Matthew Brown v. Nancy Brown (2012)

MEMORANDUM OF DECISION

This action seeks the dissolution of the parties' twenty-one-year marriage.   The action was commenced by complaint dated February 9, 2010, and returnable to the court on March 2, 2010.

The parties with their respective counsel appeared at trial on December 6, 8, 9, 19, 22 and 23, 2011.   The court heard testimony from the guardian ad item (GAL) for the minor children, Attorney Ronald Scott, and from eight witnesses, including the parties.   The court received into evidence sixty-one exhibits.   The court considered all of the evidence presented, applicable common and statutory law, including without limitation, General Statutes §§ 46b–56, 46b–56a, 46b–56c, 46b–81, 46b–82, 46b–84, and 46b–215a, and the provisions of the Child Support and Arrearage Guidelines.   The findings of fact made by the court have been made by a fair preponderance of the evidence.

FINDINGS OF FACT

A. Procedural History, Pending Motions and Preliminary Matters

1. On February 22, 2011, the parties entered into a Pendente Lite Stipulation which was ordered and approved by the court on the same day (141).   Pursuant to the stipulation, the plaintiff agreed to pay periodic alimony to the defendant in the amount of $2,405 a week, without prejudice.   The pendente lite alimony was premised on several identified items, not all of which have come to fruition.

The stipulation provided further that the defendant would be relocating to Ontario, Canada on or before March 5, 2011 and thereafter the plaintiff would enjoy exclusive possession of the marital residence at 44 Sulgrave Road, West Hartford, Connecticut.

On May 11, 2011, the defendant filed a Motion for Contempt Non–Payment of Alimony, Pendente Lite which motion is dated May 7, 2011(143).   The motion alleges the plaintiff (i) failed to pay the court ordered alimony for the week of February 22, 2011 and (ii) made unilateral deductions from the court ordered alimony for amounts he believed the defendant owed him in the amount of $1,929.60.   On May 13, 2011, the defendant filed a Motion for Attorneys Fees on Finding No Contempt Section 46b–87 relating to motion 143(146).   On September 15, 2011, the defendant filed a Motion for Contempt Non–Payment of Alimony, Pendente Lite dated September 13, 2011 which motion reiterated the allegations and claims for relief set forth in motion 143(164).

On May 11, 2011, the defendant filed a Motion for Order of Payment of Counsel Fees dated May 9, 2011 to defend the pending action (144).

On May 13, 2011, the plaintiff filed a Motion for Modification of Pendente Lite Orders wherein the plaintiff sought to modify the alimony previously ordered by the court and sought an order that the defendant pay child support to the plaintiff (145).

On July 8, 2011, the defendant filed a Motion for Child Support, Pendente Lite dated July 6, 2011(147).

On July 22, 2011, the Defendant filed a motion for Immediate Hearing and Order of Custody, Access, Travel Fees and Counsel Fees dated the same date (149.00).   On July 29, 2011, the plaintiff filed a response to the defendant's motion (153).   Of the relief sought by defendant at the time, only the request for attorneys fees is pending at this time.

On August 25, 2011, the Plaintiff filed a Motion for Tissue Typing Tests (160).   The motion sought an order requiring the defendant to consent to the testing of fetal tissue obtained in April 2005 at the time the defendant suffered a miscarriage of twins.

On September 7, 2011, the court entered a temporary order in connection with, among one other motion, motions 149 and 153 providing, inter alia, that David will reside in Canada by agreement of the parties and Peter will remain in West Hartford.

On September 15, 2011, the defendant filed a Motion for Order of Payment of Counsel Fees, Pendente Lite dated September 13, 2011(165).

On September 30, 2011, the plaintiff filed a Motion for Attorneys Fees, Pendente Lite dated the same date (167).

On October 3, 2011, the GAL filed a Motion for Attorneys Fees of Guardian Ad Litem to the Minor Children, Pendente Lite (169.01).   As of that date, outstanding fees to the GAL totaled $14,325.

On October 4, 2011, the court, Prestley, J., entered orders related to, inter alia, payment of counsel fees and fees to the GAL (172).   The court ordered the plaintiff to take a loan against his 401(k) in the amount of $75,000 to be applied as follows:  $30,000 to counsel for each of the parties and the remaining $15,000 to the GAL. The court deferred signing a stipulation relating to the testing of the fetal DNA at Hartford Hospital pending investigation by defendant's counsel of certain issues.

Counsel for the defendant advised the court by letter to the Family Caseflow Office dated October 14, 2011 of certain matters relating to the cost and the locus of the testing of the fetal tissue and also that it had been represented to counsel that the plaintiff could not obtain a loan against his 401(k) to pay counsel fees as previously ordered by the court. (173.)

On October 14, 2011, defendant's counsel filed a Pendente Lite Motion for Order (174) seeking an order that the plaintiff withdraw funds from his 401(k) account to pay the fees of counsel and the GAL as ordered by the court on October 4, 2011.   On October 17, 2011, the plaintiff filed an Objection to the Motion for Order (176).

On October 17, 2011, plaintiff filed a Pendente Lite Motion for Relief under the Automatic Orders dated the same date (175) seeking to reduce the amount of life insurance he carries on his life and also to acquire additional disability coverage with the defendant paying one-half of the monthly premium by way of an offset to the alimony paid to her.

On October 17, 2011, the plaintiff filed a Motion for Specific Performance of Agreements Reached in Chambers seeking to compel the defendant to cooperate in the making of arrangements for the tissue typing of the fetal tissue (177).

2. Unsealing of Financial Affidavits.   There having been a contested hearing at which the financial orders were in dispute, the financial affidavits of the parties are hereby unsealed per P.B. § 25–59A(h).

3. Sealing a Portion of this Memorandum of Decision.   The court having heard all of the testimony during the trial proceedings, hereby, sua sponte, pursuant to case law and applicable statutory law and court rules, including, without limitation, General Statutes § 46b–11 ¹ and Practice Book § 25–59A(a)–(d),² has determined that it is appropriate that certain factual findings by the court as they relate to the minor children be sealed to preserve the interests of the children which, in limited instances, override the public's interest in reviewing the findings in this memorandum of decision.   The court has considered reasonable alternatives to such a sealing order.   The court in making this order to seal certain findings will tailor the order and the sealed findings so that it is no broader than necessary to protect the overriding interests.

There has been no hearing in this matter on the sealing of a portion of the court's decision either in court or in camera, therefore there is no transcript.

In accordance with Practice Book §§ 25–59A(c) and 11–20A(c), the court hereby articulates the overriding interests being protected, as well as its findings, underlying the order.

[a] family relations matters, as the present case is, generally do not relate to matters of public safety or involve matters of national security, where the public disclosure of information could override the need for privacy.   The present case is a private matter between private people.  Welch v. Welch, 48 Conn.Sup. 19, 27 (2003);  Wendt v. Wendt, 45 Conn.Sup. 208 (1996), petition for review by Dow Jones company denied by the Appellate court (1997).   In addition issues involving minor children have historically been protected from public dissemination.  State v. Davis, 48 Conn.Sup. 147 (2003) (35 Conn. L. Rptr.);  Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606–07, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982).

The evidence sealed in this court's decision is evidence relating to an invasion of the rights of one of the children and it further involves another of the children.   This court concludes that there are three interests that override the public's interest in viewing those portions of its decision:

1. The parties' right to litigate their marital problems which involve their children in a private manner;

2. The right of the plaintiff and defendant to prevent the exposure of the minor children to public scrutiny.   The commentary to Practice Book § 25–59A makes it clear that it was intended that pseudonyms, in place of the name of a party or parties, are not permitted in family cases;  and

3. The rights of the minor children, who are not parties to this action, to the continued confidentiality of information that was protected when the related issues were heard in an alternative court setting.

The court notes that the sealing of certain portions of this memorandum of decision may render portions of it choppy.

B. Relevant Facts

1. Initial Findings.   The parties were married on August 11, 1990 in St. Agatha, London, Ontario, Canada.   The parties lived in the State of Connecticut for at least one year before the filing the dissolution complaint.   All statutory stays have expired.

Two children were born to the parties during the marriage:  David born July 11, 1994 and Peter born March 3, 1999.

