Anita McKean v. Gregory McKean (2013)

MEMORANDUM OF DECISION

This fully contested dissolution of marriage action comes before the Regional Family Trial Docket on referral from the Danbury Judicial District.   At trial, the parties were both represented by counsel and the interests of the children were protected by a guardian ad litem.   Hundreds of exhibits were entered in evidence, the parties and the guardian ad litem testified.   There was also testimony from the family relations officer who performed a full custody evaluation upon referral from the court.   The entire family (mother, father and two children) are covered by HUSKY health insurance.   The State of Connecticut was provided notice of the same;  the attorney general entered an appearance in this matter and filed a written claim for relief concerning the same.   In her claims for relief, the plaintiff seeks sole legal custody and primary residence of the minor children with her, alimony in the amount of $1,000 per week for ten years or until her death or remarriage, child support, ownership of the marital home subject to the debt thereon, and other attendant orders.   In his claims for relief, the defendant seeks an order of joint legal custody with primary residence of the children with their mother, an order of unallocated alimony and support to be paid by him in the amount of $1,000 per week for one year and then step down to $750 per week for four years, certain orders regarding retirement funds, the home to the wife (with his cooperation in a refinance of the mortgage) and certain other attendant orders.   The parties both ask the court to retain jurisdiction over educational support orders for the minor children.   There are other orders that each party seeks within the court's jurisdiction.   Midway through this fully contested custody trial, the parties submitted a signed, written parenting agreement to the court that provided the schedule of parenting responsibility for the children and other issues;  it also identified the matters of custody upon which the parties still disagreed.

The court has carefully considered the statutory criteria including General Statutes §§ 46b–56, 46b–56a, 46b–84, 46b–81, 46b–82, and 46b–56c and case law regarding orders of custody, including joint custody, child support, alimony, health insurance for the children and ex-spouse, orders of assignment of assets and liabilities, educational support orders, and attorney fees.   Having considered all of the credible evidence the court finds the following facts.

I. Jurisdictional facts;  marital history

The parties were married on October 22, 1999 in New York City, New York. The plaintiff's birth name is Anita Kuan. One party has resided continuously in Connecticut since the bringing of this action.   Two children have been born to the marriage, Ethan and Isabel, both born June 22, 2004.   There have been no other minor children born to the wife since the date of the marriage and there are no other minor children issue of the marriage.   The family has been provided HUSKY health insurance.   For the reasons found, hereinafter, the court finds that the marriage between the parties has broken down irretrievably.   The court finds that there is no reasonable hope of its reconciliation.

The plaintiff is fifty-two years old.   She has both a bachelor's degree in business administration and a master's degree in early childhood education.   Both were acquired before she met the defendant.   Her health is very good, though she struggles with anxiety, heightened by these proceedings.   At the time the parties met in 1997 and at the time of the marriage she was employed full time in New York as a legal secretary with Viacom.   She lived in New York City. She had been there for four to five years by the time of her marriage to the defendant.

The defendant is forty-five years old.   While his health is generally fine, he has occasional migraine headaches, high cholesterol, some trouble sleeping and he tries to stop smoking cigarettes.   He has had bouts of depression.   Mr. McKean has a bachelor's degree in film which he acquired before meeting his wife.   At the time the parties met, he was living in Wilton, Connecticut with his parents and working in the film industry with his own companies consulting to other companies.   He moved into the plaintiff's apartment with her six months before they married.   The defendant is the father of a child born in April 2012 in Russia, during this marriage.   As necessary for this decision, further facts will be found later in this decision.

At marriage, the plaintiff owned a Fidelity IRA that her parents had started for her as a child.   She still owns it today.   She also has an interest in a Viacom (now CBS) 401k, and pension.   Her employment with Viacom ended on April 29, 2000, about seven months after marriage, when Viacom merged with CBS. From then to the present date, she made no contributions to any of these referenced assets.   Therefore, all of the principal contributions occurred premaritally.

