extended family, maternal grandmother, and other family members with whom they have not had contact over the past several years.

9. This report should be read by all current and future treaters.

GUARDIAN AD LITEM'S PROPOSED ORDERS

The guardian-ad-litem, Jocelyn Hurwitz, was in agreement with Dr. Robson's recommendations, except she suggested that the children keep their present therapists, if possible.

And, as the counsel for the wife pointed out, since the husband will be living in Greenwich, the children would not likely be permitted to live with their father and continue attending the Darien public schools.

The plaintiff had some witnesses vouching for her as a parent and as an individual.   One witness said she has done well in the education field.   All of these witnesses were impressive.   Unfortunately, the plaintiff's actions regarding the defendant have poisoned her children's relationship with their father.   Moreover, her behavior, unless changed, will adversely affect the development of her children.

Financial Issues:

At the present time, the defendant works for CT Partners.   The compensation structure has changed.   At the time of the legal separation, his draw or “base salary” was $150,000.   The bonus was calculated on cash collected the previous month.   However, the method of calculating the bonus changed in 2008.   At that time the amount of bonus which was to be paid was reduced from 100% to 50% for some time.   There was a need to retain some of the money in the firm.   The next change occurred in 2009 when the bonus payments were delayed for six months.   Presently, the bonuses are being paid on a 100% basis but with a six-month delay.

Although he is considered a partner in his firm, he is not an equity partner at this time.

His tax returns show his gross income to be diminishing the last few years.   His tax returns for the year 2006 show gross income of $630,161.(Ex. D 22.)   The succeeding years returns show his gross income at $446,420 (2007 Ex. D 29);  $388,657 (2008 Ex. D 30);  and $195,297 (2009, Ex. D 31).   At the time of the trial, his year to date gross income was $119,874.74.   As a result of the legal separation agreement, the husband took “the lion's share” of the family debt.   The husband's assets were $10,200 at the time of the legal separation, while the wife's assets were $457,196.   The husband owed educational loans to “Sallie Mae” the approximate amount of $60,000, while the wife owed about $12,000.   He has been making payment on the combined debt, although he is not responsible for the amount his wife owes.

There was evidence that the wife had planned to go back to full-time employment in 2009.

The defendant had a condominium foreclosed.   The bank has sought a deficiency judgment and he has filed an objection.   He may earn what is called a volume incentive bonus.   It is in effect a referral fee for business brought in but he did not work on.   He referred this calculation as a “cookie jar” that when filled he earns a bonus.   He said he has not received any of this type of bonus for over eighteen months.

The plaintiff said she has spent more than $200,000 on attorneys during the course of these motions.   At the same time she has had six different attorneys, although her fifth attorney retired from her law practice due to health issues.

She sold her house in Simsbury for $725,000 and received a net balance of $278,042.(Ex. D 132.)   She says that she had none of that money left.   She says she works part-time and that this litigation interferes with that.   She said she intends to obtain a full-time job.

The defendant's motion claims that there has been a substantial change in circumstances.

At that time the parties were legally separated, according to the parties' financial affidavits, the husband earned $10,555 gross and $7,207 net per week as an executive recruiter.   The wife had no income at that time.

The court ordered the husband to pay the plaintiff unallocated child support and alimony based upon a formula using a measure of the husband's income.   The defendant claims a substantial change in circumstances and has moved to modify, inter alia, the unallocated child support and alimony.

The husband's income has decreased to $5,021 gross and $3,965 net per week, while the wife's income has increased to $2,993 gross and $2,058 net per week.   Although those amounts include unallocated child support and alimony in the amount of $2,570 per week.   At the time of the legal separation, the wife reported net assets in the amount of $445,198 and recently with liabilities in the amount of $118,126.  (Ex. D 205.)   The husband's liabilities have increase from $132,100 to $776,042 ($30,000 was deducted from the amount due the guardian ad litem since the husband owns one-half of the amount due).  (Ex. D 204.)

Here, the defendant's income decreased by almost 50% in four years.   The court makes the additional findings that the plaintiff is a very intelligent individual.   She has an impressive educational and work background.   She interacts well with various friends and associates.   However, her interactions with the defendant and her children have prevented her children from having an appropriate parental relationship with their father.   This adversely affects not only the defendant but also the children.   The court adopts for the most part the finding of the court evaluator and the Guardian ad Litem.

