Melissa Mirabello v. Jeffrey Mirabello (2011)

MEMORANDUM OF DECISION

This action for dissolution of marriage was brought to the Superior Court, Judicial District of New Haven at Meriden and tried before the court on December 15th and 16th of 2010.   Both the plaintiff and the defendant appeared before the court and were represented by counsel.

The court makes the following findings of facts and orders:  The plaintiff, whose former name was Melissa Argiro, and the defendant were married on January 22, 1994, in the City of Meriden.   This court has jurisdiction in this action, all statutory stays have expired.   The parties have two minor children born of this marriage:  Amelia Mirabello, born April 21, 1998 and Samuel Mirabello, born August 18, 1999.   The parties have never been recipients of financial assistance from the State of Connecticut.   The marriage of the parties has broken down irretrievably.

The parties entered into a stipulated agreement which was accepted by the court wherein the parties agreed to the grounds for the dissolution, the joint legal custody of the children, post-secondary education orders and partial orders for the division of marital property.   The plaintiff wife is forty-two years old, in good health, a college graduate and has been employed as a secondary school teacher for the past fifteen years.   She is currently employed in the Avon school system and earns $81,571.00 per year.

The defendant husband has been a special education teacher for the past ten years and is currently employed at Maloney High School.   His annual income is $71,742.00.   Although he was diagnosed with a thyroid cancer and in September of 2009, and underwent surgical removal of his thyroid, he currently reports to be in good health, does not require any continued treatment with the exception of taking a synthetic hormone replacement pill once daily, and there is no evidence that the cancer may return.

I Custody

The parties are in dispute regarding the physical custody of the minor children.   The plaintiff seeks an order for the children's primary physical residence to be placed with her, whereas the defendant has proposed a shared physical custody arrangement wherein the children would reside with each parent for equal time.

The court heard testimony from each of the parties, the Family Services representative, Robert Lang, and from the guardian ad litem, Attorney Mark Volpe.

At the time of trial both parties were residing in the marital home and were operating under a shared parenting plan entered by stipulation pendente lite since September 14, 2009.   That plan provided for shared weekends and an alternate week night schedule and required each parent to prepare dinners and ready the children for bed.   Due to the plaintiff's early departure from the home in the mornings it required the defendant to prepare the children for school during the week.   Both parties complied with this parenting plan for the past fifteen months.

The plaintiff claims that she is the better custodial parent because she provides consistent routines and structure for the children and proposed a parenting schedule of “visitation (by the father) ․ of alternating weekends (with 2 overnight stays) and one or two midweek visits with the children.   This schedule should allow the children to complete their homework, shower and get into bed before 9:00 p.m. in order to be well rested and prepared for school.”

At trial, the plaintiff offered a full day of testimony offering an exhaustive explanation of specific incidents in an effort to cast the defendant in a bad light before this court.   The plaintiff described the husband's bad relationship with her mother, his jealousy issues, his lack of chores about the home, and her claims of harassment by the husband.   The court has considered her claims and has taken them into consideration along with her testimony that she had admittedly withdrawn from the marriage many years prior to the filing of the dissolution complaint.   Those facts, coupled with the plaintiff's refusal to engage in marital counseling or to communicate with the defendant in any manner while residing in the same home, leads this court to find that both parties were equally engaged in conduct that negatively impacted upon the marriage and the family, but does not constitute grounds to show that the father is not a loving parent who is ably fit to care for both his children.

The Family Services Officer, Robert Lang, testified that when he met with Mr. Mirabello for the purpose of conducting a custody study Mr. Mirabello could not think of anything bad to say about the wife and communicated to this court that the defendant had been actively engaged in parenting the children on a shared schedule and recommended the continuation of a shared parenting schedule.

When a court is involved in resolving issues of custody over the children, Conn. Gen.Stat. § 46b-56(c) provides the factors which a court may consider in determining what orders will serve the best interests of the children.   This court has reviewed those factors in relation to the evidence presented at trial and finds that both parents are equally engaged in parenting the children and have their best interests in mind and that it is in the best interest of the children to enjoy the benefits of a shared physical custody arrangement.

This court, after having considered the testimony of the parties, the exhibits entered into evidence, the testimony of the witnesses, and after having considered the statutory criteria, finds it to be in the best interests of the children to continue a shared parenting arrangement provided that the parties engage in co-parenting counseling.¹

II Child Support

The trial court finds the presumptive child support obligation under the Child Support Guidelines, based on the parties' combined net weekly income and the number and ages of the minor children, C.G.S. § 46b-215(a), to be as set forth in the attached worksheet (see Addendum 2)* and incorporated by reference.   The court further finds that pursuant to § 46b-215a-3(6) and the orders of this court, there are grounds for deviation from the presumptive amounts based on a shared physical custody arrangement will substantially increase expenses for the defendant and will leave sufficient funds remaining for the plaintiff to meet the basic needs of the children after deviation.

III Property

The parties have an interest in undeveloped property of land known as 130 Oak Street, Meriden.   The property was originally purchased as part of a larger parcel held by 130 Oak Street LLC and was divided for family members to build their respective homes upon.   There is one lot remaining but cannot be developed until further improvements are made.   The parties together hold a one-half interest in that remaining lot and the other one-half interest is owned by the defendant's brother, Robert Mirabello, and his wife.   The development rights to this property are valued at $60,000.  (Exhibit C.) Mr. Robert Mirabello has posted a $37,000 bond with the City for development rights on the property.   This court finds the present value of the property to be $60,000.00 and that the parties own fifty percent interest, amounting to $30,000.00.

