Dayleen Bushnell v. Edward Bushnell (2011)

MEMORANDUM OF DECISION

This is a post-judgment matter.   The parties were divorced in 2007.   Pursuant to their judgment of dissolution of marriage, the parties were ordered to share joint legal custody of their minor children.   The children's primary residence was ordered to be with their mother and a schedule of access with their father was ordered.   Child support orders were also entered.   All of those issues are again before the court in this contested matter.   The following motions are before the court:  plaintiff's motion to modify custody, post-judgment (# 149.50), dated November 25, 2009, defendant's motion to modify custody, access and child support (# 155.00 and # 155.25), dated January 19, 2010 and plaintiff's motion to modify child support, post-judgment (# 171.00), dated October 21, 2010.   The plaintiff and defendant were both represented by counsel during these proceedings.   The children's interests were represented by a guardian ad litem.   The witnesses at the hearing on these motions were the parties, the guardian ad litem and the family relations counselor who performed an evaluation.   The matter was tried over two days.

The parties' two children are Emma who is 12 years old and Connor who is 10 years old.   The defendant father has remarried.   The defendant lives in Derby and the plaintiff lives in Cromwell.

I. Custody

In order for a motion to modify custody to be successful, a party must prove that where a custody order was entered by agreement, that it was not in the best interests of the child(ren) at the time it was entered or is no longer in the best interests of the child(ren).   Based upon the facts found, the court considers the best interest factors codified in Conn. Gen.Stat. 46b-56(c).

Under the dissolution of marriage judgment which was entered pursuant to the parties' stipulation at the time, the parties were ordered to attend co-parent counseling to resolve issues involved in joint decision-making that they could not resolve on their own and conflicts that arose over the access schedule for the father.   At the time the orders were entered he had a work schedule that varied so that it was necessary for the parties to adjust his access time consistent with his days and time off.  (The defendant's work schedule is fairly steady now.)   That schedule of access provides alternating weekends from Friday after school to Sunday at 8 p.m. (Monday morning in the summer) and every Tuesday and Thursday evening, one of those evenings to 8 p.m. and the other overnight (both overnight in the summer).   The schedule provided details on who was to drive the children to and from their access time.   Certain holiday and vacation access also was provided for.   Further, the parents agreed to alternate time off with the children in the event they were sick, and they provided that unless they agree otherwise, the children shall not be enrolled in any after school activities on Tuesdays and Thursdays, and, both parents “shall support and transport the children regarding activities taking place during that parent's access time.”   They were to have daily and unfettered telephone access to the children when they were with the other parent.   Finally, they agreed to communicate by email with each other.   At the time of that agreement the children had a guardian ad litem, clearly indicative of items of custodial dispute before the agreement.   They also had a custody evaluation by family relations at that time.

The plaintiff is a 44-year-old woman.   She lives with the children in Cromwell where they attend school.   She is employed as a psychologist in the Killingworth Elementary School.   The defendant is a safety instructor with DMHAS for the state of Connecticut.   From August 2007 to June 2008 the parties engaged co-parent counseling with Dr. Polansky for 14 sessions.   The co-parent counseling with Dr. Polansky terminated because the defendant chose to stop it.   He thought it was ineffective;  the plaintiff found it effective.   Then the parties engaged in co-parent counseling with Dr. Robert Horwitz from November 2008 to November 2009.   They had 12 sessions with him.   The plaintiff terminated those sessions after the defendant became verbally abusive to her:  he swore at her and yelled at her.   His explanation for his conduct is that he was frustrated because the plaintiff was not responsive to a question he had asked.   The plaintiff told Dr. Horwitz that she did not feel safe or comfortable in co-parent counseling any more.

The parties put into evidence many of the email communications between them over the years.   After reading them, the court agrees with the defendant's acknowledgement at trial that ‘he was a jerk.’   It was not until he was in court testifying that the defendant has shown any insight or remorse in the way he has communicated with the plaintiff.   He was not respectful of the plaintiff or her point of view;  at times he was sarcastic and aggressive in the language he used to communicate with the plaintiff.   The language was not indicative of the modicum of respect for communication necessary for joint custody.

The counseling sessions had been to discuss issues of medical, orthodontic, educational, access transportation, summer access time and other disputes that had arisen in their joint legal custody relationship.   The parties had conflicts over the need of Emma for braces.   The next medical issue was over Connor's need for braces.   The parties had 6 to 8 sessions over this with Dr Polansky;  only after the plaintiff hired legal counsel for the issue did the defendant agree to Connor's braces.

One of the children has a particular condition that requires accommodations at certain times in her school day.   In December 2009, the team at school made certain recommendations regarding this.   The defendant was displeased with their approach and sent a letter to the school without informing the plaintiff.   She was alerted to the correspondence by a school administrator.

