Jeanine M. Candels v. Marc A. Candels (2010)

MEMORANDUM OF DECISION

On June 10, 2010, the defendant filed a Motion to Modify Post-Judgment with respect to his visitation rights with the minor children issue of the parties.   On July 9, 2010, the plaintiff filed a similar motion.   Hearings were held on the referenced motions in addition to other pending motions on April 12, 2010, April 15, 2010 and July 16, 2010.   Both parties were represented by counsel.

The court has reviewed the extensive file, the testimony of the parties and their witnesses, the exhibits and proposed orders.

A review of the following information contained in the file is necessary for the court to have a clear understanding as to the claims of the parties in this highly conflicted case.

The parties were married on June 17, 1989, and have lived in Connecticut since their marriage.   By summons and complaint filed January 5, 1998, the plaintiff sought to dissolve the marriage.   On January 8, 1999, the court (Brennan, JTR) dissolved the marriage and incorporated into the judgment the parties' agreement dated January 7, 1998.   The following children are issue of the marriage, to wit:  Nina, born July 2, 1992;  Michael, born July 24, 1995, and Katherine, born April 10, 1998.   Although the parties ultimately reached an agreement, the pendente lite period was very contentious.

In addition to the following motions, agreements and orders, the parties filed other motions concerning discovery, depositions and the like.   Any matter not directly affecting the matters presently before the court has been omitted.   On September 25, 2001, the plaintiff filed a Motion to Reopen Judgment of Dissolution and Motion for Contempt Post-Judgment (# 129).   On October 22, 2001, the defendant filed six Motions for Contempt, Post-Judgment (# 130-# 135).   On October 24, 2001, the parties' agreement of even date (# 136) which disposed the pending motions was approved and made orders of the court (Dyer, J.).   It should be noted that the following portion of the agreement of October 24, 2001 has relevance to the matters currently pending before the court.   Paragraph 4 reads, in part, as follows:  “orders provided in the Judgment of January 8, 1999 shall remain in full force and effect including ․ the orders prohibiting either party from enrolling the children in any activities that infringe on the other parent's parenting time without advance agreement” ․

On October 8, 2009, the plaintiff filed a Motion to Modify Visitation Post-Judgment (# 138).   On October 22, 2009, the defendant filed a Motion for Attorney for Minor Children Post-Judgment (# 139), a 7th Motion for Contempt re Parenting Post-Judgment (# 140), an 8th Motion for Contempt Post-Judgment (# 141), a 9th Motion for Contempt re W-2s Post-Judgment (# 142), and a 10th Motion for Contempt re Taekwondo Post-Judgment (# 143).   On October 26, 2009, the defendant filed a Motion for Custody Post-Judgment (# 144).   On November 2, 2009 the defendant filed an 11th Motion for Contempt re Unilateral Termination of Parenting Time, Post-Judgment (# 146).   On November 9, 2009, the plaintiff filed a Motion for Contempt re Disparagement (# 147).   On November 5, 2009, the plaintiff filed a Motion for Psychological Evaluation (# 148).   On November 18, 2009, the court (Fischer, J.) approved the agreement of the parties appointing Attorney Susan Geenty as Attorney for The Minor Children (see # 139) and visitation over Thanksgiving for the defendant (# 150.10).   On December 10, 2009, the plaintiff filed a 12th Motion for Contempt re Denial of Parenting Time Post-Judgment (# 152).   On December 28, 2009, the defendant filed a 13th Motion for Contempt re Denial of Parenting Time Post-judgment (# 153).   On December 28, 2009, the plaintiff filed and objection to defendant's motion for contempt (# 154).   On January 5, 2010, the court (Dolan, J.) approved and made orders of the court a comprehensive parenting plan agreement.

On January 27, 2010, the defendant filed a 14th Motion for Contempt and Motion to Enjoin Post-Judgment (# 157.00 & # 157.10).   Also filed by the defendant on the same date was a Motion for Protective Order (# 158).   The latter motion dealt with discovery requests filed by the plaintiff.   The motion was granted without prejudice by the court (Taylor, J.) on February 17th 2010 (# 165).   On February 10, 2010, the Attorney for the Minor Children filed a motion for payment of her fees (# 164).   On March 9, 2010, she filed proposed orders (# 167).   Also filed on March 9, 2010, was an affidavit of fees by the defendant's counsel.

