Gerald Fournier v. Sharon Fournier (2011)

MEMORANDUM OF DECISION

The plaintiff has filed this post-judgment for contempt alleging that the defendant (now known as Sharon Proctor) is in contempt of the judgment of May 20, 2008 and subsequent orders entered on September 14, 2009.

He alleges the defendant failed and refused to enroll their minor daughter, Jill, in E.O. Smith High School for the 2011–2012 school year and failed to enroll Jill in the 2011 summer school program at said school.

The separation agreement of May 20, 2008 incorporated by reference a stipulation of custody and visitation of Jill dated May 14, 2008.   That stipulation provided for joint legal custody with the father being noted as the primary residential parent for school purposes.

It was also agreed that the father would have final decision regarding educational, extracurricular and medical matters.

Subsequently, the Court, on September 2, 2009, granted sole legal custody to the father.

It is not enough for a finding of contempt that there be non-compliance with an order of the Court.   The violation must be willful.  Wilson v. Wilson, 38 App. 263, 275, 276 (1995).   The parties in this case have attempted to plan for just about every contingency they could think of, but relationships between parties do not always follow a script.   Unforseen events are bound to occur and reactions are not necessarily well received by one party or the other.   The test is to determine if that party's actions were wilfully disobedient to an order of the Court.

In this case the daughter Jill, was enrolled in a magnet school in East Hartford.  (Jill's date of birth is September 30, 1995 and she is sixteen years of age.)   Her admission to said school was based on her residency in the town of Willington.   Jill was not doing well academically in the magnet school and her father thought she would be better off if she could transfer to E.O. Smith High School in Mansfield.   Ms. Proctor was not opposed to that, but was not doing anything about getting Jill enrolled for the 2011–2012 school year.   The guardian ad litem, Attorney Kim Duell;  became involved and persuaded the superintendent of schools, Bruce Silva of Jill's eligibility.   He had been reluctant to approve Jill because the residency requirement was that the child had to spend the majority of school nights in Willington, whereas the parenting schedule had Jill spending only two school nights per week in Willington.

Ms. Proctor testified that she was aware from news accounts of a mother in Bridgeport who had been arrested for enrolling her daughter in a Norwalk School and it was of considerable concern to her.   In any event, she did go to E.O. Smith and spoke to someone there, probably a guidance counselor, after which the school withdrew its approval of accepting Jill. (There was no evidence to whom she spoke or what was said.)   In any event, Attorney Duell did go again to the school to speak with Mr. Silva, the Superintendent, who was persuaded to re-approve Jill for admission, and Jill began the 2011–2012 school year at E.O. Smith.   She is presently a student there.

Simply, there is insufficient evidence to prove Ms. Proctor interfered with or attempted to block Jill's admission.   We do not know the person she spoke to at the school, or what was said.   Ms. Proctor said she wanted to find out what Jill's grade level would be since she had at least two failing grades in East Hartford.

The plaintiff next claims that Ms. Proctor took longer than two non-sequential weeks of parenting time this summer in violation of the agreement.

There were communications about the summer schedule, including an offer to meet (from the plaintiff) to discuss the differences and requests for summer access.

It appears that they, perhaps reluctantly, did work out an acceptable summer access.   This issue does not rise to a contempt.

The same is true for Ms. Proctor dropping her enrollment in the “Our Family Wizard” website.   She dropped out as a money saver.   The plaintiff has her current cell phone number.

As for Jill not getting into the E.O. Smith summer school program because of the alleged delaying non-action by the defendant, there was evidence which reasonably creates a doubt that Jill would have been eligible because of the conflicts with the summer plans the parties had for their summer access.

While there were instances when Jill was not returned from a visit on time, the Court does not believe those lapses are sufficient for a finding of contempt.   However, the defendant is cautioned that it is important for the child to be returned at the proper time.   Sanctions could follow if late returns are habitual.   It is noteworthy that on one occasion when Jill was returned, the plaintiff appears to have been asleep and the mother called the police who were able to awaken the father after some time, all to the mother's inconvenience.

In sum, the Court does not find the defendant to be in contempt.

Attorneys fees are not awarded to either party.

Lastly, there is the issue of payment to the GAL. The parties should be equally responsible for her fees.   While not in contempt, the defendant shares responsibility for payment of these fees.   Attorney Duell is to be commended for accomplishing the enrollment of Jill into E.O. Smith.

Attorney Duell's bill for professional services is $3800 plus her trial attendance and testimony which the Court will assess at $750 for a total of $4,550.

Each party shall pay $2,275 to the GAL within thirty days.   If the defendant does not make a timely payment the plaintiff shall make payment of any balance due to the GAL and shall be entitled to credit for such payment against any sums due on his promissory note to the defendant.

Klaczak, J.T.R.

Klaczak, Lawrence C., J.T.R.