The fact that the defendant is living with his significant other and her children in a smaller residence does not present a perfect situation.   However, under the circumstances with which this court is presented, it is the best alternative.   Therefore, a change of custody is in the best interests of the children.   The court finds that there has been a substantial change of circumstances since the date of the last order.   The judgment will be modified as provided for in the court orders.   The judgment is not otherwise modified.   The modification will not be retroactive.

The court hereby finds that it is in the best interest of the children to change custody and access.

ORDERS

After considering all of the statutory criteria together with applicable case law and the evidence presented, the Court hereby enters the following orders:

LEGAL SEPARATION CONVERSION TO DISSOLUTION OF MARRIAGE

An order converting the decree of legal separation into a decree of dissolution shall hereby entered.

1. Sole custody of the minor children to Glenn Buggy.

2. The children will move to their father's home and will reside there while continuing to attend their present schools through the end of this academic year.   If father needs to rent a residence in Darien for the next eight months to effectuate the childrens' staying in their present schools, he must do so.   The children shall continue their same extracurricular activities during this school year.

3. Sandra MacVicar's unqualified support for this plan is essential to its success.

Therefore, there will be little margin for error on her part in being certain that the children, when they are in her care, follow the precise precepts that are laid down by the Court.   Failure to do so will lead in the first instance to the imposition of supervised visitation and in the second instance to interdiction of access to her children.

4. Maternal access will involve dinner one week day night after school to 8:00 p.m. as well as Saturdays from 9:00 a.m. to 6:00 p.m.

5. The parties, the minor children, will commence therapy with a single clinician and work flexibly with that person to facilitate the transition.   All other therapies will be suspended and the treating clinician for the family will be responsible for referral of any or all members of the family for further counseling.

6. Close attention to the implementation of these orders will be monitored by the Guardian ad Litem.

7. Neither parent will report allegations of physical or sexual abuse to the police, DCF, or the pediatrician, but will direct such allegations to the Guardian ad Litem who will review them (with Dr. Robson if necessary) for their merit before they are passed on to any or all of those agencies.   A parent who violates that pathway through the Guardian ad Litem invites an immediate review of the parenting plan and alteration in access to the minor children.

8. The children will be encouraged to have contact with Glenn Buggy's extended family, maternal grandmother, and other family members with whom they have not had contact over the past several years.

9. This report should be read by all current and future treaters.

10. CHILDREN SUPPORT

The plaintiff shall pay the defendant in accordance to the child support guidelines and the child support worksheet attached hereto.*

11. ALIMONY

The defendant shall pay the plaintiff alimony as provided for in the legal separation agreement, except the amount shall be reduced to amounts that are 50% of the original amounts.   In other words, instead of the percentage of income being 50%, it shall be reduced to 25%.   This shall not affect the term of the alimony at this time.   The clause is not retroactive.   The amounts previously owed and not paid shall not be reduced.

12. PRIVATE SCHOOL

There is no requirement for the defendant to pay for private school tuition.

13. COLLEGE FUND

The plaintiff's requirement for payment into the children's college fund shall be reduced by 50% prospectively.

14. INSURANCE

The plaintiff's requirement for life insurance shall be reduced by 50% prospectively.

15. EDUCATIONAL SUPPORT ORDER

The Court shall retain jurisdiction to enter an education and support award for the children as of the time that they enter post-secondary education.

16. EDUCATION LOANS

The defendant shall continue to pay the parties' student loans but he may obtain from the plaintiff any past or future amounts he has or will pay on behalf of the plaintiff's student loan.

17. COUNSEL FEES

Each of the parties shall be responsible for his or their respective professional fees incurred in connection with this litigation.

The court finds the fees charged by the GAL to be reasonable and necessary to protect the best interests of the minor children.   This sum is considered additional support and is not intended by this court to be discharged in bankruptcy.   The fees due the GAL shall be paid in full within 30 days of the date of judgment.

18. Communications with the Children

Mother and father shall exert every reasonable effort to foster and promote a feeling of affection between the children and the other parent.   Neither parent shall do anything which may estrange the children from the other parent nor injure the opinion of the children of the other parent.   Neither parent shall act in any way to interfere with the natural development of the children's love and respect for the other parent.