2. The Plaintiff's and Defendant's Education, Earnings, Retirement Accounts and Educational Funds for the Minor Children.   The plaintiff is forty-nine years old.   He is in good health.

The defendant is forty-seven.   She is in excellent health.

The parties met while the plaintiff was an intern at Duke and the defendant had moved to North Carolina from her home in London, Ontario, Canada for a change of scenery after completion of nursing school.   The parties were soon married.

The plaintiff graduated from Notre Dame in 1985 and from University of Massachusetts medical school in 1989.   After meeting at Duke and getting married, the parties moved to several locations in furtherance of the plaintiff's professional development:  to Milwaukee, Wisconsin for a one-year family practice internship in 1991;  then to Washington D.C. for a junior transplant fellowship in 1992;  then to Waterbury, Connecticut for a surgical residency in 1993–1995;  then to a liver transplant fellowship in London, Ontario in 1995–1997;  and then to Hartford, Connecticut where the plaintiff is a transplant surgeon.   He is currently employed by Hartford Hospital.   The plaintiff was a Major in the United States Army Reserves.   He served two tours of duty:  one in Kuwait and then in Iraq.

The plaintiff initially was engaged with other physicians in a group practice, but he is now employed by Hartford Hospital.

He currently earns $423,228 a year, gross.

The plaintiff possesses two retirement accounts:  the Hartford Clinical Associates, P.C. 401(k) Plan and the Hartford Clinical Associates, P.C. Nonqualified Deferred Compensation Plan, a plan intended to comply with Internal Revenue Code § 409A. He is fully vested in both plans.

As set forth above, the court, Prestley, J., ordered a loan be taken from the plaintiff's 401(k) to pay counsel fees and fees to the GAL.

The plaintiff's 401(k) plan is a qualified plan under ERISA which does not have a provision permitting loans.   Early withdrawals of employer contributed funds are permitted upon death or disability or severance of employment and upon the termination of the plan.   The plan includes a profit sharing element and distributions of such funds are permitted at age fifty-nine and one-half or in the event of a hardship.   A hardship is deemed to exist if a distribution is made to satisfy an immediate and substantial financial need;  a permitted need includes medical expenses, purchase of a principal residence or repairs to a principal residence necessitated by a casualty, payment of tuition for the next twelve month period, to prevent foreclosure or eviction and costs for funeral or burial of an immediate family relative.   A distribution is not necessary to satisfy a heavy need if other sources of funds are available such as insurance proceeds, the reasonable liquidation of other assets of the employee, by ceasing contributions to a plan, obtaining distributions from another plan or obtaining a loan from commercial sources.   The plan does not, accordingly, permit a distribution to pay counsel and GAL fees as ordered by the court.

The 409A plan is more restrictive than the 401(k) plan as distributions may only be accessed in the event of an unforeseeable emergency.   The plan administrator must determine the plan participant or beneficiary has suffered an unforeseeable emergency like an illness or accident, loss of property due to casualty (for which insurance proceeds are not available or insufficient) or another event beyond the control of the participant.

The funds within the 409A plan are thusly not available to satisfy the court's February 22, 2011 order.

The plaintiff's witness, Mr. Moffat, testified that he was not aware if a Qualified Domestic Relations Order (QDRO) is allowable for the 409A plan, but is permissible with respect to the 401(k) plan.   He did not have the values of the plans available to him at the time of his testimony.

Based on the financial affidavit of the plaintiff dated December 2, 2011, the court finds the value of 401(k) to be $423,000 and of the 409A to be $27,332.

The defendant attended McMaster University in Hamilton, Ontario for one year and then took a year off.   She later attended the University of Western Ontario and completed a three year nursing program.   She became licensed as a registered nurse.   She left Canada and took a job at Duke as a nurse.   After the marriage, she was able to obtain employment as a nurse in Milwaukee and Waterbury and as a research nurse and transplant coordinator in Washington, D.C. She did not work while the plaintiff was in London, Ontario for his transplant fellowship.   Once she had David she ceased working outside of the home and as a consequence her nursing license has expired.

The defendant was supportive of the plaintiff's career development, including supporting his decision that he had made a career mistake (for him) by going into a family practice area instead of surgery.   The defendant left positions that she found satisfying and rewarding to move when necessary for the plaintiff to further his professional development.   The defendant did obtain employment at the new locations although the moves hurt her earnings as it took time for her to obtain a position in a new area and she was unable to pursue career advancement at the positions she did obtain.

The defendant's nursing license expired in 1995.   The plaintiff testified he wished the defendant had pursued her education and advanced her career during their marriage.

The defendant, if she intended to live in Connecticut, which she does not, would be able to regain her nursing license in this state by taking an examination.   The defendant attended and completed a nursing refresher course at Capitol Community College from November 2009 through April 2010.   The defendant believed that if she obtained her license in Connecticut it would be recognized through reciprocity in Ontario.   She learned there is no such reciprocity.   Based on a letter of direction dated October 5, 2011 from the college of nurses of Ontario, due to the fact she has not been engaged in nursing practice for more than fifteen years, to again obtain her registered nurse's license, she will have to take sixteen required theory elements or courses and complete a required registered nurse clinical practice consisting of 400 hours of clinical and 300 hours of practicum.   The plaintiff credibly estimated it will take three years for her to obtain her license in Ontario.   She was unable to enroll in classes to work towards her license until she received the letter of direction.

“It is well established that the trial court may under appropriate circumstances in a marital dissolution proceeding base financial awards on the earning capacity of the parties rather than on actual earned income ․ Earning capacity, in this context, is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health.”  Weinstein v. Weinstein, 104 Conn.App. 482, 489 (2007);  Eliah v. Eliah, 99 Conn.App. 829, 833 (2007).

Due to the requirements that she must meet to obtain her license in Ontario, the court does not find that she has an earning capacity at this time.   She will need to spend the next three years satisfying the requirements to obtain her license and attending to the children.

The defendant has one retirement assets:  a TIAA–CREFF account having a value as of December 5, 2011 (based on the defendant's financial affidavit) of $700.

The defendant holds in her name two educational funds for the children:  each a Scholars Choice College Savings Program having a value as of September 30, 2011 for Peter of $52,815 and for David of $69,051.

3. The marital residence.   The parties acquired the marital residence at 44 Sulgrave Road in West Hartford in 1997.   It is a Tudor style home in a desirable West Hartford neighborhood.   The parties improved the yard by adding a built-in pool and landscaping.   The kitchen of the home needs to be improved—it is missing cabinet doors and the linoleum has worn through in spots to the subflooring.

The plaintiff has had two appraisals done of the 44 Sulgrave Road, West Hartford home by two different appraisers:  Joseph Stafford and Keith Burritt.   Mr. Stafford valued the home as of August 2010 at approximately $407,000 and Mr. Burritt valued the home as of October 2011 at approximately $247,000.   Mr. Burritt testified that he used the condition of the home as his primary criteria in finding other comparable homes to establish value, yet his appraisal noted the condition as being average.

The plaintiff had an appraisal performed by Marc Gottesdiener who valued the home as of December 2011 at approximately $312,000.   Mr. Gottesdiener credibly testified that he believes in light of the uniform standards for conducting an appraisal, the style of home is the main criteria to be used in finding comparable homes.   He used Tudor style homes within one mile of the subject residence.   Mr. Gottesdiener noted the condition of the home as being below average and adjusted his valuation accordingly.

It is within the court's discretion to accept or reject the opinions of expert witnesses.  Evans v. Taylor, 67 Conn.App. 108, 113 (2001).

The court finds the testimony and value by Mr. Gottesdiener to be the more credible.

The court finds the marital residence at 44 Sulgrave Road, West Hartford to have a value as of December 2011 of $312,000.   Based on the plaintiff's financial affidavit, the mortgage balance currently encumbering the home is approximately $338,000 which results in a negative equity of approximately $26,000.

4. Support Arrearage.   On February 22, 2011, the court ordered the plaintiff to pay the defendant the sum of $2,405 a week “commencing immediately.”

The defendant filed a motion for contempt on May 11, 2011, claiming the plaintiff failed to pay alimony for the week of February 22–28, 2011.

The plaintiff claims the amount was paid.   He claims he paid $5,000 to the defendant on January 31, 2011 towards her support for the month of February 2011.

The court finds that payment does not negate the obligation to pay support for the week of February 22, 2011 as ordered by the court.

