Dexter Pettaway v. Toni J. Pettaway (2011)

MEMORANDUM OF DECISION

This dissolution of marriage matter was tried to the court over two days in late February and mid-March 2011.   At the end of the trial, the court, at the specific request of the parties, dissolved the marriage and reserved all other orders regarding the child and financial matters for this written decision.

The parties married in West Hartford, Connecticut on March 27, 2004.   They had known each other for some time being active members of the same church.   Extramarital relationships on the part of the plaintiff husband stressed the marriage, but the parties attempted to remain together having had a daughter who they named Tyah (DOB 7/15/04).   The plaintiff alleges that the defendant also had an affair, but that allegation was denied and no supportive evidence for this allegation was presented to the court.   By the spring of 2009, the plaintiff vacated the marital residence leaving the defendant and minor child.   The case quickly became a fully contested matter and a custody evaluation was done by Family Services.   Issues were complicated by a number of incidents involving the police.   The paternal grandmother was arrested for shoplifting while the minor child was in her care and the defendant was arrested for ramming her vehicle into the plaintiff's parked automobile.   Protective orders against the defendant restricted communication between the parties, and court-endorsed agreements that prohibited Tyah from being alone with her paternal grandmother were frequently ignored by the plaintiff.

The plaintiff recently changed jobs.   He gave up a full-time job as a driver for Town Fair Tire in Rocky Hill to pursue his career as a musician.   He is currently employed as a drummer and musical director for Living Word Ministries located in West Haven, Connecticut.   He also works part-time at a local music store and gives private music lessons.   He has historically performed as a musician with different bands and currently is a member of a newly formed wedding band that is still in the rehearsal stage without any immediate bookings.   The defendant is employed full-time by Verizon Wireless in Wallingford, Connecticut.   She has had this position for a number of years.

The defendant and her daughter live in a condominium owned by a family member.   That property is in foreclosure, but the defendant testified that she did not know any of the details of the legal proceedings because she was not the owner of the property.   That testimony was disappointing and leaves the court without an important piece of information regarding her immediate plans to provide appropriate housing for the minor child.¹  Given the fact that the owner is her sister, the defendant should have been able to provide the court with more specific information, and the court can only speculate as to her reasons for not providing it.   No information was offered as to what alternative housing might be available if and when the defendant is forced to leave her current home.

Also troubling to the court is the complete lack of cooperation with the Family Relations office for their evaluation process by the defendant's boyfriend.   Although there are no allegations or facts to question the individual's character, as someone who lives with the minor child as a result of his relationship with the mother, his complete unwillingness to cooperate with the court also leaves the court with a less than complete picture of the child's environment.   Equally, if not more disturbing, was the plaintiff's testimony which was often contradictory and occasionally misleading, especially regarding his use of his mother to provide childcare for Tyah, despite his several agreements to the contrary and numerous court orders.

The parties are on notice that the court's conclusions, which are now part of the record, will be viewed by future courts should they find the need to return for additional litigation.   They must take great care to present their testimony to any future court as honestly and straightforwardly as possible because they will be viewed with additional scrutiny.

The difficulty with this family is finding a parental access schedule that can meet the child's needs and still accommodate the plaintiff's work schedule and lifestyle.   It is very clear from all of the evidence presented that Tyah loves both her parents very much.   She wants to please them and be a good daughter.   Tyah is doing her part;  her parents are not.   The plaintiff has great difficulty compromising his own needs and his professional ambitions to truly be an effective parent.   Additionally, he has never made a serious effort to find a new home that would provide Tyah with a room of her own.   His current living arrangement, in which he sleeps on the couch and she is in his bedroom during overnight parenting time, does not suggest to the child that she is a real and permanent part of his new life.   The defendant has allowed her anger and disappointment at the plaintiff to cloud her parenting efforts.   She is fortunate to have very supportive parents who are willing, perhaps even eager, to assist her with her two children.   She must remember, however, that Tyah does have two parents.

