Christine Mugavero v. Steven Mugavero (2011)

MEMORANDUM OF DECISION REGARDING PLAINTIFF'S MOTION TO SUSPEND VISITATION (148), PLAINTIFF'S MOTION FOR CONTEMPT (133), PLAINTIFF'S MOTION FOR CONTRIBUTION (131) AND DEFENDANT'S MOTION FOR CONTEMPT (135)

A review of the record reveals that the parties are the parents of one minor child, Zane Mugavero, born November 8, 1998 and the parents of one college-age child, Nicholas Mugavero born January 30, 1992.   The parties divorced pursuant to a marital separation agreement on February 16, 2006 and the family did not return to court until July 2010 when numerous and contentious postjudgment issues arose.   The parties appeared, together with counsel and the Guardian ad litem, on May 26, 2011 and then on June 8, 2011.   The court heard testimony from the parties, the Guardian ad litem, an individual who conducted the defendant's drug test, the defendant's probation officer and the defendant's fiance.

The court finds proven by a fair preponderance of the evidence the following:

1. The parties are the parents of one minor child, Zane Mugavero, born November 8, 1998 and the parents of one adult child, Nicholas Mugavero born January 30, 1992.   The parties divorced pursuant to a marital separation agreement on February 16, 2006.

2. The father has a history of substance abuse, anger and incarceration.

3. The mother has been cooperative and encouraging of a father-child relationship and has been the primary caregiver to both children.

4. There presently exists a child support order for the father to pay $81 per week in child support.

5. The father claims, through his self employment, that he earns only $400 per week.   There was evidence, however, that he has had the ability to spend money on his fiance's new vehicle and other discretionary expenses.

6. Over the past year, the father has paid only 13 weeks of child support and stipulates to an arrearage in the amount of $1,513.

7. The older son just completed his first year at University of Rhode Island and the mother is requesting funds for his subsequent years.   She testified that his out-of-pocket cost for college is $25,000 per year and that she assisted her son during his first year.   In seeming contradiction, her financial affidavit dated May 26, 2011 and representing the previous 13 weeks, shows no expenditures for her son's college expenses.

8. Until recent date, the father had the legal right to access with the minor child every weekend from Friday evening at 6 p.m. until Sunday evening at 5 p.m. He did not regularly or consistently exercise his visitation.

9. The father is presently on probation with a one-year suspended jail sentence, has a long history of substance abuse and was recently arrested for attempted possession of narcotics.   He professes his innocence and is confident that he will not be incarcerated as a result of this new charge.

10. The minor child was described as a cheerful and wonderful boy who sadly was stricken with cancer but is now healthy and in remission.

11. The Guardian ad litem testified that the child desperately wants a continued relationship with his father and that institutionalized supervised visitation is not in the child's best interest, notwithstanding the father's shortcomings.   He recommended a resumption of visits.

12. The mother testified credibly that she supports a father-child relationship but fears that her ex-husband, with a long drug history, has slipped back into using narcotics.

13. The individual who performed the father's drug screening test, chosen by the Guardian ad litem, testified that the tests proved negative but that the tests did not cover all known drugs.

14. The father's present living situation appears stable with his supportive fiance in an appropriate home.

ORDERS:

1. The father is found in contempt for his willful failure to pay court-ordered child support.   An arrearage of $1,513 is found and the father is ordered to pay his present order of $81 per week plus $19 per week on the arrearage for a total of $100 per week.

2. The father is ordered to pay the sum of $20 per week to his adult son commencing September 1, 2011 as an allowance while he is in college.

3. The father's access with the minor son shall recommence as follows:

Supervised access Wednesday June 15, 2011 from 5 p.m. until 8 p.m., supervised by and in the presence of the defendant's fiance.

Supervised access every Sunday commencing June 19, 2011 from 10 a.m. until 8 p.m. supervised by and in the presence of the defendant's fiance.

Supervised access every weekend from Friday at 6 p.m. until Sunday at 5 p.m. commencing July 8, 2011 supervised by and in the presence of the defendant's fiance.

Unsupervised access every weekend from Friday at 6 p.m. until Sunday at 5 p.m. commencing August 12, 2011.

4. If the father is more than 30 minutes late, without a call, for his regularly scheduled access, he shall forfeit that visit.

5. The father shall provide to the mother copies of all drug screenings relative to his probation.

6. In the event that the father is incarcerated, his access shall be suspended.

7. The father shall abstain from the use of any controlled substances and shall not ingest alcohol during or within six hours of any visit.

8. The father's motion for contempt alleging that the mother interfered with his access is denied, the court finding that the mother had good cause for alarm.

9. Both motions for attorneys fees are denied in that both parties were compelled to attend court on numerous issues, not just the ones that they prevailed on.

10. The defendant shall receive the tax dependency exemption for the minor child in each even year so long as he is current on his child support on December 31 of each year.

11. Neither parent will make disparaging remarks regarding the other parent in the presence of the minor child nor permit others to do so.

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

Shluger, J.

Shluger, Kenneth L., J.