The defendant credibly testified that she told the plaintiff he owed her for the last week in February and that he responded he did not think he should pay for that week and she should take him to court if she thought otherwise.

The plaintiff paid the defendant $5,000 on March 4, 2011.   He then sent her an e-mail indicating a balance of $5,416.67 was remaining for support due to her;  from that amount he deducted a total of $1,928.70 for funds he deemed she owed to him and he transferred to her the difference of $3,487.07 for the month of March—there was no indication that any portion of the payments made in March were to be applied to February.   The plaintiff claimed she owed him $1,090 for a gas bill incurred at the Sulgrave home prior to her vacating the home, $65.65 for a pet carrier purchased by the children's nanny at the behest of the defendant to assist her in her move, $285 for one-half of the cost of an iPad for Peter's birthday, $266 for a bill to Northeast Utilities for electricity consumed at the Sulgrave house before she moved out and $221 for one-half of a plumbing bill for work done at the Sulgrave home after the pipes froze—for a total of $1,928.70.

The defendant thought she had paid her share of the cost of the iPad. In fact, the defendant is more than willing to pay to the plaintiff what she may owe him—what she objects to is his self help in deducting the same from her monthly support payment.

The court agrees that the plaintiff may not elect self help.

After March 2011, the plaintiff had a monthly support payment credited directly to the defendant's account at the end of the month when he received his monthly pay.

The court does not find credible the claim that payments made at the end of the month were to be applied to the last two weeks of the month in which the payment was made, and then to the first two weeks of the month following the payment.

The plaintiff also avers that he has a small credit balance in his support payments as of December 4, 2011.   The exhibit introduced by the plaintiff (Exhibit 3) reflects that $2,389.11 was owed for support as of May 11, 2011 and that amount was owed even after the plaintiff gave himself a credit against the support for the $1,928.70.

The court finds the plaintiff failed to pay the alimony for the week of February 22, 2011 as specifically ordered by the court.

5. Breakdown of the Marriage.   As noted above, the plaintiff did a transplant fellowship in Ontario, Canada in 1995–1997.   The defendant wanted the couple to remain in Canada upon completion of the fellowship and the plaintiff agreed to try to do so.   The plaintiff, however, due to different licensing standards was unable to obtain a permanent position in Canada, but could do so in the United States and so they moved to West Hartford when the plaintiff obtained his position at Hartford Hospital.

After the move, the plaintiff worked as a transplant surgeon and not infrequently put in 70–hour weeks in that capacity.   The defendant was a stay-at-home mother and homemaker.

The defendant had a difficult pregnancy with Peter.   The plaintiff testified that thereafter the defendant feared becoming pregnant and there was a lack of intimacy in their relationship.   He claims to have been frequently rebuffed in his advances and they only had sexual relations when an excess of alcohol had been consumed.

The parties acknowledge that they both for a time were drinking alcohol too frequently in their marriage.

The parties had difficulty in the marriage due to number of hours the plaintiff was required to work, but after he returned safely home from his tour of Iraq the defendant stopped complaining about it to him as she was thankful he returned safely.   Although the defendant stopped complaining, the difficulty in the marriage continued.

The defendant did become pregnant again, in late 2004, with twins.   The defendant had a miscarriage in April 2005.   It was tissue from this miscarriage that the plaintiff sought to test during the course of these proceedings to determine if the plaintiff was the biological progenitor of such fetuses.

After she had the miscarriage, the defendant suffered from post-partum depression.   She received medical assistance to help.   The defendant thought things were going better in the marriage.

Sometime around 2007, the plaintiff had a one-night affair while he was at a conference.   He testified that there had been a continued lack of intimacy in the marriage.   His testimony that the kindness in the marriage was gone was credible.

In the late summer of 2008, the defendant and the children were on vacation in Canada.

[TEXT EXPUNGED BY COURT.]   The defendant credibly testified that the plaintiff told her the marriage was over while on a winter vacation.   The plaintiff claims the ending of the marriage was mutual—the defendant disagrees.   She claims that it was devastating and hurtful.

Due to the foregoing, the defendant began to drink more frequently and to such a degree that her good friend convinced the plaintiff to go to Rushford to meet with addiction counselors to talk about the defendant.   The credible testimony from the friend is that while she and the plaintiff were at Rushford, the plaintiff's inquiries centered more on himself than on the defendant.

In April 2009, the defendant came to the realization that she had to get herself together because the plaintiff was leaving the marriage.  [TEXT EXPUNGED BY COURT.]   She stopped drinking and has not had a drink since then.

Also around April or May 2009, the defendant began to believe the plaintiff was having an affair with a co-worker due to texts and calls he received.   The defendant was also concerned with the plaintiff's health as he had not stopped drinking, was having panic attacks and taking prescription medications.

The parties attempted marriage counseling in the spring of 2009.   The counseling did not work as the plaintiff kept saying that he did not want to be married anymore.

The plaintiff moved out of the home in August 2009 to a rental home a short distance away so he could remain involved in the children's lives.

The defendant began a romantic and sexual relationship with Paul Peggie, a long-time family friend (and distant relative), in November 2009.   The plaintiff believes the relationship began earlier.   The defendant became pregnant by Mr. Peggie in February 2010.   She, with the consent of the plaintiff, told the children of the pregnancy and, at Peter's request, brought him to a scheduled ultrasound appointment;  at that appointment she (and Peter) learned at that time the fetus was not viable.   In hindsight, she wishes Peter was not present at the examination.

The plaintiff testified he began a romantic relationship with his co-worker after he moved out of the home and after he learned of the defendant's relationship with Mr. Peggie.

The court finds the plaintiff is the party who affirmatively ended the marriage, but also finds that neither party is solely responsible for the breakdown of the marriage.   The marriage suffered due to the long hours worked by the plaintiff.   The court finds the defendant did not fully engage in or acclimate herself to life in Connecticut—she always had one foot in Canada.   The court further finds the plaintiff did not object to the defendant maintaining her ties with Canada.   The children have dual citizenship and have spent a significant portion of time with the defendant in her home country.

It is also apparent to the court that the parties have significant differences in the way they approach life and in their parenting styles.

6. Relationship of the Parties with the Children.   During the course of the marriage, the defendant stayed at home and attended to the children and their needs.   The credible testimony is that the defendant was the homemaker, cook, and childcare provider—including being a room parent, arranging and attending routine medical and dental appointments, arranging play dates and extracurricular activities and seeing to the completion of homework.   The defendant was described as hovering over the children.   The defendant credibly testified that the plaintiff was the fun dad;  he enjoyed time with the children including skiing, going to the movies and attending sporting events.   The defendant testified that the plaintiff has been a good father to the children and that they idolize him.   She had kind words for him in fulfilling his role as a father as and to the extent his demanding profession would permit.

The plaintiff was not as generous.   He has changed his opinion of the parenting skills of the defendant;  he considered her a good mother until about one year ago.

After the parties separated, they were able to cooperatively work out a parenting arrangement that provided for a shared parenting schedule.   Despite the schedule, the parties agreed to be flexible with the time the children spent in each of their homes.   David chose to primarily reside with the defendant.   David did not and does not get along well with the nanny that the plaintiff hired to assist in child care.

David and Peter have traditionally been excellent students and active in sports.

David had a very high grade point average in his sophomore year and was enrolled in honors courses for the next school year.   His grades began to slide in the fall of 2010 when he was primarily residing with the defendant in the Sulgrave home.   After the defendant relocated to Canada, and David lived with the plaintiff, David's grades slipped further.   He was doing drugs and drinking.   He was having unsupervised parties at the Sulgrave home.   He failed to take a final exam.   While in the care of the plaintiff, David lost about twenty-five pounds, but his weight loss went unnoticed.

There was testimony about an angry phone call between the plaintiff and David when David was visiting the defendant in Canada, at which time the plaintiff in no uncertain terms expressed his displeasure with David for having failed a class and for having lied to the plaintiff.   That much is understandable.   The credible testimony of the defendant, however, is that the plaintiff went further by telling David that the plaintiff was humiliated by and embarrassed to talk to his friends about David.