One of the children participated in a particular talking group called Lunch Bunch at school.   When the plaintiff went to sign up the child again, the defendant sent a letter to the school opposing it.   While the defendant opposed it, he could not even remember what grade his child is in when testifying in court.

In the summer of 2009, the plaintiff returned to court for an order that the children could attend summer camp after the defendant opposed it.   The camp, Interlochen in Michigan, was paid for by the maternal grandparents.   The older child had gone the summer before.   The defendant opposed the camp, indicating he would not agree unless he got more overnights with the children.

The parties have fundamental disagreement over the importance of the children participating in extracurricular activities.   The plaintiff has the children enrolled in karate.   It is particularly important for the child with the special accommodation needs.   It is important for the child's condition.   The son has been enrolled in Cub Scouts since first grade.   The defendant does not take the children to karate on his weekends.   He does not take his son to the Cub Scouts during his time either.   The boy has not moved up to Boy Scouts because he failed to earn his Air of Light badge since he did not attend cub scout meetings on Tuesday or Thursday evenings when with his father.   The defendant father takes the position that they should go to these activities on his time with them only if they want to.   He provides them a choice each time.   While the defendant says he would be happy to take them to karate if they wanted to go.   What he does, though, is tell them what alternative fun activity he has planned.   He never entertained the notion that he could take the children to karate for an hour in the morning and then go about their activity for the day.   In the last few months the children are now showing less interest in their activities even when they are with their mother.   This is troubling.   Connor's two best friends are in the scouts.   They had been doing well in karate and just worked up to the next level.

The plaintiff seeks to resolve the decision-making conflicts by seeking an order of joint legal custody and final decision-making to the mother in the event of their inability to agree.   The defendant would like to retain joint legal custody without a final decision maker.   Instead he seeks an order that the parties return to co-parent counseling.   He assures the court that he is remorseful of his prior inappropriate communication with the plaintiff and that he will be respectful now.

The defendant is also seeking shared residency of the children.

These parents were referred to family relations for their second custody evaluation in March 2010, three years after their first one.   The family relations officer who performed a custody evaluation in this matter met with the parties, communicated with the pediatrician, school officials and with Dr. Horwitz.   The evaluator found that these parents do not effectively communicate or co-parent, though they both love their children.   Copious evidence was adduced regarding an incident in April 2010 that included Mr. Bushnell's present wife.   The incident is not worthy.   It is indicative to the court of the level of tension that has grown between these two parents.   In considering the events described above, the evaluator concluded that the father has been undermining the mother.

The evaluator determined that shared custody was not geographically realistic with the homes of the parents being in Cromwell and Derby.   Further, she concluded that the lack of communication is not conducive to a shared custody arrangement.   Finally, the evaluator found the plaintiff very supportive of the father in the children's lives.   Because of his attitude toward the children's activities and his willingness to divert them, the court concludes that the defendant's custodial approach is so inconsistent with the plaintiff's that shared parenting would not be in the best interests of either child.

The family relations evaluator recommends that the parties retain joint legal custody and if they cannot agree a third party “like a co-parenting counselor or a Guardian Ad Litem should advise them regarding issues in dispute.”   The problems in co-parenting has involved issues varying from clothes, to activities, transportation, schooling, medical issues and summer camp.

The court can only partially support the evaluator's conclusion.   While these parties should continue to consult and attempt to agree, in their absence to do so, a parent should make a decision-in this case the mother.   After three years of co-parent counseling, these two parents are no further along in their ability to come to agreements on custodial decision-making matters.   Further, the defendant's history of his inappropriate communication with the plaintiff is the best evidence of the likely behavior in the future.   The children of this family have had three years of their parents struggling with joint decision making.   If they cannot agree, the time for talking with other people to help them negotiate their way with each other is passed.   It has not benefitted them.   The plaintiff, who consistently has the children's best interest at heart will make decisions as to what is best for the children.   The defendant has shown his contrariness and challenging nature in speaking with her and school officials.   Finally, the defendant's insistence that these children, at their age, should be able to pick when they want to do activities they are signed up for, while he tempts them with alluring alternative activities, serves to undermine the plaintiff as a parent, and, perhaps more troubling, sends inappropriate messages to the children.

The evaluator also provides a recommended schedule of access which provides for a weekly, holiday and vacation schedule, as well as who is responsible for transportation.   The recommended schedule provided that for all school days off during the school year the children should be with their mother since she would have the day off from work.   The evaluator did not recommend a split of school holidays and did not inquire as to whether the defendant had these holidays off from work as a state employee.   No cognizable reason was given for this.