ORDERS

1. The marriage of the parties is hereby dissolved on the ground of irretrievable breakdown.

2. The court accepts the agreement of the parties marked as Exhibit C and hereby orders the agreement to be incorporated by reference into the final judgment and to be orders of this court.

3. Neither party is awarded alimony.

4. The parties shall share joint legal and physical custody of the minor children.

5. Parenting schedule:

a) The parties shall participate in a shared parenting arrangement that provides for the mother to parent the children commencing on Monday and continuing through Wednesday a.m. and the father shall parent the children Wednesday p.m. after school and continuing through Friday a.m. The shared parenting arrangement will include alternate weekends.  “Weekends” are defined as commencing on Fridays after school, or from 4:00 p.m. when school is not in session, through Sunday at 6:00 p.m. Until the sale of the home, or until such time as the parties have secured a separate residence, the children will remain in the home and the parent who is not scheduled to parent shall remove himself/herself from the home.

b) Each parent shall each enjoy two uninterrupted weeks with the children during the summer school vacation;  these weeks need not necessarily be consecutive and each parent shall notify the other their choice of weeks by 1st day in May of each year.

c) In 2011, and all subsequent odd years thereafter, the father shall enjoy parenting the children on Thanksgiving and on Christmas Eve and the mother shall enjoy parenting the children on Easter and Christmas Day. On even years the mother shall enjoy parenting the children on Thanksgiving and on Christmas Eve, and the father shall enjoy parenting the children on Easter and Christmas Day. The parties shall alternate parenting time on the children's birthdays and all other state scheduled holidays.

d) Both parties shall have the right to attend any and all school, extra-curricular, or other activities involving the children whether or not during his/her access schedule.

e) The parties shall keep the other apprised of all activities and appointments of the children.   In the event they are unable to effectively communicate in this regard they shall utilize “Our Family Wizard” or such other online scheduling calendar.

f) Neither parent shall disparage the other in the presence of the child, nor allow others, particularly other family members, to do so.

6. Within seven (7) days from the date of this order, the parents shall contact Dr. Jeffrey Zimmerman of Cheshire, Ct, or a comparable therapists to schedule co-parenting sessions.   The duration of the co-parenting therapy shall continue until such time as the therapist determines that intervention is no longer necessary.   Should any disputes arise concerning custody or visitation the parties shall first address the issue with Dr. Zimmerman or a comparable therapist before returning to court in post-judgment litigation.

7. Neither parent shall pay child support to the other.   The shared custody shall constitute a deviation of the Child Support Guidelines.

8. The parties shall agree on the activities of the children, and the costs shall be divided equally between them.

9. The children shall have full and liberal access to either parent at all times by telephone or computer but in the absence of the child initiating such contact each parent shall respect and not interfere with the others' parenting time.

10. The father shall maintain health and dental insurance for the benefit of the minor children as agreed between the parties.   In the event health insurance is no longer available through father's place of employment then both parties shall be equally responsible for obtaining such insurance at a reasonable costs to be equally divided between the parties.   The parties shall equally share in any unreimbursed medical, dental, orthodontic, hospital, psychiatric, psychological and pharmacy expenses incurred on behalf of the minor children.

11. The husband shall convey to the wife $15,000.00 for her 1/4 (one-quarter) interest in the property located at 130 Oak Street, Meriden within 60 days of this decree.   In exchange the wife shall convey a quit claim deed to the husband and shall relinquish all right, title and interest in said parcel.   The husband shall be responsible for any expenses pertaining to the parcel including, but not limited to, taxes, improvement costs required in order to sell the property, and maintenance.   All rights and interests to the existing bond in the approximate amount of $37,000.00 (thirty-seven thousand dollars) posted with the City of Meriden shall remain the property of Robert Mirabello.

12. The marital home located at 135 Goodspeed Avenue, Meriden shall be listed with a mutually agreed upon licensed realtor and placed on the open market for immediate sale.   The net proceeds from the sale of the marital home, after reasonable and customary closing costs, shall be divided equally between the parties.   In the interim both parties shall equally divide the expenses of the home including taxes, mortgage, utilities, and maintenance.

13. The parties shall file a joint tax return for the year 2010 and equally share any property tax, mortgage and other allowable deductions.

14. Commencing the tax year 2011 the plaintiff shall claim the eldest child, and the defendant shall claim the youngest child, as a tax exemption.   When only one child is eligible to be claimed the parties shall alternate the exemption with the plaintiff claiming exemption in even years and the defendant in odd years.

15. The parties shall equally divide the balances in their jointly owned bank accounts as listed on their respective financial affidavits.

16. The parties shall equally divide the guardian ad litem fees.

17. Each party shall be responsible for payment of their respective attorneys fees.

BY THE COURT

Markle, J.

FOOTNOTES

FN1. When this court inquired of the parties whether a co-parenting counseling plan could benefit them, the plaintiff steadfastly refused while the defendant was open to the suggestion.   It is obvious to this court that the plaintiff is in need of co-parenting therapy in order to effectively participate in the joint legal custody process she has requested from the court.*Editor's Note:  The referenced attachment has not been included with the reported opinion..  FN1. When this court inquired of the parties whether a co-parenting counseling plan could benefit them, the plaintiff steadfastly refused while the defendant was open to the suggestion.   It is obvious to this court that the plaintiff is in need of co-parenting therapy in order to effectively participate in the joint legal custody process she has requested from the court.*Editor's Note:  The referenced attachment has not been included with the reported opinion.

Markle, Denise D., J.