Having evaluated all of the evidence presented at the hearing, both in the form of testimony and documents, the court makes the following findings:

1. The court has jurisdiction in this matter;

2. The statutory stays have expired;

3. The allegations of the complaint have been proven;

4. There is one minor child of the marriage, to wit:  Tyah Pettaway, born July 15, 2004;

5. Pending medical determination of Anne Snow Pettaway's competency to provide child care, it is not in the minor child's best interests to be left in the sole care of her paternal grandmother;

6. Given the lack of cooperation with the court-ordered custody evaluation, it is not in the minor child's best interests to be left in the sole care of Darren McGregor;

7. The presumptive child support based on the Connecticut Child Support and Arrearage Guidelines is $134 per week and the current pendente lite support order is $137 per week;

8. The plaintiff has a sufficient earning capacity to support the current amount of $137.   This finding is based on the testimony of both parties as to the plaintiff's historic income-producing activities in addition to his current employment.   The finding does not restrict itself to a strict 40–hour week given the nature of the plaintiff's music profession;

9. There is an arrearage in the court-ordered child support payments owed by the plaintiff to the defendant in the amount of $3,244.00 ² as of the week ending March 19, 2011, subject to adjustment and correction;

10. Both parties are loving parents;

11. The living arrangements for the homes of both parents are less than perfect;

12. The parties, had they remained an intact family, would have assisted their child with post-secondary education expenses within their financial means;

13. Tyah is actively and happily involved with both her mother's and her father's respective churches.

The court enters the following orders after considering the evidence presented and the finding made in light of all applicable statutory criteria:

1. The marriage of the parties is dissolved as was initially ordered verbally on March 11, 2011;

2. The parties shall share joint legal custody of the minor child Tyah (DOB:  7/15/04);

3. Each parent shall provide the other with all significant contact information regarding the minor child's education, health and general welfare.   They are to keep each other advised of all activities important to the child so that each may attend and encourage Tyah in her pursuits;

4. Neither parent shall do anything to harm the minor child's relationship with the other parent and shall make every effort to ensure that Tyah is able to enjoy a loving and positive child/parent experience.   Each parent shall do all within their control to ensure that all of their extended family and friends do likewise;

5. The plaintiff shall have parenting time with the minor child as follows-

5.1 Regular Visitation shall be on a two-week rotating schedule:

5.1.1 In the first week—Saturday from 9 AM through the following Monday return to school.   If there is no school for whatever reason, his access shall be extended to 7:30 PM on Monday;

5.1.2 During the second week, his access shall be Thursday from after school through Friday return to school.   If there is no school for whatever reason, his access shall be extended to 3:30 PM on Friday.   If there is no school on his Thursday, the access shall begin at 9 AM;

5.1.3 This alternating schedule shall start on Monday March 28, 2011;

5.2 Holiday Access

5.2.1 The plaintiff shall have the minor child every December 24th from after school, 9 AM if there is no school, until 10 PM. Christmas shall be with the defendant from 10 PM on December 24th until 6 PM on December 25th;

5.2.2 Thanksgiving Day shall always be with the plaintiff;

5.2.3 Halloween shall always be with the defendant;

5.2.4 Hallelujah Night shall always be with the plaintiff;

5.2.5 New Year's Day from 6 PM on December 31st to 6 PM on January 1st shall always be with the defendant;

5.2.6 Easter shall always be with the plaintiff;

5.2.7 Memorial Day shall always be with the defendant;

5.2.8 July 4th shall always be with the plaintiff

5.2.9 Labor Day shall always be with the defendant;

5.2.10 Mother's Day shall always be with the defendant and Father's Day shall always be with the plaintiff;

5.2.11 If not otherwise indicated, all holiday access shall be from 9 AM to 6 PM.

5.2.12 Each parent shall have reasonable access to Tyah on her birthday—July 15th—which access shall be a minimum of one hour.

5.3 Vacation Access

5.3.1 Each party shall be entitled to two weeks of uninterrupted vacation time throughout the calendar year.   Said time does not have to be consecutive weeks;

5.3.2 Each Party shall provide the other parent with written notice of the vacation time being requested with a brief summary of any travel plans, if any.   Such summary must include all commercial travel schedules, access phone contact while away and a general itinerary of the vacation plans.   Such notice must be given as soon as available but not less than thirty (30) days prior to the start of such vacation.   The other parent shall acknowledge acceptance or rejection of the proposed vacation within five (5) days of the receipt of said notice.

5.3.3 In the event the parties cannot agree on any proposed vacation schedule, the plaintiff's proposal shall prevail in all even years and the defendant's shall prevail in all odd years;

5.3.4 Travel outside of the United States of America must be by agreement of both parents not withstanding the language of § 5.3.3 above.