The evaluator noted that the defendant chose to move to Derby and therefore he should be responsible for all transportation.   In fact, while he did move to Derby from the marital home in Old Saybrook, the plaintiff subsequently moved to Cromwell from the home when it sold.   More relevant to the court's consideration on the transportation issue are matters of fairness, where the parties work (Killingworth for plaintiff and Middletown for defendant, though he is elsewhere in the state at times) and where the children go to school.

The guardian ad litem testified as well.   This was a very experienced guardian who has served in that capacity in approximately 150 matters.   In her work she met with the parents, reviewed documentation including emails between the parents, reviewed the court file, conferred with the family relations officer, with Dr. Polansky and with Dr. Horwitz, participated in the Regional Family Trial Docket special masters program for this case and met with the children.

She noted that the younger child is excited about camp but told his father otherwise.   The guardian ad litem met with each of the children alone.   The children have a desire, particularly the youngest, to please their father.   Without any inquiry from the guardian as to the children's preferences for their living arrangements, both children told the guardian ad litem that they wanted to live “50/50” with their parents.   It was a phrase used more than once.   Each child said she/he wanted Sunday, Tuesday and Thursday overnights every week, which is exactly what the defendant requests of this court.   Because of these circumstances, the guardian ad litem believes that the defendant encouraged his children to ask for a 50/50 schedule.

The guardian is concerned about the manner in which the court orders in this matter are communicated with the children so that if their expressed wishes are not met they will be supported in understanding the situation.   She is particularly concerned about the younger child, after observing his ease to upset about custodial issues.   She noted that from the time from June 2010 to the week before the trial, she has observed an increase in stress in the children.

The plaintiff states firmly that the children love the time with their father.   The guardian confirmed that both children adore their father, that he is fun and they have a good time with him.   The guardian ad litem's major concerns echoes those of the mother.   The father fails to support the children in their activities.   She notes that the older child is an adolescent and that both children should be experiencing time in activities with their peers so that they can move their way into the world with confidence.

The family relations counselor, as discussed earlier recommends that the court issue an order that a third party assist the parents in joint decision making when they are unable to do so on their own.   The court finds that it is no longer in the best interest of the children to have a joint custodial arrangement that requires these parents to go to a third party or the court to resolve the continuing disagreements between them as to the matters that arise in the raising of their two children.   The court concludes that the plaintiff will make informed and thoughtful decisions consistent with the best interests of these two children when there is continued disagreement over an issue.   The court finds that the defendant is less disposed to consider the opinions of the plaintiff than she is to consider his opinions.   Further, the plaintiff is better suited temperamentally to having a fluid, working relationship with service providers for the children than the defendant.   Therefore, in the event of disagreement after consultation, the court concludes the plaintiff should be the final decision-maker.

As to the schedule of parenting responsibility, the court has concluded as stated above that shared parenting is not best for the children.   Their primary residence should be with their mother.   Their time cared for by their father should be cognizant of their need for and love of him.   It also must be scheduled specifically and clearly so that there is no further friction regarding it.   This family must function in a way that they can get on with their lives without constant recourse to court and service providers because they cannot agree.   Ambiguity and fluidity in court orders works well with parents that communicate well;  it is a recipe for disaster and further conflict here.

II. Child support and other financial orders

A. Child Support

The plaintiff seeks to modify child support and the provisions regarding work-related daycare and unreimbursed health care expenses, claiming a substantial change in circumstances in the defendant's income warrants the modification.   The defendant seeks to modify child support so “that there be no child support paid to either party.”   He did not state his basis as required by the rules.   However, since the same motion seeks an equal time of the children with each parent, the court can infer that is his basis.

The current child support order entered at the time of judgment requires the defendant to pay his share of child support, $162.00 per week to the plaintiff pursuant to the child support guidelines at the time the order was entered.   It also requires him to pay 33% of work-related qualifying daycare and unreimbursed health expenditures.

Conn. Gen.Stat. 46b-86(a) provides that there shall be a modification of child support where there has been a substantial change of circumstances of the either party.

At the time of the dissolution of the marriage, when the existing child support order was entered, the plaintiff was earning $1,188 gross and $779 net weekly for purposes of the Child Support Guidelines.   The defendant at that time was earning $972 gross and $638 net weekly for purposes of the Child Support Guidelines.   Presently the plaintiff is earning $1,564.57 gross weekly and $1,122 net weekly for purposes of the Guidelines.   The defendant earns $1,100 per week gross and $771.00 net for purposes of the Guidelines.   The Guidelines calculation for the same as submitted by the plaintiff is for a basic child support obligation of $410 per week of which the defendant's share is $168.00 per week and a 32% share of unreimbursed health expenditures and qualifying work-related day care.   The court does not find a substantial change of circumstances.   Further there is not shared parenting and therefore no basis thereon to deviate from the Child Support Guidelines.