The plaintiff enrolled David in summer school so that he could make up his failed course work.   David went to live with the defendant in Canada after school ended in 2011.   Despite the plaintiff requesting and the GAL recommending that David return from Canada to West Hartford to attend summer school, he did not do so.   The defendant did not force him to do so.   The defendant, and apparently David, decided Canada provided a healthier environment for him.   The defendant believed it was more important for David to be away from West Hartford and his drinking and drugging friends than that he come back to go to summer school.   He has stayed in Canada and is now, apparently, off drugs.   He is doing well again in school and is involved in football.

Since David moved to Canada, there has been no order for child support.   The defendant filed a motion on July 8, 2011 seeking child support.   Likewise, there was no order for child support for Peter and the plaintiff also filed a motion seeking child support.

As mentioned above, David does not get along with the nanny—Jim Wall—who is a cousin of the children.   Mr. Wall is twenty-eight years old and obese.   On the first day after he was hired, the children found a bong in his car.

Since the defendant relocated to Canada, Peter has been living with the plaintiff and the nanny in the Sulgrave home.   The defendant does not believe that it is in Peter's best interest that he continues to live in the home where he was traumatized.

The credible testimony is that the physical condition of the home is like that of a bachelor pad.   Peter has complained that his clothes smelled like “butt.”   The plaintiff testified that all of the occupants are responsible for chores at the home and he disputes the reports that the home is unclean.   He acknowledges the comment Peter made about his clothes and addressed the situation.

Peter is by all accounts a peacemaker.   He wants to appease everyone.   Peter is concerned about the health and well-being of the nanny—that is unfortunate as the health of the nanny should not be a concern of a twelve-year-old boy.

Peter has always had good grades, including after the 2008 incident.   He is clearly a resilient child.   After the defendant moved and Peter has been living with the plaintiff, Peter has continued to maintain straight A's in class work and for that much credit is due to Peter.

The court finds Peter's continuing strong academic performance to be a factor, but not a determinate factor, in considering Peter's primary residence.   What it indicates to the court is that Peter will do well in school no matter where he may reside.

The children have participated in therapy with Dean Hokanson.   Peter continues to see Dr. Hokanson on a regular basis.   The plaintiff is pleased with Dr. Hokanson's work with the children, but he is not much interested in the therapist's opinion as to where Peter should reside.

It is interesting that the plaintiff alternately described the defendant as being overly protective of the children and of hovering over them to ensure their school work was done—yet he now criticizes her for being too lax when it comes to David and his college preparation.   The plaintiff is not satisfied with the way that the defendant is allowing David to make his own decisions as to whether to take the SAT exam more than once, as to what schools to visit and whether to enroll in college this upcoming fall or attend a thirteenth year of post-high school.

The defendant is not satisfied with the way in which the plaintiff is parenting Peter.   It appears one of her concerns is that the plaintiff is not prioritizing Peter—she cited as an example an incident after a Christmas concert in December 2011.   After the concert Peter wanted to eat at A.C. Peterson's to meet up with some of his school mates.   The plaintiff did not want to eat there as he does not like the food.   The plaintiff admitted he did not want to eat there and said it was not fair that Peter would get to pick the restaurant that time because Peter had picked a restaurant one of the last times they ate out—there being a rotation among the plaintiff, Jim and Peter for choosing the dining location when they eat out.   Peter had a melt-down and got the defendant involved.

The court finds that both parents have their faults when it comes to parenting and likewise both have their strengths.   The court finds, however, the defendant is the more nurturing and supportive parent.

When the plaintiff left the marital home, he together with the defendant, believed it was important for the children to be together.   The plaintiff changed his mind in that regard after David moved to Canada and he does not now feel it is important for the boys to be together.   Granted, there is a five-year age span between them and they do not share a great many interests or friends, but the credible testimony is that they do share a strong bond.   The evidence is that they have a good and fun relationship with each other and enjoy being in each other's company.

The court finds the plaintiff has discussed the court proceedings with the children and unnecessarily involves them in related issues.   When Peter went to visit the defendant over Thanksgiving, Peter was well aware of the upcoming trial dates.   Also, prior to the last day of the trial, the plaintiff had a telephone conversation with David at which time the plaintiff discussed with him the possibility of the defendant moving in with Mr. Peggie after the divorce.   The plaintiff subsequently indicated to the defendant that he should not have done so, but that he is worried about money.

The parties engaged in the early intervention program at the Hartford Superior Court on December 16, 2010 at which time they reached an agreement on a parenting plan and executed a memorandum of understanding pursuant to which it was agreed the children would reside in Connecticut with both parties on a two-week rotating schedule until July 31, 2012 at which time David would finish high school in West Hartford.   From and after July 31, 2012, Peter would reside in Canada with the plaintiff.

Prior to July 31, 2012, the defendant intended to reside in Canada for two weeks a month and then return to West Hartford to parent the children two weeks a month.

She left West Hartford to relocate to Canada on March 4, 2011.   The plaintiff advised her a few weeks after she relocated that he, after discussing the agreement with his counsel, decided the agreement was not appropriate as it shifted the burden to him in the event he thought Peter should not relocate to Canada and accordingly he was repudiating the agreement.   The defendant has been criticized during the trial for not thereafter returning to parent every two weeks as had been contemplated by the agreement, but, of course, at that point there was no agreement.

The plaintiff is seeking (i) joint legal custody of David with his primary residence with the defendant and (ii) sole custody of Peter with primary residence with the plaintiff.   The defendant is seeking to have joint legal custody of both children with primary residence with her.

The court finds the defendant is the parent most likely to continue to facilitate a parent-child bond with the non-custodial parent.

The court finds that by moving to Canada, the defendant's well-being and quality of life have improved and accordingly, her ability to parent is likewise improved.   The court finds her relocation was in her best interest and, correspondingly, in the best interest of the children.

The court does not find any significance in the fact that the home the defendant has rented is closer to Mr. Peggie's home than to her parents' farm.   She is within a reasonable distance of both.

The court further finds that, despite their differences, and even during the trial, which was unnecessarily contentious at times, the parties have been able to get along when it comes to the children.   They were able to agree on how the children would spend the Christmas holidays as the trial ended days before Christmas.   It is clear to the court that the parties continue to share a bond with one another and that bodes extremely well for how they will co-parent after the dissolution.

ADDITIONAL FINDINGS AND ORDERS

The court makes the additional findings and enters the following orders:

A. Jurisdiction and Dissolution

The court has jurisdiction in this matter which has been pending for more than ninety days.

The allegations of the complaint have been proven to be true.

The marriage has broken down irretrievably.

A decree of dissolution may enter.

B. Child Custody and Parenting Plan

The court makes the following orders and finds the same to be in the best interest of the minor children:

1. Custody. General Statutes § 46b–56(c), in relevant part, directs the court, when making any order regarding the custody, care, education, visitation and support of children, to “consider the best interests of the child, and in doing so [the court] may consider, but shall not be limited to, one or more of [sixteen enumerated] factors ․ The court is not required to assign any weight to any of the factors that it considers.” ³

The parents shall share joint legal custody of David and Peter.   The parties shall consult with each other on all non-emergency major developmental issues affecting the health, welfare, education, religious and moral upbringing of their children.   The matters for which consultation is required shall include, without limitation, religious education, educational programs and school choice matters, camp and work-related child care matters, extracurricular activities, and medical appointments and procedures.   If a health emergency faces a parent and a decision must be made for the applicable child and there is no time for communication with the other parent, the parent having the child in his/her custody shall make the emergency decision and contact the other parent as soon as possible.

These children are fortunate to have two parents who love them and want to be with them.

The parties are in agreement that David's primary residence shall be with the defendant in Ontario, Canada.

As set forth above, the defendant desires to have Peter reside primarily with her in Canada and the plaintiff wishes to have Peter remain in Connecticut.

The court has considered, in addition to relevant statutory law, case law, including, without limitation, Ford v. Ford, 68 Conn.App. 173 (2002), and Lederle v. Spivey, 113 Conn.App. 177 (2009).

In addition to the findings made above, the court further finds the move to Canada by the defendant was reasoned and well thought out.   She did not take flight after the plaintiff told her he did not want to be married to her any longer.   Her plans were made and implemented only after the parties reached a custody agreement.   The court finds she moved in reliance of the parties having reached an agreement.   It was after she moved that the plaintiff elected to repudiate the agreed-upon custody arrangement.

