Colleen DeNegre v. Steven DeNegre (2013)

MEMORANDUM OF DECISION REGARDING PLAINTIFF'S MOTION FOR CONTEMPT (160), AMENDED MOTION FOR CONTEMPT (162), MOTION FOR ATTORNEYS FEES (168), DEFENDANT'S MOTION TO MODIFY (166) AND MOTION FOR CONTEMPT (167)

A review of the record reveals that the parties were divorced, pursuant to a separation agreement dated December 4, 2008 wherein the parties would enjoy shared custody of their minor child, now 12 years old, with an equal amount of time between the two of them.   The parties appeared, together with the Guardian ad litem (GAL) on November 23, December 6 and December 7, 2011 for a three-day post-judgment hearing regarding parenting difficulties, caused mostly by the defendant father.

As a result of that earlier hearing, the court wrote a scathing 13–page decision, critical of father's mental health and parenting and entered the following orders:

1. The mother shall have sole legal and physical custody of the minor child.   She shall keep the father informed of all curricular, extracurricular, medical, dental, psychological appointments and activities.   She shall make available to the father any rosters or schedules for any activities that the child participates in.

2. During the week the father shall have the child from after school until 8 p.m. on Tuesdays and Thursdays or any other mutually agreeable days.   Unless the parents otherwise mutually agree, the father's weekday parenting time shall not include overnight parenting time.   If the father is unable to pick up the child at the conclusion of the school day, the child shall remain with the mother until the father is available for that pickup.   The father shall be responsible for transporting the child back to the mother's home at 8 p.m. During the remainder of the week, the child shall be in the mother's care.   The child shall not be enrolled in after-school care without the mother's permission.   The father will enjoy alternating weekends from the end of school on Friday until Sunday evening at 8 p.m. commencing December 16, 2011.   If the father is unable to pick up the child at the conclusion of the school day on Friday, the child shall remain with the mother until the father is available for that pickup.   The father shall be responsible for transporting the child back to the mother's home at 8 p.m.

3. For Thanksgiving, the father will enjoy all even years with the child and the mother will enjoy all odd years with the child beginning from after school on the date immediately preceding Thanksgiving Day and ending at 8 p.m. on Sunday evening.

4. For Christmas and the New Year's school holiday the father will enjoy all odd years with the child and the mother will enjoy all even years with the child beginning from after school on December 24 until Christmas day at 10 a.m. The other parent shall have the child from 10 a.m. on Christmas Day until 10 a.m. on December 29 when they shall switch again until the start of school following the holiday.

5. Easter, Independence Day, Memorial Day, Labor Day and other holidays shall follow the normal alternating weekend schedule except that the father shall have Father's Day and the mother shall have Mother's Day and each parent will have their own birthday with the child each year.

6. Each parent shall be permitted two non-consecutive weeks within or outside the state of Connecticut.   Each party will notify the other of their intended summer vacation plans by June 1 of each year.   If there is a conflict, the father's plans will control in even years and the mother's plans will control in odd years.

7. The parent who has the care of the child shall be responsible for ensuring that she is taken to all of her activities and events.   Neither parent shall deny the child's attendance at or participation in her activities.   Neither parent shall unreasonably schedule events and activities for the child which will reduce or eliminate the other parent's parenting time without first obtaining the consent of the other.

8. Neither parent shall do anything which will estrange the child from the other.   Neither party will make disparaging remarks about the other in the child's presence nor permit others to do so.   Neither party will discuss court-related matters with the child nor permit others to do so.

9. The child shall resume her therapy with Dr. DiCandia.   The parents shall participate in said therapy at the request of said doctor.   Both parents shall make arrangements to pay whatever outstanding bill that they have with said doctor.

10. Both parties shall be equally responsible for the cost of the GAL and shall pay their share within one year or subject to any other arrangements which are satisfactory to the GAL.

11. Absent emergency, the parties shall communicate through e-mail and text communication to each other.

12. Each parent shall permit the child to telephone the other parent when the child is in the other's custody.   Said communication will be at the election of the child in her sole discretion.   Each parent may encourage the child to telephone the other.

13. In the event either party seeks to file a future motion to modify any aspect of this parenting plan, they shall be required to file a Request for Leave to Modify as provided for in Practice Book § 25–26.

