Terry Aliano v. Michael Aliano (2011)

MEMORANDUM OF DECISION REGARDING MOTION FOR EXCLUSIVE POSSESSION, MOTION FOR REFERRAL TO FAMILY RELATIONS FOR A CUSTODY EVALUATION, MOTION FOR PSYCHOLOGICAL EVALUATIONS AND MOTION FOR GUARDIAN AD LITEM FEES, PENDENTE LITE

A review of the record reveals that the parties were married on February 24, 2007 and have one child, issue of their marriage, Giovanni Aliano born March 2, 2008.   The parties appeared, with counsel, together with the Guardian ad litem on February 25, 2011 and then to March 29, 2011.

Findings of Fact:

1. The parties presently reside in the spacious marital residence together with the wife's 22–year–old son and 11–year–old daughter from previous relationships and the three-year-old son, issue of the marriage.

2. Living under one roof has proven to be intolerable for all concerned.

3. The Guardian ad litem testified on October 25, 2010 that “the parties need to be separated.”   She testified on March 29, 2011 that the tension, provocative behaviors and animosity is “getting considerably worse.”

4. The Guardian ad litem believes that it is in her ward's best interest that the parents separate.

5. The police and DCF have been called to the home on numerous occasions.

6. Both parties request exclusive possession of the marital residence and both parties agree that one party should stay and one party should leave.

7. The wife owns a three-bedroom home in Brooklyn, Connecticut, but entered into a one-year lease with another family commencing February 11, 2011, while these issues were pending.   The rental income approximately equals its carrying costs.

8. The wife's ability to vacate the marital residence quickly is limited by her lack of financial resources;  she is a full-time mother to her two minor children and has not worked outside of the home during the course of the marriage.   Moreover, she has obligations toward her 11–year–old child who attends the Norwich school system and is otherwise involved in the Norwich community.

9. The husband has owned this home for 13 years, well before the parties met and married.   He earns all of the money and pays all of the bills.   Moreover, his business has valuable and sensitive electronic equipment in the residence.   He has the financial wherewithal to continue to maintain the marital residence.   Nonetheless, it appears to the court that the husband is more able to relocate quickly, at least temporarily to other accommodations.

10. The Guardian ad litem is doing a thorough job and, in fact, was the Guardian ad litem during the wife's previous divorce regarding her now 11–year–old child.

11. The Guardian ad litem has expended $10,500 in fees thus far at $250 per hour.   Neither counsel objected to the number of her hours or the hourly rate and the court finds said fees to be reasonable and necessary given the circumstances.   She has been paid nothing thus far despite the fact that the parties have spent tens of thousands of dollars for their own counsel.

12. The court finds that the need for a psychological evaluation of the parties, pursuant to Practice Book § 13–11 is unwarranted at this time.   The court is unable to find that it is reasonably probable that evidence outside of the record will be required in which the mental condition of a party is material to this action.   Moreover, such evaluations are costly, intrusive and time-consuming.

13. The court finds that the Guardian ad litem, together with an evaluator from the family relations office of this district, can sufficiently make the necessary recommendations to the court to fashion an order regarding the care, custody and access of the minor child, issue of this marriage.

ORDERS:

1. The wife shall have exclusive possession of the marital residence commencing April 9, 2011 at noon at which time the husband shall vacate the premises.

2. The husband shall have exclusive possession of the marital residence commencing July 1, 2011 at noon at which time the wife will vacate the premises.

3. The husband shall return the lamps, light fixtures, artwork and all personal possessions which were existing in the marital residence in February 2011.

4. The wife shall not tamper with or in any way interfere with the electronic equipment in the basement of the house belonging to the husband's employer nor permit any one else to do so.   The husband or his employees may have reasonable access to the electronic equipment, with reasonable notice, when necessary.

5. The husband shall make up a list of personal property which he needs to utilize in his temporary residence within 48 hours and transmit that list to his wife.

6. The wife shall respond to that list of needed personal property within 48 hours.

7. The parties will return to court on April 4, 2011 at 2 p.m. to argue the personal property issues should they still exist.

8. The husband shall pay all of the usual and necessary expenses associated with the marital residence until further order of the court.

9. The parties will continue to exercise the access schedule with the minor child until further order of the court.   If they are unable to agree, they will consult with the Guardian ad litem and if they are still unable to resolve the access schedule, the Guardian ad litem shall file a motion for advice which will trigger the matter back to this court.

10. In anticipation of her vacating the marital residence, the wife shall transmit to the husband a list of needed personal property by June 1, 2011.   The husband shall respond to that list of needed personal property within five days.   The parties will return to court on June 13, 2011 at 2 p.m. to argue the personal property issues should they still exist.

11. The court finds that the Guardian ad litem fees are reasonable and orders that the defendant pay to her the sum of $10,500 in two equal installments on May 1, 2011 and June 1, 2011.

12. The matter is referred to the family relations division for a custody mediation and/or evaluation.

13. The motion for psychological evaluations is denied.

14. All other orders not inconsistent with these orders shall remain in full force and effect.

15. Parties shall file a case management agreement within one week with a view toward selecting trial dates for the month of September.

Shluger, J.

Shluger, Kenneth L., J.