On March 9, 2010, defendant's counsel filed a Memorandum of Law, Post-judgment (# 170), a Motion in Limine, Post-Judgment (# 171) a Motion to Strike, Post-Judgment (# 172).   Also filed on March 9, 2010, was the defendant's proposed orders (# 178) and Trial Management Compliance (# 179 and # 180).   On March 9, 2010, the plaintiff filed a witness list (# 181), a list of pending motions (# 181.10), a revised exhibit list (# 182) and an affidavit of fees.

On March 9, 2010, the court (Taylor, J.), by agreement of the parties, appointed Sue Cousineau as the Guardian ad Litem of the then minor child, Nina and entered an order relative to the possible testimony of the minor child, Nina. Two days following the hearing, the plaintiff filed a Motion for Contempt re K1 and Summer Vacation, Post-Judgment (# 186).   On March 16, 2010, the defendant filed his 15th Motion for Contempt, Post-judgment (# 187).   The plaintiff filed an objection to the Motion and asked for sanctions (# 191 filed March 26, 2010).

The court has distilled all for the forgoing into the following issues for the court to decide.

Should the parties continue to have joint legal custody?

If the court finds that the parties should no longer have joint legal custody which party should have sole custody?

Once the first and second issues are decided which party should have primary residence?

What should the visitation schedule be for the non-custodial parent?

What should be the amount of child support, and if ordered, would there be any retroactivity?

If the court enters an order retroactively how should any resulting arrearage be paid by the obligor?

If the court finds either party in non-compliance of court orders was it willful resulting in a finding of contempt?

If there is a finding of contempt should the court enter sanctions?

Should either party be awarded counsel fees?

The overriding concern of the court is what orders should the court enter which would be in the children's best interests.   The court heard the testimony of the defendant, his present wife, Linda, and the plaintiff (who also has remarried).

Nina, the parties' oldest daughter, attained the age of 18 on July 2, 2010, and graduated high school the previous spring.   On the final day of the hearing her attorney informed the court that she had been accepted at Saint Joseph's College and received a four-year $13,000 per year scholarship.   Nina was a stellar student in high school.   Neither party disputed the comments made by Attorney Geenty.

The plaintiff has primary residence of the minor children.   Since the dissolution of the marriage she has permitted and encouraged the children to be enrolled in a number of after school activities.   She testified that such activities trump the visitation of the defendant, and should they occur during his scheduled visitation, he should bring the children to their scheduled activities.   On the other hand, the defendant claims that he cannot get quality parenting time because the plaintiff overbooks the children and does not get his permission for them to participate in some of the activities.   He indicated his concern for their safety further, especially after Michael was seriously injured in 2009 participating in a TAEKWONDO tournament.   He finished his testimony with the statement that “it's her way or the highway.”

The defendant's visitation with the children has become problematic.   On the one hand they want to see their father, but they also want to enjoy their activities and their friends.   The plaintiff has permitted and encouraged the children over a long period of time (since 2001) to engage in such activities and be with their friends and it will be difficult for the defendant to enjoy a close relationship with his children.   The court finds that much of the plaintiff's testimony was not credible and that she has willfully adversely affected the defendant's relationship with his children which is not in their best interests.

The court enters the following orders:

1.  All of the terms of the Judgment of January 8, 1999, as modified by the stipulation dated October 24, 2001, shall remain in full force and effect unless specifically modified by the Agreement of January 5, 2010, the terms of which shall continue in full force and effect.   Since Nina has attained the age of eighteen and has graduated from high school the Judgment, Stipulation and Agreement no longer apply to her.

2. Any UGMA accounts still in existence for the benefit of the children shall become jointly held by the parties with monthly statements made available to both parties.

3. The defendant shall pay child support and unreimbursed medical expenses for the minor children in accordance with the Connecticut Child Support Guidelines for Michael and Katherine retroactive to July 2, 2010.   Any over/under payments shall be reconciled forthwith.

4. The plaintiff shall pay the defendant's counsel fees in the amount of $5,000 within 60 days of this decision.

5. Any fees due and owing to the Attorney for the minor children or the Guardian ad Litem shall be paid within 30 days of this decision.

6. The parties shall return to Beacon Behavioral to resolve their differences before returning to court.

SO ORDERED.

BY THE COURT

CARUSO, J.T.R.

Caruso, John R., J.T.R.