The defendant's extended family is in Canada.   The children have spent significant periods of time in Canada, including time during each summer and during other vacation periods.

Since moving to Canada, she has remained in contact with Peter and his teachers and therapist.   She has continued to be a parent to him from her new home.

The plaintiff has not been as involved in David's life in Canada.   He made one contact with David's new school, but did not follow up after failing to get a response to his contact.   The court acknowledges the time the plaintiff puts into his profession is necessarily limiting.

The court finds the defendant will use her best efforts to continue to foster the relationship between Peter and the plaintiff.   The court finds her to be credible in her support of the father-child relationship.   The court does not find that her failure to insist that David return to West Hartford to attend summer school and any delay in the return of Peter to West Hartford at the end of the summer of 2011 mean that she will withhold the children from their father.

The GAL, who was appointed by agreement of the parties, believes that Peter will do well no matter with whom he resides;  he testified that this is a close case as Peter has flourished in his current environment.

The GAL met with both parties on several occasions, met with Peter and consulted collateral sources he deemed necessary and appropriate.   The GAL did not make a visit to the defendant's home in Canada.   The GAL considers the defendant to be the primary caregiver.

The GAL reported that Peter likes the home life in Canada—the defendant's rented home is on a farm with animals—but Peter, ever the peacemaker, does not want to hurt his father.

The court finds that Peter has made his preference known—that he wants to go to Canada—by, among other things, telling his teachers in West Hartford that he would not be around after Christmas and therefore he should not be given any long-term assignments.   This preference was further demonstrated by Peter having being excited about moving to Canada after the children were told of the custody arrangement reached during the EIP.

The GAL has recommended Peter move to Canada to primarily reside with his mother.   The GAL, and the court, believes that Peter and his father will make every effort to maintain their bond despite any relocation to Canada.   Peter is committed to and loves his father.   Peter is an experienced and seasoned traveler, particularly for his age, and has no qualms about flying to visit.

The defendant had valid reasons for seeking the move, in that it, among other things, will enhance her life, and consequently the children's.

The court finds the defendant will do a good job of helping Peter integrate into a new environment—as it is not really new to Peter.   It is familiar and comforting to him.   The defendant's nurturing and supportive style will help the child through the transition.   Although close to his father's relatives in Massachusetts, he is also close to his maternal relatives and he will now be geographically closer to them.   The child has a close bond with the defendant's parents, on whom the defendant will sometimes rely for child care.

The court finds, after considering the factors set forth in case law and in applicable statutory law, it is in the best interest of Peter that he relocate to London, Ontario, Canada and reside primarily with the defendant.   The child's own interests in sustained growth, development, and well-being will be met in Canada.   The court orders that primary residency of Peter shall be with the defendant in London, Ontario, Canada.   He is to relocate to Canada as soon as practicable after the date of this memorandum of decision.   It is the intention of the court that the move occur as close as reasonably possible to the start of the next school term in London, Ontario (which is on or about the beginning of the third week in January 2012), but he is to move to Canada and start school there even if he misses the beginning of the next term.

The court finds further that the children and both parents are indeed fortunate that the plaintiff's profession generates sufficient income to permit the children and the plaintiff to visit one another.   The plaintiff has the financial resources to make trips to Canada to see David and Peter and to have Peter and David come to visit in Connecticut.   The court in determining child support has deviated from the presumptive support in recognition of his travel related expenses.

The court adopts and orders the parenting plan set forth in the Guardian Ad Litem Proposed Orders dated December 23, 2011, which are attached hereto and made a part hereof as Exhibit A, except the court orders that the plaintiff father shall notify the defendant mother by May 1 of each year, in lieu of April 1 of each year, of the four week parenting time he elects under section 3.a. of the GAL's proposed orders.

The court notes the defendant in her closing argument agreed that the parenting plan propounded by the GAL was also acceptable to her in lieu of the plan she had set forth in her proposed orders.

(a) Additional provisions:

(i) the parents shall equally share the cost of the children's airfare when the children travel to and from the plaintiff's and the defendant's home.   In the event the parents agree that the exchange of the children will be by car, the parties shall meet in Syracuse, New York for the exchange.

(ii) Either parent may vacation with the children outside of the continental United States and Canada and each may consider this the authorization to do so.

(iii) Any work-related child care, camps, extracurricular activity costs and any agreed upon private secondary school expenses shall be borne equally by the parties.   The parties shall exchange itemized lists of expenses on a quarterly basis to reconcile the expenses borne by each and any payment due from one to the other shall be made within thirty days of the agreement on the amount so payable.

C. Post–Majority Education

The court finds as a matter of fact that it is more likely than not that the parents would have provided support to their children for higher education or private occupational school if the family had remained intact.   Pursuant to the provisions of General Statutes § 46b–56c, the court reserves jurisdiction to determine educational support and each party reserves their respective right to file a future motion or petition for an educational support order.

D. Child Support

The court finds the plaintiff's gross weekly income is $8,139 and his net weekly income is $5,040.

The court finds the plaintiff's income exceeds the maximum amount of $4,000 net weekly income as set forth in the child support guidelines.   Under the guidance of Maturo v. Maturo, 296 Conn. 80 (2010), the court finds the presumptive child support payable by the plaintiff father to the defendant mother for two children is 15.89% of the net income of the plaintiff over the guideline amount.   The court finds the presumptive support payable by the plaintiff to the defendant for the two children is $801 a week ($636 basic obligation at assumed $4,000 net income, plus the product of $1,040 times 15.89).

After hearing the testimony of the parties and reviewing the financial affidavits, the earnings of the respective parties, and the deviation criteria set forth in Section 46b–215a–3(b)(6) of the Child Support and Arrearage Guidelines Regulations, the court finds the application of the guidelines would be inequitable or inappropriate due to the increased costs the plaintiff will bear when visiting the children in Canada (the court acknowledges the parties shall equally share the cost of the children's travel, but that the plaintiff shall pay his own travel and rooming expenses) and the court deviates from the presumptive amount and orders the plaintiff to pay the sum of $636 per week for child support.   The court orders the child support payments to be made by immediate wage withholding.

E. Alimony

The statutory authorization for the award of alimony in dissolution cases is provided in General Statutes § 46b–82.   Based on the statutory factors, including the age, education, earnings, vocational skills and work experience of the defendant and of the plaintiff, a time-limited award of alimony is appropriate.   See, Ippolito v. Ippolito, 28 Conn.App. 745, cert. denied, 224 Conn. 905 (1992).  “[T]he purpose of both periodic and lump sum alimony is to provide continuing support.”  Dombrowski v. Noyes–Dombrowski, 273 Conn. 127, 132, 869 A.2d 164 (2005).   In making an award, the court has taken into consideration the division of the marital property pursuant to General Statutes § 46b–81c.

Based upon the facts of this case, and having considered all the statutory factors pursuant to General Statutes § 46b–82, the plaintiff shall pay to the defendant alimony in the amount $2,500 per week for a period of three years from the date of the dissolution and then in the amount of $2,000 per week for a period of six years (for a total duration of the alimony award of nine years, subject to earlier termination as set forth below).

The court finds the defendant should be able to complete her nursing licensure requirements within approximately three years after the dissolution and thereafter be able to obtain employment in that field.

Alimony shall terminate on the earliest of the following:  (i) the death of either party;  (ii) the remarriage of the defendant;  (iii) nine years from the date of dissolution;  or (iv) the defendant's co-habitation with an unrelated person pursuant to General Statutes § 46b–86b.

The plaintiff shall also pay the defendant $1.00 per year in alimony, modifiable by the defendant for the purpose of any liability arising from the hold harmless obligation of the plaintiff as set forth in subsection G.1. below.

The defendant shall be permitted to earn gross income from employment of $75,000 per year and the plaintiff shall be permitted to earn gross income from employment of $475,000 a year without it being considered a substantial change of circumstances for a modification of alimony.

The court orders the alimony payments shall be made by immediate wage withholding.

No alimony is awarded to the plaintiff.

F. Medical Insurance for the Parties and the Children

The plaintiff shall maintain, at his expense, medical insurance coverage for himself.   The defendant shall, at her expense, maintain medical insurance coverage for herself.

The plaintiff shall maintain dental insurance coverage for the minor children so long as the same is available from his employer at a reasonable cost.   The defendant shall, on a quarterly basis, reimburse the plaintiff for 50% of the cost of the dental insurance.