19. Communication Between Parents

All communication between the parties shall be in writing and transmitted through the www.OurFamilyWizard.com web site.   Neither parent shall block e-mail from the other parent.   The parents shall check the web site at least once each day on or before noon.   They shall read and promptly respond (defined as within 48 hours of receipt) to all communication from the other parent in an appropriate manner.   Neither parent shall use this communication to call the other names or disrespect the other parent.   The court finds that this communication is in the best interests of the minor children.

20. Extracurricular Activity

Father shall be solely responsible for determining the children's after school/extracurricular activities after consultation with the minor children and the mother using www.OurFamilyWizard.com.

21. Notification of Children's School & Medical Providers

Father shall be responsible for notifying the children's schools, doctors, dentists, and any after school activities' coordinators of their respective addresses and telephone numbers and shall request duplicate notices be sent to them.   He shall provide the schools, doctors, dentists and after school activities' coordinators with self-addressed stamped envelopes to assure they receive the information in a timely manner.

22. The parents, the GAL, and the selected therapist together, shall meet each child, as soon as practicable, to advise them of the changes to the parenting plan resulting from this court's decision.

Neither parent shall discuss this court's decision with the children prior to that meeting.   Neither parent shall provide the children any access to the Court's Memorandum of Decision or the reports of Dr. Robson.   After the meeting above, both parents shall present the change in the parenting plan in a positive manner to the children to facilitate their adjustment to the changes in their day to day living.

23. Emergency Notification

The parents shall immediately notify the other of all medical emergencies requiring hospitalization or emergency room treatment.   Notice shall be made by telephone, in person, or any method available to assure the information is delivered as promptly as possible.

24. Return of Children's Personal Property

The parents shall return all clothing, toys, equipment, and all other possessions of the minor children at the beginning and ending of every visitation.   The children shall not be deprived of their possessions while she is with either parent regardless of which parent purchased the item.

25. The Guardian Ad Litem shall monitor the parties' compliance with the parenting plan and requirements that they engage in individual and co-parenting therapy for an initial period of nine months.   If significant problems surface, the Guardian shall facilitate the filing of appropriate motions to bring the case before the court for additional action.

The parties shall equally share the costs associated with the selected therapist.   The GAL shall confer with both parents and contact the program to make the initial appointment for the parties.   Thereafter, the parties shall be responsible for scheduling weekly appointments in compliance with the program requirements.   All appointments shall be in person and not conducted by telephone.   The court notes that the co-parenting therapy will not be covered by health insurance and orders the fees to be equally divided by the parties.

[Intentionally left blank].

26. JURISDICTION

The Middletown RTFD shall retain jurisdiction over custody, access, and orders for therapy for a period of one year from the date of judgment.   All motions regarding such shall be filed at the Middletown RFTD.

By the Court

Judge Richard E. Burke

FOOTNOTES

FN1. Pursuant to Practice Book § 25-26(e), the court permitted the defendant to amend both his motion to modify and his proposed orders.   Section 25-26(e) provides:  “Each motion for modification shall state the specific factual and legal basis for the claimed modification and shall include the outstanding order and date thereof to which the motion for modification is addressed ․”.  FN1. Pursuant to Practice Book § 25-26(e), the court permitted the defendant to amend both his motion to modify and his proposed orders.   Section 25-26(e) provides:  “Each motion for modification shall state the specific factual and legal basis for the claimed modification and shall include the outstanding order and date thereof to which the motion for modification is addressed ․”

FN2. Thereafter, the parties met with the presiding judge and agreed upon a trial schedule to which they adhered..  FN2. Thereafter, the parties met with the presiding judge and agreed upon a trial schedule to which they adhered.

FN3. On July 6, 2010, both parties stipulated that Motion 170 entitled Motion to Seal Documents be granted by agreement.   That motion was granted by the court on that date (J. Schofield)..  FN3. On July 6, 2010, both parties stipulated that Motion 170 entitled Motion to Seal Documents be granted by agreement.   That motion was granted by the court on that date (J. Schofield).

