Scott W. Eisenlohr v. Pamela Eisenlohr (2012)

RULING ON DEFENDANT'S MOTIONS FOR CONTEMPT (# # 251, 252.50, 257.50), DEFENDANT'S MOTION FOR MODIFICATION (# 250), PLAINTIFF'S MOTION FOR CHIILD SUPPORT (# 261);  PLAINTIFF'S MOTION FOR ORDER RE SUPERVISED VISITATION (# 260), PLAINTIFF'S MOTION IN LIMINE (# 262), GUARDIAN AD LITEM'S MOTION FOR PAYMENT (# 256)

On March 14, 2012, this court heard the defendant's three motions for contempt, the defendant's motion for modification, the plaintiff's motion for child support, the plaintiff's motion for order regarding supervised visitation, the plaintiff's motion in limine and the guardian ad litem's motion for payment.   The court will address the motions seriatim.

A

Defendant's Motions for Contempt (# # 251, 252.50 and 257.50)

The defendant filed three motions for contempt dated December 6, 2011, December 28, 2011, and February 1, 2012.   The December 6, 2011 motion alleged, inter alia, that the plaintiff engaged in conduct that interfered with the defendant's supervised visitation, and that the minor child is, on occasion, upset with the defendant during telephone conversations and during supervised visitation.   The December 28, 2011 motion claimed that the plaintiff was limiting the child's access to the child's therapist and that the child was experiencing “emotional and behavioral deterioration.”   The February 1, 2012 motion alleged, again, that the plaintiff was not bringing the minor child to the child's therapist as ordered and alleged, further, that issues had arisen in the child's school regarding the child's behavior and academic performance.

“In 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, 772 A.2d 681 (2001).  “Noncompliance alone will not support a judgment of contempt.”  (Internal quotation marked omitted.)  Prial v. Prial, 67 Conn.App. 7, 14, 787 A.2d 50 (2001).  “[A] court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was wilful.”  Wilson v. Wilson, 38 Conn.App. 263, 275–76, 661 A.2d 621 (1995);  Niles v. Niles, 9 Conn.App. 240, 253–54, 518 A.2d 932 (1986).

At the hearing on March 14, 2012, the court heard testimony from Ms. Judith Gorra, who has been responsible for overseeing the supervised visitation involving the defendant and the minor child subsequent to this court's order of April 1, 2011.   The court also heard from the parties when they responded to specific questions posed by the court.   Based on all of the evidence adduced at the hearing, as well as a careful review of the defendant's motions, the plaintiff's responses to the motions and the report by the guardian ad litem, the court finds that the defendant failed to meet her burden of proof relative to her motions for contempt.   All three motions are denied.

This very contentious case was filed in 2003 and has frequently dominated the court's calendar, resulting in the compilation of one of the largest family files in this judicial district.   The defendant, unfortunately, has continued down her well-established path of concluding that her quotidian disagreements with the plaintiff justify the filing of motions for contempt.   It may be that the defendant, a self-represented party, does not fully understand the requirements precedent to a finding of contempt.   The latter conclusion is doubtful, however, in view of the frequency with which the court has ruled on the many previous motions in which she has sought to have the plaintiff held in contempt.   The court has made its best efforts to explain to the defendant that minor issues and disagreements relative to, e.g., scheduling of visitation, are, in fact, matters that are frequently not caused by the wilful violation of a court order.   More often, and as was established in this case, they are normal, simple scheduling difficulties that are readily resolvable when two people, who are focused on elevating their child's needs above their own, work together in a spirit of compromise, understanding and good faith.   The court has further attempted to convey to the defendant that when a child misbehaves or when a child's academic performance dips, such situations do not lead to the ineluctable conclusion that the child's father must be in contempt of court.

The defendant's witness, Ms. Gorra, testified to having heard the minor child express the child's view of the situation, which was that “these court motions are ruining my life.”   The court heard that testimony, and can only hope that the defendant, too, was listening to her child's words.   The defendant's three motions for contempt are without merit and are denied.

B

Defendant's Motion for Modification, Postjudgment (# 250)

On December 6, 2011, the defendant moved for modification of custody, alleging an “extreme substantial change [in] circumstances.”   The defendant seeks immediate physical custody of the child.   The court finds no substantial change in circumstances warranting a change of the court's prior orders regarding custody.   On the contrary, under the custodial arrangement set by those prior orders, the child appears to be thriving with a single exception, and that is with regard to her relationship with her mother.   The defendant has failed to meet her burden of establishing a material change in circumstances, a burden that must be met before her motion could be granted.  General Statutes § 46b–56;  see Lane v. Lane, 64 Conn.App. 255, 256–57, 779 A.2d 859 (2001).   The motion for modification is denied.