14. The court's order of September 26, 2011 that the father pay to the mother $311.61 for stenographic fees, $1,600 attorneys fees and $250 for stenographic fees and is incorporated by reference and made an order herein.   That shall be paid to plaintiff's counsel within one year.

15. The father shall pay child support to the mother in the amount of $133 per week and he is to pay 56% of any unreimbursed medical, dental, psychological, optical, or work-related day care expenses.

16. The father shall pay alimony in the amount of $90 per week.

17. The father shall pay an arrearage of $25,350 at the rate of $25 per week.

18. The father is found in contempt for failing to pay the court-ordered alimony and child support and shall pay counsel fees to the mother in the amount of $4,000 at the rate of $10 per week.

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

The parties returned to court, together with counsel and the newly appointed GAL on April 26, 2013 for a full-day hearing on the plaintiff's two motions for contempt and motion for attorneys fees and the defendant's motion to modify custody, child support and alimony and motion for contempt.   In the previous hearing, the court had previously found that:

The father has immense and irrational anger toward the mother.   There is presently pending a civil action instituted by the father against the mother for intentional infliction of emotional distress.   The court finds that his selfishness interferes with his ability of objectively assessing his own conduct.   Moreover, in assessing the best interests of the child, the GAL testified that based on his observations, the father's animosity toward the mother consumed an unhealthy portion of his life and interfered with his ability to parent appropriately.   See In re Tayquon H., 76 Conn.App. 693, 704–06, 821 A.2d 796 (2003);  Clougherty v. Clougherty, 131 Conn.App. 270 (2011).   The father has inappropriately involved the child in the instant dispute.   The father explained to the daughter that as a result of this litigation, he may have to move to California and she would never see him again.   She was anxious and crying as a result.   The father has encouraged or permitted his adult housemate to speak with the child and the GAL regarding this litigation.   He lives with former friends of the parties who sided with him and who detest the mother.   On numerous occasions, including a fourth of July celebration with the mother's family and the birthday party of the child's best friend, the father sabotaged the plans essentially because it was “his time.”   The child's best friend was having her birthday recently and the father refused to permit her to attend as this was “his time” and he took her to Boston for a day trip instead.   On another occasion, he sabotaged an outing to Lake Compounce which the child was looking forward to because the mother cursed him out and hung up the phone.   In other words, the father is unable to separate his anger toward his ex-wife from the best interests of the child.

The joint custody plan has not worked well for the mother, the father and most importantly, for the child.   Clearly, these two parents cannot co-parent successfully and the father needs counseling to contain his anger toward his ex-wife.   He loves his child but his anger clearly interferes with his ability to put the child's needs before his own.

FINDINGS OF FACT

1. In the 16 months since the last court proceeding, the father has gotten worse, not better.   He has apparently learned nothing from the December 2011 court decision and has made no changes in his behavior.

2. Although the court did not order him to obtain mental health counseling, it referenced in the strongest terms possible that he needed it.   Notwithstanding, he only visited with his pastor on several occasions and chatted with a sympathetic colleague at work who had a strong interest or understanding of mental health counseling.

3. In the past 16 months, the parties have continued to clash, argue and fail at any attempt to co-parent.   The father neglected to tell the mother that he had been terminated from his employment and that the child's health insurance had been canceled as a result.   While unable to pay his regularly ordered child support and alimony, he retained an attorney, having paid said attorney at least $3,000 thus far so that he could, in his own words, “fight for his rights.”   He accessed his daughter's therapy records and then used references from them in his discussions with her, causing her to be severely uncomfortable with returning to therapy.   On several occasions, the subject of the father's motion for contempt, the child was brought to a visit late, left early or failed to visit at all.   These were explained, credibly by the mother, that these visitation interruptions were due to the child's schedule, her lack of sleep the previous night or her own needs.   In response to a question from the court, the mother responded that the changes in the schedule were always made due to the needs of the child and not due to the needs of the mother.   As a result, the court cannot find the mother in contempt but rather, commends her for being flexible and attending to the needs of her child.   Sadly, the father is only able to see these occasions as a violation of his rights.

4. Notwithstanding, the father's motion for modification seeks a return to joint custody from the sole custody order which the court imposed 16 months ago.   The court finds that the father's motion to return to joint custody under these circumstances is nothing short of frivolous.