B.Guardian ad litem fees

The guardian litem seeks an order of the court for the payment of her fees by the parties.   She submitted an affidavit that showed that she expended 55.95 hours on the case at the rate of $300.00 per hour.   The total fee charged is $16,785.00.   Neither the fee itself, the hours expended, nor the reasonableness of the rate were challenged by either party.   Pursuant to an order of the court previously, the parties were each to pay one-half of the fee.   The plaintiff has paid $5,325.00 and the defendant has paid $1,750.00 to date.

The authority of the court to order the payment of these fees is clear.   Rubenstein v. Rubenstein, 107 Conn.App. 488, 945 A.2d 1043 (2008).   The court looks to and has considered the statutory factors in Conn. Gen.Stat. Sec. 46b-62 in determining the allocation of the fee between the parties.   Noting the income as recited above, the court also notes that the plaintiff pays the expenses on her financial affidavit herself.   The defendant's expenses are paid in part by his current wife as indicated on his financial affidavit.   But for $2,200 in credit cards, all of his indebtedness is because of this litigation.   He acknowledges a debt to the guardian ad litem of $3,575 to the time of trial.   The plaintiff had $1,875 in credit cards due.

The plaintiff owns her own home, a condominium in Cromwell.   It is underwater with negative equity.   She has no current liquid assets but has about $80,330 in retirement accounts.   The defendant lives in a home owned by his wife.   He does not have title to it but contributes to its monthly maintenance costs.   He has no apparent liquid assets other than $3,293 cash value in a life insurance policy.   He has $41,180 in retirement accounts.   There is a double starred asterisk for contributions to an account that is not specified in the amount of $7,369.25 as of October 23, 2006.   The court cannot discern the nature of this asset or its present value.   After considering the evidence the court concludes that the parties shall be equally responsible for all of the guardian ad litem's fees.   The orders below reflect the same.   It would appear that both parties will be required to reach in retirement assets to satisfy this obligation.

Orders

1.  The court orders that the judgment is open and modified to provide:  the parties shall share joint legal custody with final decision-making in the plaintiff mother.   The parties shall communicate on all non-emergency major developmental issues affecting the health, education, religious and moral upbringing of their children.   After consultation, if the parties are unable to come to agreement the plaintiff shall make the final decision.   If a health emergency faces a parent to make a decision for a child and there is no time for communication with the other parent, the parent shall make the emergency decision and contact the other parent as soon as possible.   The parties shall both be entitled to attend all events, activities and appointments for which parents are invited to attend.   The parties shall both subscribe to Our Family Wizard and communicate through that mechanism when email communication is proper.   They shall also use it to list all such appointments, activities and events so that both parties will be aware of the children's schedules and health, educational, etc. appointments.

2. The father's access schedule shall be:  Commencing the first weekend after this decision is issued every other weekend Friday after school or 3:30 p.m. to Monday morning at school, or if there is not school and the father has the day off to 5 p.m.;   if the father is working then to the mother's home at 9 a.m. The father shall let the mother know if he is working that Monday 14 days before;  if it is a snow day then he shall communicate the same by 7 a.m. Monday.   Every week, when school is in session, the father shall have access with the children Wednesday after school or at 3:30 p.m. to school Thursday morning.   If school is not in session then he shall have them weekly from Tuesday at 5 p.m. to 5 p.m. on Thursday if he is off work for that Wednesday and Thursday;  otherwise he shall return them at 9 a.m. on the first of those two days that he has work.

3. At all other times than as specified in these orders, the children shall be with their mother.

4. The father and mother are each entitled to two vacation weeks with the children in the summer.   These may not be consecutive.   Each week is defined as seven days to include that parent's weekend.   The children may go to summer camp for up to three weeks that are left in the summer.   For scheduling purposes, the children's summer camp is selected first, and then in odd number years the father picks his weeks by March 1 and in even number years the mother picks her weeks by March 1. The other parent picks their weeks by April 1. Notice will be through Our Family Wizard.

5. The mother shall always have the children on Mother's Day from 9 a.m. to the end of the day/next day.   The father shall always have the children on Father's day from 9 a.m. to school the next morning.

6. As to all other holidays:

7.  Holiday and vacation scheduling supercedes weekly scheduling.

8. Each party shall pay one-half of the guardian ad litem's total fees within 45 days.

9. The plaintiff has failed to prove a substantial change of circumstances regarding her motion to modify child support.   Said motion is denied.

MUNRO, JUDGE

Munro, Lynda B., J.