C

Plaintiff's Motion for Child Support and Unreimbursed Medical Expenses (# 261) 1

On February 3, 2012, the plaintiff moved for child support and recovery of unreimbursed medical expenses.   It is true that the defendant is unemployed and has been unemployed for approximately two years.   In its order of April 1, 2011, the court directed the defendant to seek employment, submitting at least six applications per week with potential employers.   The defendant represented that she has done so, which would mean that she has submitted nearly three hundred employment applications since the order was entered.   Nonetheless, she claims that she cannot find employment.

Despite the foregoing, it is expected that the defendant will obtain employment at some point in the future.   There is no basis for concluding that the defendant should be relieved, any longer, of her support obligations.   The court's orders of December 1, 2010, supplemented by the court's orders of April 1, 2011, directed that the plaintiff have sole legal custody and primary physical custody of the minor child.   Due to the defendant's limited resources, she was not ordered to pay child support so that her available resources could be used for therapy.   However, in view of the fact that the defendant has largely completed the treatment that she had been receiving, the court finds that there exists a substantial change in circumstances, warranting a revision of the court's original child support order.  General Statutes § 46b–86.   In accordance with the Connecticut Child Support Guidelines, the defendant is ordered to pay sixty-six dollars ($66.00) per week in child support.   She is further obligated to pay 17% of all unreimbursed medical expenses relative to the minor child.

D

Plaintiff's Motion for Order re:  Supervised Visitation (# 260)

The plaintiff contends that the defendant's behavior “continues to be bizarre and irrational.”   The plaintiff argues that the defendant has disregarded multiple requests from more than one professional counselor and/or therapist that the defendant return the child's toys to the child, but the defendant has refused to do so.   The record supports the latter claim.   See n.1, supra.   The plaintiff argues that the current supervised visitation arrangement is not being carried out by licensed mental health professionals.   The plaintiff further argues that the current supervised visitation arrangement has not been successful and, in a particularly troublesome development, is becoming increasingly adverse to the well being of the child.

The evidence presented at the March 14, 2012 hearing supports the plaintiff's allegations.   The guardian ad litem, having consulted with appropriate professional service providers, recommended to the court that if the supervised visitation arrangement is adverse to the child's best interest, the court should attempt to restructure its prior orders regarding visitation.   The court agrees with the guardian ad litem.

The court's previous order providing that the defendant have two and one-half hours of supervised visitation per week is hereby vacated, and the defendant and child will participate in mother/child reunification therapy for one hour per week.   This order is made in the best interests of the child, and is based on the court's consideration of the factors set forth in General Statutes § 46b–56(c).  The defendant will bear the costs associated with such therapy.   If the therapist believes that additional time for reunification therapy is warranted, the therapist will so advise the guardian ad litem who, in turn, will report to the court.

The defendant will pursue mother/child reunification therapy with any one of the following:  Laura L. Erhardt, MS, LMFT, 246 Federal Rd, Unit CL–41, Brookfield, CT;  Lisa Rene Reynolds, LMFT, Ph.D., 601 Bantam Road, Bantam, CT;  Angelo Farenga, MA, LPC, 27 Siemon Company Dr., Suite 310W, Watertown, CT;  Elizabeth Thayre, Ph.D., 40 Dale Road, Avon, CT;  or David Pavlick, MS, LCSW, 409 Bantam Road, A- 1, Litchfield, CT.

E

Guardian Ad Litem's Motion for Payment (# 256)

By motion dated January 18, 2012, the guardian ad litem seeks payment for her services rendered.   The guardian ad litem conducted an investigation at the request of the court and in response to the defendant's allegations of contemptuous conduct by the plaintiff.   See General Statutes § 45a–132a.   The guardian ad litem's services were invaluable to the court and, ultimately, to the minor child.   The guardian ad litem submitted a statement for services rendered identifying the nature and extent of her efforts in carrying out the investigation.   The total amount owed, as set forth in that statement, is $3,277.50.