So long as the children reside in Canada, the defendant shall obtain health insurance for the children through the Canadian health insurance plan.   In the event the Canadian health insurance is not available for the children at no cost to the parties, the parties shall agree upon an insurance program for the children and shall equally share the cost of the same.

The signature of the custodial parent or custodian of the insured dependent shall constitute a valid authorization to the insurer for purposes of processing an insurance reimbursement payment to the provider of the medical/dental services to the custodial parent or to the custodian.

The parties shall each be responsible for 50% of the amount of any unreimbursed medical, dental, optical, pharmaceutical, psychological, psychiatric, and orthodontic expenses, including any deductibles, for the minor children.

G. Division of property

“The trial court is empowered to deal broadly with the equitable division of property incident to a dissolution proceeding, and, consistent with the purpose of equitable distribution statutes generally, the term property should be interpreted broadly as well ․ General Statutes § 46b–81 confers broad powers upon the court in the assignment of property, and the allocation of liabilities and debts is a part of the court's broad authority in the assignment of property.”  (Citations omitted;  internal quotation marks omitted.)  Roos v. Roos, 84 Conn.App. 415, 420, cert. denied, 271 Conn. 936, (2004);  see Clark v. Clark, 115 Conn.App. 500, 505 (2009);  also see General Statutes § 46b–81.

1. Marital home.   The defendant shall quitclaim to the plaintiff all of her right, title and interest in and to the marital home at 44 Sulgrave Road, West Hartford, Connecticut.   The plaintiff shall have exclusive possession of the property.   The plaintiff shall be responsible for the expenses of said property, including, without limitation, the mortgage, real estate taxes, insurance and utilities and shall indemnify and hold the defendant harmless in regard to the same.   Not less frequently than annually, the plaintiff shall use reasonable efforts to refinance the marital home and remove the defendant from liability on the note secured by the mortgage on the same.

The court in awarding the marital home to the plaintiff has considered the value of the home as found above, the outstanding principal balance of the mortgage and the further allocation of marital assets and liabilities between the parties.

2. Personal property.   The parties have divided their personal property to their mutual satisfaction.

3. Automobiles. The plaintiff and the defendant shall each retain the vehicle used by each as of the date of the trial, i.e., the plaintiff shall retain the 2004 Chrysler and the defendant shall retain the 2003 Suburban, and be responsible for all costs and liability associated therewith, including, without limitation, taxes, insurance and upkeep.   The defendant shall cooperate with the plaintiff to ensure that the registration of the Suburban in Connecticut has been terminated and all taxes thereon have been paid.   Each party shall hold the other harmless from any and all debt secured by or liability associated with their respective vehicles.

4. Savings accounts and bank accounts.   The plaintiff and defendant shall retain as his/her sole property free and clear of any claim by the other their respective bank accounts as shown on their financial affidavits.

The two Scholar's Choice College Savings accounts shall be utilized to pay the fees due to the GAL, as set forth below.   Funds remaining in the accounts shall continue to be held by the defendant for the benefit of each child for his respective account.   The funds in the accounts shall be used to pay the college expenses of the children pursuant to the agreement of the parties or further order of the court.

5. Retirement accounts.

(i) The defendant shall retain her TIA–CREFF plan in its entirety.

(ii) The plaintiff shall convey to the defendant from his 401(k) plan by a qualified domestic relations order (QDRO) an amount equal to the sum of (y) 50% of the 401(k) fund valued as of the date of dissolution and (x) 50% of the 409A fund valued as of the date of dissolution, together any market gains or losses incurred from the date of dissolution to the date of transfer.

The QDRO shall be prepared by Attorney Linda Ursin.   The cost of the QDRO shall be borne equally by the parties.

The Court shall retain jurisdiction over this matter to review, approve and enter as an order of the Court the QDRO.

(iii) The plaintiff shall retain sole possession of his 409A retirement plan.

6. Debts. The court finds the plaintiff, during the proceedings, accelerated the repayment of his student loan (the couple had traditionally paid $1,000 a month on the loan, but based on financial affidavits submitted by the plaintiff over the course of the proceedings, the student loan has been reduced from $57,000 at some point during the earlier proceedings to $44,000 by November 1, 2011 and from November 1, 2011 to December 2, 2011 it had been further reduced to $40,000).   The court further finds that at the time the divorce was instituted the balance on the parties' Capital One account ending in 5413 was approximately $10,000 and it remains at about that level, while the balance on the Discover card in the name of the plaintiff was approximately $8,000 at the time of the divorce, but it has since been paid off.

The court orders the plaintiff to assume responsibility for the payment of the Capital One card in its entirety.   The balance thereon shall be transferred to the plaintiff and he shall indemnify and hold the defendant harmless from liability on such indebtedness.

Except as set forth above, the plaintiff and defendant shall be responsible for the liabilities shown on their respective financial affidavits last filed with the court and each shall indemnify and hold the other harmless from liability therefore.

7. Life insurance.   To the extent available to him at a reasonable cost, the plaintiff shall maintain life insurance in an amount of not less than $500,000, naming the minor children as irrevocable beneficiaries thereon, so long as each such child is a full-time student or until he reaches twenty-three years of age, whichever is first to occur, and naming the defendant as the trustee of the insurance benefit for the children subject to probate court supervision.   Further, the plaintiff shall, until his obligation to pay alimony terminates, maintain life insurance in an amount of not less than $1,000,000, naming the defendant as an irrevocable beneficiary.

The plaintiff may not more frequently that annually reduce the amount of life insurance maintained naming the defendant as the beneficiary to equal the remaining balance of alimony payable to the defendant.

These amounts are further modifiable, based upon a change in income and the remaining eligibility of the children for support under General Statutes §§ 46b–84 and 46b–56c.

The plaintiff shall provide proof of maintenance of said policies to the defendant at least once annually.   The plaintiff shall also notify the insurance companies to send to the defendant duplicate notices of any potential lapse or cancellation for non-payment of premium for such policies.   The plaintiff shall sign an authorization or release to allow the defendant to make direct inquiries of the life insurance provider.   Said authorization or release shall expire when the plaintiff's obligation to carry life insurance terminates.

H. Income Tax Filings and Tax Exemptions

For the 2011 tax year, the parties shall file a joint tax return which shall be prepared by a certified public accountant acceptable to each of the parties.   The parties shall equally share in any refund and in any tax deficiency.

From and after January 2012, for so long as there are two eligible children who may be claimed as a tax exemption, the plaintiff shall claim David as an exemption and the defendant shall claim Peter.   At such time as only one child is eligible to be taken as a tax exemption the plaintiff shall take the exemption in even numbered years and the defendant shall do so in odd numbered years.

It is a condition precedent to the plaintiff claiming a child as a tax exemption in each year that the plaintiff must be current with child support for the year—that is all weekly payments of child support due for the year have been paid prior to December 31 of the applicable tax year.

The defendant as the custodial parent shall in all years for which the plaintiff may claim a child as a tax benefit, deliver to the plaintiff as the non-custodial parent a fully executed IRS form 8322 (or successor form therefore) allowing the non-custodial parent to take the tax exemption for the minor child, so long as the child remains as qualifying child for tax purposes.

I. Tax Indemnification

Each of the parties will indemnify and hold the other harmless with respect to any deficiency found by reason of that parties' income or deductions.

J. Tax Information

For so long as the plaintiff has an obligation to pay child support and/or alimony, the parties will annually exchange their W–2's, 1099's, K–1 and similar forms by February 15 each year and will provide each other with their income tax returns within five days of filing.

K. Fees

As to counsel fees:  The plaintiff has paid more to his counsel than the defendant has been able to pay to her counsel.   The court finds the plaintiff has, by his failure to timely provide a financial affidavit to the defendant during the course of the proceedings and by the conduct of the proceedings, unnecessarily increased the cost the defendant has incurred in defending the action.

According to the plaintiff's attorneys fee affidavit dated December 19, 2011, which was updated after the defendant questioned the accuracy of the amount of fees paid by the plaintiff to his counsel, the attorneys fees payable to the plaintiff's counsel through the close of evidence is estimated to be approximately $80,000 of which approximately $27,000 has been paid.   The attorneys fees estimated to be payable to the defendant's counsel through the closing of evidence is approximately $77,000 of which approximately $17,000 has been paid.   The court finds the fees to be within reason.