5.4 Vacation access shall prevail over the regular weekly access schedule and Holiday access shall prevail over all other schedules;

5.5 The parties are free to agree to additional access time for each parent and are encouraged to work together to create a schedule in their daughter's best interests.

5.6 The minor child shall not be left in the care of Darren McGregor without the express written permission of the plaintiff and the child shall not be left in the care of the paternal grandmother, Anne Snow Pettaway without the express written permission of the defendant.

5.7 The plaintiff shall provide all transportation to and from access time with him.   The defendant shall advise the plaintiff of all reasonable places of pickup and return.

6. The plaintiff shall pay to the defendant for the benefit of the minor child weekly support in the amount of $137 plus $27 weekly against an arrearage of $3,244.   Said support order shall be secured by an immediate wage withholding order;

7. In addition, the plaintiff shall pay 40% of all unreimbursed and or uncovered medical/dental expenses for the minor child and 40% of all child care reasonable and necessary for the defendant to maintain her employment.   Said support, and all other support related orders, are made pursuant to Connecticut General Statutes, as amended, § 46b–84:

7.1 The defendant shall provide the plaintiff with her request for reimbursement at least quarterly.   Such request must include sufficient documentation so the plaintiff can reasonably determine the nature of the service, the cost of the service, the amount of insurance coverage, if any, and the amount being sought from him.

7.2 The plaintiff must advise the defendant of any objections to a reimbursement claim within ten (10) days of the receipt of the request.

7.3 The plaintiff shall make the reimbursement within thirty (30) days if the amount being sought is $250 or less.   If the amount is above $250, he shall have sixty (60) days to make reimbursement;

7.4 Failure of either party to comply with the time limits as set forth in §§ 7.1, 7.2 and 7.3 above shall result in that party's forfeit of their rights under this provision.   Failure of the plaintiff to make payments within the time limits prescribed shall result in the accruing of interest on the unpaid amount at the statutory rate of 8% per annum commencing on the due date as described in § 7.3 above.

8. The defendant shall continue to insure the minor child so long as the child is eligible for such coverage under the insurance provision in effect and the insurance is available to her through her employment at a reasonable rate.   If the defendant is no longer able to provide coverage, the plaintiff will do so if such coverage is available to him through employment at a reasonable rate.   If insurance must be purchased for the minor child outside of the employment of either parent, they shall share equally in the cost of such coverage.   This provision is modifiable;

9. The parties shall share equally all costs of Tyah's extra-curricular activities and enrichment experiences except that music lessons provided by the plaintiff shall not be reimbursed by the defendant.   Such activities must be approved by the other parent prior to the child being enrolled;  such approval shall not be unreasonably withheld;

10. The defendant shall have the right to claim Tyah as a dependant for tax filing purposes in all odd years.   The plaintiff shall have that right in all even years provided that there is no child support arrearage or unpaid valid reimbursement claim as of December 31st in such years;

11. For as long as either party bears a financial liability to the other for the minor child or under the terms of the post majority educational support provisions of this judgment, they shall exchange the first page of their federal income tax return and copies of all W–2 and 1099 forms issued to them.   They shall redact their Social Security Number from the materials and may also redact any income earned by a spouse.   This exchange of income information must take place no later than May 1st of year following the year in which the income was accrued;

12. The court shall retain jurisdiction for the minor child's post-secondary educational expenses;

13. Each party shall retain free and clear of any claim from the other the personal property now in their possession including but not limited to furniture, motor vehicles, bank accounts, investments, deferred income assets and the like.

14. Each party shall be liable for their own debts as are listed on their respective financial affidavits and shall hold harmless and indemnify the other party.

SO ORDERED.

BY THE COURT,

Adelman, J.

FOOTNOTES

FN1. The defendant has another child from a previous relationship who resides primarily with his maternal grandparents..  FN1. The defendant has another child from a previous relationship who resides primarily with his maternal grandparents.

FN2. The defendant's undisputed testimony on March 11, 2010 was that the arrearage of that week was $3,107 based on the weekly order of $137.   The court has simply added an additional week subject to proof that the support for the week ending March 19, 2011 has already been paid..  FN2. The defendant's undisputed testimony on March 11, 2010 was that the arrearage of that week was $3,107 based on the weekly order of $137.   The court has simply added an additional week subject to proof that the support for the week ending March 19, 2011 has already been paid.

Adelman, Gerard I., J.