The court is authorized to order either parent to pay the guardian's fees in accordance with their respective financial abilities and the criteria set forth in General Statutes § 46b–82.   See Lamacchia v. Chilinsky, 79 Conn.App. 372, 375–76, 830 A.2d 329 (2003).   Although the plaintiff is employed and the defendant is not, the court notes that the plaintiff has little in the way of liquid assets, largely due to the overwhelming attorneys fees he has incurred in responding to the defendant's baseless charges, motions and false reports to the Department of Children and Families.   The court finds that the defendant has not made a serious effort to find employment, despite having been ordered to do so nearly one year ago.   The defendant represented to the court that many of her court-ordered employment applications have been carried out only over the internet.   The defendant is an intelligent, well-spoken individual.   It defies reason to conclude that, in two years, this defendant has been unable—after allegedly making a serious, concerted effort—to find employment of any kind.

The March 14, 2012 hearing was caused by the most recent, baseless motions filed by the defendant.   In order to address the charges set forth in those motions, the court required the assistance of the guardian ad litem.   Absent the defendant's unwarranted filings, the services of the guardian ad litem would not have been needed.   The court finds the guardian ad litem's request for payment to be reasonable and appropriate.   Under the circumstances of this case, the defendant is hereby ordered to make payment to the guardian ad litem in the amount of $3,277.50.

F

Conclusion

All orders imposed on April 1, 2011, unless expressly altered by today's ruling, remain in full force and effect.²  In particular, and in view of the fact that the defendant has continued her pattern of filing contempt motions that have no factual basis, see, e.g., her motion asking the court to hold the plaintiff in contempt for a decision that was largely made by Dr. Ayr and the minor child, the defendant will respect and continue to follow the court's April 1, 2011 order regarding the filing of motions.   The defendant's pattern of filing baseless motions is likely to cause unnecessary financial, emotional and psychological harm to the plaintiff and, either directly or indirectly, to the minor child, as set forth in more detail in the court's ruling of April 1, 2011.   For all of the foregoing reasons, the defendant is precluded from filing any further motions for modification of custody or visitation for six months from the date of this order.   See Taff v. Bettcher, 243 Conn. 380, 385–89, 703 A.2d 759 (1997).

So ordered.

John A. Danaher III

FOOTNOTES

FN1. At the hearing on March 14, 2012, the plaintiff withdrew his Motion for Return of Child's Property (# 258).   The court inquired of the defendant if she would voluntarily return the minor child's toys and the child's cat to the child.   The defendant refused to do so.   The plaintiff conceded that he is unaware of any authority that would permit the court to order the defendant, postjudgment, to surrender property that is currently in her possession, even if the property belongs to the minor child.   The plaintiff also withdrew his Motion for Stay (# 259).   Finally, the plaintiff had also filed a Motion in Limine (# 262) that, in essence, called upon the court to conduct the hearing in accordance with the applicable rules of evidence and in accordance with the requirements of General Statutes § 52–174.   The March 14, 2012 hearing was, in fact, conducted in accordance with all applicable rules of evidence.   The plaintiff's Motion in Limine is denied as moot..  FN1. At the hearing on March 14, 2012, the plaintiff withdrew his Motion for Return of Child's Property (# 258).   The court inquired of the defendant if she would voluntarily return the minor child's toys and the child's cat to the child.   The defendant refused to do so.   The plaintiff conceded that he is unaware of any authority that would permit the court to order the defendant, postjudgment, to surrender property that is currently in her possession, even if the property belongs to the minor child.   The plaintiff also withdrew his Motion for Stay (# 259).   Finally, the plaintiff had also filed a Motion in Limine (# 262) that, in essence, called upon the court to conduct the hearing in accordance with the applicable rules of evidence and in accordance with the requirements of General Statutes § 52–174.   The March 14, 2012 hearing was, in fact, conducted in accordance with all applicable rules of evidence.   The plaintiff's Motion in Limine is denied as moot.

FN2. The April 1, 2011 order, requiring the minor child to engage in therapy, see ruling at 16, ¶ 13, is hereby clarified in one respect:  the child's therapist is authorized to exercise her discretion and professional judgment in determining how often, or whether, the minor child requires further therapy with her..  FN2. The April 1, 2011 order, requiring the minor child to engage in therapy, see ruling at 16, ¶ 13, is hereby clarified in one respect:  the child's therapist is authorized to exercise her discretion and professional judgment in determining how often, or whether, the minor child requires further therapy with her.

Danaher, John A., J.