The plaintiff shall pay to the defendant within 21 days of the judgment the sum of $15,000 towards her legal fees.

Except as above set forth, each party shall be responsible for the payment of their respective attorneys fees and costs incurred in connection with the prosecution and defense of the dissolution proceeding.

As to the fees of the GAL, to the extent a withdrawal from the accounts is permissible, the court, in light of the totality of the financial awards made in this decision, orders the fees to be paid from the Scholar's Choice College Funds.   Each fund shall contribute one-half of the fees payable to the GAL. The tax consequences to the defendant as the owner/holder of the accounts shall be determined prior to the withdrawal of funds and a sufficient amount to cover such tax consequences shall be withdrawn as well—the court will retain jurisdiction to deal with any unresolved tax consequences.   Further, in the event such a withdrawal from the accounts is not permissible, the court will retain jurisdiction to determine the manner in which the GAL is to be paid and the apportionment of the fees between the parties.

L. Effectuation of Orders

Each party is ordered to sign whatever documents are necessary and, as presented to them by the other party, to effectuate these orders within ten days of presentment.

M. Pending Motions

1. Defendant's motions for contempt filed May 11, 2011(143) and September 15, 2011(164) with respect to the claim that the plaintiff failed to pay alimony for the week of February 22, 2011 and that the plaintiff wrongfully withheld the sum of $1,928.70 from alimony paid in March 2011.

When an allegation of contempt is made our courts have noted that “[i]n a civil contempt proceeding, the movant has the burden of establishing, by a preponderance of the evidence, the existence of a court order and noncompliance with that order.”  Statewide Grievance Committee v. Zadora, 62 Conn.App. 828, 832, (2001).   A finding of contempt cannot be based on an order that is vague and indefinite.  Wilson v. Wilson, 38 Conn.App. 263, 271 (1995).  “The contempt remedy is particularly harsh ․ and may be founded solely upon some clear and express direction of the court ․ One cannot be placed in contempt for failure to read the court's mind.”  Eldridge v. Eldridge, 244 Conn. 523, 529 (1998).  “Noncompliance alone will not support a judgment of contempt.”   Prial v. Prial, 67 Conn.App. 7, 14 (2001).  “[A] court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was willful (sic).”  Wilson v. Wilson, supra, 38 Conn.App. 275–76;  Niles v. Niles, 9 Conn.App. 240, 253–54 (1986) (sufficient factual basis to explain plaintiff's failure to obey order).

“[E]ven in the absence of a finding of contempt, a trial court has broad discretion to make whole any party who has suffered as a result of another party's failure to comply with a court order.”  Nelson v. Nelson, 13 Conn.App. 355, 367 (1988);  see also Fitzgerald v. Fitzgerald, 16 Conn.App. 548, 553, cert. denied, 210 Conn. 802 (1988) (though party's actions did not constitute contempt, court's remedial orders were well within the court's general remedial discretion).

Based on the facts found above, the court finds the existence of a clear and unambiguous court order requiring the immediate payment of alimony as of February 22, 2011.   The court finds the plaintiff knew of the order and willfully failed to pay the same on or before the date of the filing of the motion(s).  The plaintiff had the ability to comply with the order.   The court finds the plaintiff in contempt for his willful failure to pay the sum of $2,405 to the defendant.

The court further finds the plaintiff exercised self help in deducting the sum of $1,928.70 from the alimony.   The court does not find the same to be a willful violation of a court order.   However, in the exercise of its remedial discretion, the court orders the plaintiff to pay the same to the defendant.

The court grants, in part, the plaintiff's motion for contempt (146 and 164).

The plaintiff is ordered to pay to the defendant the sum of $4,333.70 on or before February 29, 2012.   The court finds the same constitutes an arrearage of support payments payable to the defendant pursuant to a valid pendente lite order and orders that the arrearage survives the issuance of the judgment.

The plaintiff is also ordered to pay on or before February 29, 2012 to the defendant the sum of $500 for the defendant's attorneys fees incurred in connection with the filing and prosecution of the motion for contempt.

The plaintiff's motion for attorneys fees on a finding of no contempt filed on May 13, 2011(146) is denied.

2. Defendant's motion for order of payment of attorneys fees filed May 13, 2011(144) is, based on the order of the court contained in this memorandum, moot.

3. Plaintiff's motion for modification of pendente lite orders filed May 13, 2011(145) is denied.

4. Defendant's motion for child support pendente lite filed July 8, 2011(147).   As set forth in the findings above, David moved to Canada in the summer of 2011.   The defendant's motion seeks an award of child support for one child for the period from July 8, 2011 to the effective date of these orders.

The court finds the plaintiff's gross income to be $8,139 a week and his net income to be $5,040 a week.   The defendant had no income and no earning capacity is attributed to her for the applicable period.

The presumptive child support for one child based on the child support guidelines and after considering the guidance of Maturo, 296 Conn. 80 (2010), is found to be $596 ($473 being the top rate under the guidelines plus the product of $1,040 x 11.83%—the top guideline bracket for one child) a week.   The court finds that based on the shared parenting (as Peter was living with the plaintiff) the application of the guidelines would be inequitable or inappropriate and deviates from the guidelines.   The court finds that the child support payable by the plaintiff to the defendant for the period of July 8, 2011 to December 31, 2011 to be $300 a week for twenty-five weeks for a total of $7,500.

The court grants the motion for child support.

The court orders the plaintiff to pay the sum of $2,500 to the defendant on or before February 29, 2012, $2,500 on or before March 31, 2012, and the balance of $2,500 on or before April 30, 2012.

5. The defendant's motion for, inter alia, counsel fees filed July 22, 2012(149) is moot.   No action is necessary on the plaintiff's response to the defendant's motion which was filed on July 29, 2012(153).

6. Plaintiff's motion for tissue typing test filed August 25, 2011(160) was, according to the court records, resolved in part.   To the extent the tissue typing motion remains a pending motion, it is denied.

7. Defendant's motion for counsel fees filed September 15, 2011(165) is moot.

8. Plaintiff's motion for attorneys fees filed September 30, 2011(167) is denied.

9. The GAL's motion for fees filed October 3, 2011 (169.01) in light of the orders set forth above and the court's continuing jurisdiction over the payment of such fees, is granted with payment to be made in accordance with the terms of this memorandum.   The court finds the fees to be reasonable.

10. The defendant's motion for order directing a cash out of the 401(k) to pay counsel fees filed October 14, 2011(174) is denied.   The objection filed October 17, 2011(176) is sustained.

11. The plaintiff's motion for relief from the automatic orders filed October 17, 2011(175), in light of the orders set forth above, is moot.

12. The plaintiff's motion for specific performance of agreement reached in chambers filed October 17, 2011(177) seeks no relief relevant to the representations and averments set forth in the motion.   To the extent such motion is pending, it is denied.

Unless otherwise specifically set forth herein, these orders are effective immediately.

SO ORDERED.

BY THE COURT,

Olear, J.

EXHIBIT A

GUARDIAN AD LITEM PROPOSED ORDERS

I. Custody/Parenting Plan

1. The parents shall share joint legal custody of their children, Peter and David.   The boys shall principally reside with their mother in Canada.

2. Peter should transition to Canada after the Christmas school break in time to start the second semester in Canada at the end of January 2012.   In the event the court's decision is entered after school resumes in Canada, then Peter should finish the winter/spring semester in West Hartford and start eighth grade in Canada.   Dean Hokanson should schedule several sessions with Peter and his parents as he deems appropriate to facilitate a smooth transition for Peter.

3. Father shall have reasonable and liberal parenting access with the children both in Canada and the United States to include but not be limited to:

a.  Four weeks during the summer between the end of school and commencement of football camp if Peter is participating or the week before school starts.   Father shall have first option to select his four weeks each summer provided he does so by May 1st of each year.

b. The Father shall have available to him parenting time for a minimum of two (2) full weekends per month in Canada or the United States.   These time periods of parenting time are inclusive of the holiday and three day weekend times set forth below.   In any month that the holiday and three day weekends do not provide Father with a minimum opportunity to have two (2) full weekends either in Connecticut or Canada with his sons, he shall be allowed to schedule another full weekend of parenting time in each of these months as his schedule permits with reasonable advance notice to the Mother.

c. While the Father can exercise his scheduled parenting time in Canada or the United States, the children shall not fly to Connecticut more than one time per month during the school year inclusive of school vacation travel.