5. The GAL reported that the child is “the most anxious child she has ever seen,” due in large part to having been involved in toxic litigation between her parents for most of her childhood.

6. The father has had a number of turns of bad luck;  he was injured at work, causing him to receive a lower amount from workers' compensation rather than his regular wages, was terminated from his employment and has accumulated significant debt.

7. The father's income has gone from $865 per week to $474 per week gross or $406 per week net.

8. The mother's income has essentially remain unchanged since the last court order and she earns $385 per week net.

9. The presumptive child support based on these incomes is $98 per week from the father and that he pay 39% of the unreimbursed health care and day care expenses.

10. At the end of the court hearing on April 26, 2013, the court suspended the father's visitation rights until further order of the court.

11. The father has failed or neglected to pay to the mother $2,161.61 as previously ordered on December 9, 2011.

12. The father has failed or neglected to pay to the mother $3,640 in child support and alimony and $226.44 in unreimbursed medical expenses accumulated since the last court order.

13. The plaintiff has accumulated additional attorneys fees relative to the instant motions in the amount of $4,695.92.

14. Although the plaintiff was initially seeking an order of incarceration, upon reflection of how such an order might affect her child, she withdrew that request.

15. The GAL, having logged considerable hours in preparation of these proceedings, agreed to be compensated by the state of Connecticut at state rates.   The court finds that her fees are reasonable, that her work is commendable and that her willingness to be compensated at less than her usual hourly rate is quite charitable.

16. The court's previous finding of an arrearage of child support in the approximate amount of $25,000 and a payment of attorneys fees in the amount of $4,000 should be incorporated by reference.

17. The father should not be entitled to the medical or therapy records of the child as he has proven to be incapable of not discussing those matters with the child.

18. The child has shown a preference for visiting with the father, not from a pickup at school but rather, from 4 p.m. to 8 p.m. commencing and ending at the mother's home.

ORDERS

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

2. The father shall enjoy visitation with the child from 4 p.m. until 8 p.m. every Tuesday and Thursday with pickup and drop-off at the mother's house or any other mutually agreeable date, time and place.

3. Until such time as the father has satisfactorily completed a program of mental health counseling which includes a component of anger management and co-parenting, the father's weekend visits will be suspended and he shall have Saturday visits from 10 a.m. until 6 p.m. The child shall be permitted to participate in any of her curricular, extracurricular, sports or social functions during that period of time.   Said counseling shall include no less than 24 hours of one-on-one, face-to-face therapy with a licensed mental health professional with at least a master's level of education in a recognized field of mental health.   Upon successful completion of said course of therapy, the father shall deliver to the mother a certificate or letter attesting to the successful completion and then, he may resume the weekend visitation pursuant to the court order of December 9, 2011.   In the event that the parties disagree as to whether or not there has been substantial compliance with this order, the parties will first consult the Guardian ad litem and if they are still unable to still agree, they may return to the court by filing a “motion for advice.”

4. The father shall not be entitled to the child's medical or mental health records nor information pertaining to the child's mental health.

5. The parties are ordered to maintain medical insurance for the benefit of the minor child as available at a cost not to exceed 7 1/2 percent of their net take-home pay.   Otherwise, they shall utilize HUSKY and share any unreimbursed expenses equally.

6. The defendant shall pay previously awarded attorneys fees to the plaintiff in the amount of $2,161.61, $3,640 in child support and alimony, $226.44 in unreimbursed medical expenses, $4,695.92 in new attorneys fees, $25,000 in a previously found arrearage, $4,000 in previously awarded attorneys fees for a total of $39,723.97 at the rate of $40 per week.

7. Based on the mother having a net weekly income of $393 and the father having a net weekly income of $406, the presumptive child support order is $98 and 39% of any unreimbursed health care or day care expenses.   The father shall pay alimony of $25 per week and $40 per week on the existing arrearages.   Once the father resumes gainful employment of at least $700 per week, the alimony and child support shall revert to the figures as per the December 9, 2011 orders.

8. The father shall engage in a work search and physically apply to no fewer than 5 jobs per week in addition to any on-line or telephonic inquiries.   He shall keep records of his efforts and provide the mother with a detailed summary of those contacts every Sunday until he resumes employment.

Shluger, J.

Shluger, Kenneth L., J.