FN4. C.G.S. § 46b-81(a), the court does not have continuing jurisdiction over the division of property after a decree has been entered of divorce, and thus, by implication a decree of legal separation.   Bunche v. Bunche, 180 Conn. 285, 289, 429 A.2d 874 (1980);  Blaisdell v. Blaisdell, Superior Court, judicial district of New London at Norwich, Docket No. FA 00 0121221 (October 3, 2001, Swienton, J.) (30 Conn. L. Rptr. 543-44)..  FN4. C.G.S. § 46b-81(a), the court does not have continuing jurisdiction over the division of property after a decree has been entered of divorce, and thus, by implication a decree of legal separation.   Bunche v. Bunche, 180 Conn. 285, 289, 429 A.2d 874 (1980);  Blaisdell v. Blaisdell, Superior Court, judicial district of New London at Norwich, Docket No. FA 00 0121221 (October 3, 2001, Swienton, J.) (30 Conn. L. Rptr. 543-44).

FN5. Defendant's Exhibit A..  FN5. Defendant's Exhibit A.

FN6. Defendant's Exhibit Z1..  FN6. Defendant's Exhibit Z1.

FN7. Defendant's Exhibit Z1 p. 46..  FN7. Defendant's Exhibit Z1 p. 46.

FN8. Transcript..  FN8. Transcript.

FN9. Defendant's Exhibit Z1 pp. 46-47..  FN9. Defendant's Exhibit Z1 pp. 46-47.

FN10. Defendant's Exhibit Z1 p. 47..  FN10. Defendant's Exhibit Z1 p. 47.

FN11. Defendant's Exhibit Z1, p. 48..  FN11. Defendant's Exhibit Z1, p. 48.

FN12. Defendant's Exhibit Z1, p.49;  Also, “As in other areas where expert testimony is offered, a trial court is free to rely on whatever parts of an expert's opinion the court finds probative and helpful.  Johnson v. Healy, 183 Conn. 514, 515-16, 440 A.2d 765 (1981);  F.P. Carabillo Construction Co. v. Covenant Ins. Co., 172 Conn. 564, 566, 375 A.2d 1029 (1977);  Morgan v. Hill, 139 Conn. 159, 161, 90 A.2d 641 (1952).   In family cases in particular, it would be anomalous to require a trial court to assign particular weight to a report which is based on statements that the trial court may evaluate differently and on circumstances that may have changed.   See Seymour v. Seymour, 180 Conn. 705, 710, 433 A.2d 1005 (1980).   The best interests of the child, the standard by which custody decisions are measured, does not permit such a predetermined weighing of evidence.  Stewart v. Stewart, 177 Conn. 401, 408, 418 A.2d 62 (1979);  Spicer v. Spicer, 173 Conn. 161, 162, 377 A.2d 259 (1977);  Simons v. Simons, 172 Conn. 341, 348, 374 A.2d 1040 (1977).”  Yontef v. Yontef, 185 Conn. 275, 281 (1981).*Editor's Note:  The referenced worksheet has not been included with the reported opinion..  FN12. Defendant's Exhibit Z1, p.49;  Also, “As in other areas where expert testimony is offered, a trial court is free to rely on whatever parts of an expert's opinion the court finds probative and helpful.  Johnson v. Healy, 183 Conn. 514, 515-16, 440 A.2d 765 (1981);  F.P. Carabillo Construction Co. v. Covenant Ins. Co., 172 Conn. 564, 566, 375 A.2d 1029 (1977);  Morgan v. Hill, 139 Conn. 159, 161, 90 A.2d 641 (1952).   In family cases in particular, it would be anomalous to require a trial court to assign particular weight to a report which is based on statements that the trial court may evaluate differently and on circumstances that may have changed.   See Seymour v. Seymour, 180 Conn. 705, 710, 433 A.2d 1005 (1980).   The best interests of the child, the standard by which custody decisions are measured, does not permit such a predetermined weighing of evidence.  Stewart v. Stewart, 177 Conn. 401, 408, 418 A.2d 62 (1979);  Spicer v. Spicer, 173 Conn. 161, 162, 377 A.2d 259 (1977);  Simons v. Simons, 172 Conn. 341, 348, 374 A.2d 1040 (1977).”  Yontef v. Yontef, 185 Conn. 275, 281 (1981).*Editor's Note:  The referenced worksheet has not been included with the reported opinion.

Burke, Richard E., J.