II. Holidays and Vacations

1. Father shall have every American Thanksgiving weekend in Connecticut or Canada at his election.

2. Mother shall have every Canadian Thanksgiving weekend.

3. Father shall have the option of parenting time with the children every three day weekend resulting from Professional Activity Days of which there are anticipated six annually.   The Father can elect to have his access in Canada or in the United States.

4. Christmas. Commencing with 2011 and for all odd numbered years, the Father shall have the children from the day school ends in West Hartford through December 31.   In odd years, the Mother shall have the children from December 31 through their return to school in Canada (January 9).   In even numbered years, the schedule is reversed.   Father may elect to exercise his parenting time in Canada, Connecticut or elsewhere.

5. Other Holidays.   Mother shall always have Labor Day. Father shall always have Victoria Day (May 21, 2012).

6. Spring Break.   Father shall have the first option to have parenting time with his sons for a vacation or parenting time in Connecticut or elsewhere during Spring break.   Father to give Mother notice by January 1 of each year if he intends to exercise parenting time during the Spring Break vacation.

7. Easter. The parties shall alternate Easter weekend with the Mother having Easter weekend in even numbered years and the Father odd numbered years.

III. Miscellaneous Parenting Provision

1. Both parents shall have a reasonable opportunity to have daily telephonic, email and Skype communications with their sons.   The parents have already arranged for Skype connections.

2. Each parent shall keep the other informed of the children's location and contact information at all times.

3. Peter shall continue therapy with Dr. Dean Hokanson for as long as Dr. Hokanson deems necessary and at a frequency recommended by Dr. Hokanson.   This includes office visits while in Connecticut combined with telephonic sessions.

IV. Child Support

The Father shall pay child support in accordance with the guidelines.

V. College

The provision of § 46b–56c shall apply.   All college funds set aside for the children shall be applied to post secondary expenses in addition to the requirements of § 46b–56c.

GUARDIAN AD LITEM

BY Ronald T. Scott

BROWN, PAINDIRIS & SCOTT, LLP

100 Pearl Street

Hartford, CT 06103

Juris No. 20767

Telephone No. (860) 522–3343

FOOTNOTES

FN1. Sec. 46b–11.  (Formerly Sec. 51–335.)   Closed hearings and records.   Any case which is a family relations matter may be heard in chambers or, if a jury case, in a courtroom from which the public and press have been excluded, if the judge hearing the case determines that the welfare of any children involved or the nature of the case so requires.   The records and other papers in any family relations matter may be ordered by the court to be kept confidential and not to be open to inspection except upon order of the court or judge thereof for cause shown..  FN1. Sec. 46b–11.  (Formerly Sec. 51–335.)   Closed hearings and records.   Any case which is a family relations matter may be heard in chambers or, if a jury case, in a courtroom from which the public and press have been excluded, if the judge hearing the case determines that the welfare of any children involved or the nature of the case so requires.   The records and other papers in any family relations matter may be ordered by the court to be kept confidential and not to be open to inspection except upon order of the court or judge thereof for cause shown.

FN2. Sec. 25–59A.   Sealing Files or Limiting Disclosure of Documents in Family Matters(a) Except as otherwise provided by law, there shall be a presumption that documents filed with the court shall be available to the public.(b) Except as provided in this section and except as otherwise provided by law, including Section 13–5, the judicial authority shall not order that any files, affidavits, documents, or other materials on file with the court or filed in connection with a court proceeding be sealed or their disclosure limited.(c) Upon written motion of any party, or upon its own motion, the judicial authority may order that files, affidavits, documents, or other materials on file or lodged with the court or in connection with a court proceeding be sealed or their disclosure limited only if the judicial authority concludes that such order is necessary to preserve an interest which is determined to override the public's interest in viewing such materials.   The judicial authority shall first consider reasonable alternatives to any such order and any such order shall be no broader than necessary to protect such overriding interest.   An agreement of the parties to seal or limit the disclosure of documents on file with the court or filed in connection with a court proceeding shall not constitute a sufficient basis for the issuance of such an order.(d) In connection with any order issued pursuant to subsection (c) of this section, the judicial authority shall articulate the overriding interest being protected and shall specify its findings underlying such order and the duration of such order.   If any findings would reveal information entitled to remain confidential, those findings may be set forth in a sealed portion of the record.   The time, date, scope and duration of any such order shall be set forth in a writing signed by the judicial authority which upon issuance the court clerk shall immediately enter in the court file.   The judicial authority shall order that a transcript of its decision be included in the file or prepare a memorandum setting forth the reasons for its order..  FN2. Sec. 25–59A.   Sealing Files or Limiting Disclosure of Documents in Family Matters(a) Except as otherwise provided by law, there shall be a presumption that documents filed with the court shall be available to the public.(b) Except as provided in this section and except as otherwise provided by law, including Section 13–5, the judicial authority shall not order that any files, affidavits, documents, or other materials on file with the court or filed in connection with a court proceeding be sealed or their disclosure limited.(c) Upon written motion of any party, or upon its own motion, the judicial authority may order that files, affidavits, documents, or other materials on file or lodged with the court or in connection with a court proceeding be sealed or their disclosure limited only if the judicial authority concludes that such order is necessary to preserve an interest which is determined to override the public's interest in viewing such materials.   The judicial authority shall first consider reasonable alternatives to any such order and any such order shall be no broader than necessary to protect such overriding interest.   An agreement of the parties to seal or limit the disclosure of documents on file with the court or filed in connection with a court proceeding shall not constitute a sufficient basis for the issuance of such an order.(d) In connection with any order issued pursuant to subsection (c) of this section, the judicial authority shall articulate the overriding interest being protected and shall specify its findings underlying such order and the duration of such order.   If any findings would reveal information entitled to remain confidential, those findings may be set forth in a sealed portion of the record.   The time, date, scope and duration of any such order shall be set forth in a writing signed by the judicial authority which upon issuance the court clerk shall immediately enter in the court file.   The judicial authority shall order that a transcript of its decision be included in the file or prepare a memorandum setting forth the reasons for its order.

FN3. The factors set forth in General Statutes § 46b–56(c) are:  “(1) The temperament and developmental needs of the child;  (2) the capacity and the disposition of the parents to understand and meet the needs of the child;  (3) any relevant and material information obtained from the child, including the informed preferences of the child;  (4) the wishes of the child's parents as to custody;  (5) the past and current interaction and relationship of the child with each parent, the child's siblings and any other person who may significantly affect the best interests of the child;  (6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders;  (7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute;  (8) the ability of each parent to be actively involved in the life of the child;  (9) the child's adjustment to his or her home, school and community environments;  (10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the child's family home pendente lite in order to alleviate stress in the household;  (11) the stability of the child's existing or proposed residences, or both;  (12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child;  (13) the child's cultural background;  (14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child;  (15) whether the child or a sibling of the child has been abused or neglected, as defined respectively in section 46b–120;  and (16) whether the party satisfactorily completed participation in a parenting education program established pursuant to section 46b–69b.”.  FN3. The factors set forth in General Statutes § 46b–56(c) are:  “(1) The temperament and developmental needs of the child;  (2) the capacity and the disposition of the parents to understand and meet the needs of the child;  (3) any relevant and material information obtained from the child, including the informed preferences of the child;  (4) the wishes of the child's parents as to custody;  (5) the past and current interaction and relationship of the child with each parent, the child's siblings and any other person who may significantly affect the best interests of the child;  (6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders;  (7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute;  (8) the ability of each parent to be actively involved in the life of the child;  (9) the child's adjustment to his or her home, school and community environments;  (10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the child's family home pendente lite in order to alleviate stress in the household;  (11) the stability of the child's existing or proposed residences, or both;  (12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child;  (13) the child's cultural background;  (14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child;  (15) whether the child or a sibling of the child has been abused or neglected, as defined respectively in section 46b–120;  and (16) whether the party satisfactorily completed participation in a parenting education program established pursuant to section 46b–69b.”

Olear, Leslie I., J.