Ms. McKean commenced work at McKinsey in May 2000, first as a floater and then as an executive secretary.   She worked full time in that position until January 2005, and part time thereafter until she was laid off in August 2009.   She has not been employed outside of the home from then until now.

The plaintiff transitioned from full-time to part-time work in January 2005, after the birth of the parties' twin children in June 2004.   Her maternity leave had extended to four months.   Thereafter, she found herself exhausted trying to work full time and care for the children and the parties' home.   She was the children's primary caretaker and also the family homemaker, accomplishing all of the domestic chores that are necessary and time consuming.

The defendant's work was done through his company, Alpha India Romeo, or AIR, Inc. AIR largely created films for businesses.   He also developed a second business line, MasterPhotoDVD, in which he created tutorials by well-known photographers.   The defendant's work schedule resulted in him often travelling and being away from home for blocks of time.   When he was not travelling he worked in a home office.   The defendant often traveled for work around the time when the children were born, largely to New Jersey, Long Island and Pennsylvania on day trips.   He worked in sound for films and then expanded into camera work, producing and editing films.   Before the birth of the children, the parties were able to travel with his work to Belize, Honduras and Puerto Rico. While that stopped with the birth of the children, the defendant's work travel continued.   He would be gone for days and sometimes up to three weeks.   The plaintiff supported her husband in his pursuit of this work and occasionally helped him with fulfillment of online Amazon.com orders for DVDs, banking shipments and being on the look-out for talented photographers to work with.   The books of his business have been done for the past four years by his father, who is experienced in the field.   In the end of 2011, he found it difficult to concentrate on his work with all of the family activity around him, so he removed the office to rental space away from the home.

The parties' marriage has had stressors throughout most of its tenure.   At around the time the parties were planning and waiting for the pregnancy of a child(ren), they pursued a short term of counseling to work on these stressors.   They both acknowledge that they are not good communicators at times and that skill deficiency resulted in a loss of verbal intimacy between the parties.   They lost the ability to talk about the things they cared about with each other and grew increasingly distant.   The plaintiff was absorbed with the immediacy and exhaustion of her work as a mother to twins and homemaker.   The defendant was absorbed with his work, in which he has always worked 60 to 65 hours a week, which leaves little “awake” time for a young family.   The defendant sought more attention from the plaintiff than was within her emotional resources to provide as a young mother of twins.   Their distance grew.   In May 2011, the plaintiff started seeing the psychologist the parties had seen together, because she was concerned about her marriage and thought her husband was having an affair.   They tried going together one time.¹

In March 2011, the defendant went to Russia on a business trip to direct (and ultimately produce) a film for a colleague and friend.   While in Russia, he engaged in an affair with a woman named Maria.   That affair continues to the present time.   She became pregnant;  a child was born of that relationship on April 13, 2012.   The defendant never told the plaintiff that he was having an affair and he never told her of the pregnancy or birth of the child.   The plaintiff, utilizing social media, discovered all three things on her own.   She never confronted the defendant with the affair, pregnancy or birth of the child.   The plaintiff filed this dissolution of marriage action on July 28, 2011.   The parties continued to live in the same home with their children under these circumstances right through to the beginning of March 2013 when the defendant moved out of the family home.   The children have not been told that their parents are getting divorced nor have they been told that they have another sibling.   The parties have spared these children the conflict.   The children were first told that there would be a time that they did not all live together when it was time for them to meet the family relations officer and the guardian ad litem.   The parents have had separate bedrooms, so perhaps these young minds have surmised the circumstances of the parents' relationship.   The plaintiff is very concerned that the children have learned through social networking and photographs on internet sites (with some restricted access) of their half-sibling's existence.   Similarly since the defendant Skyped (or FaceTimed) often with his Russian girlfriend while home with the rest of the family, and because Maria is freely referred to in his social networking site, Ms. McKean is concerned the children have become aware of the woman's existence as it relates to their father.   The defendant is confident that none of this has occurred.   It remains, however, an important issue to both parents that these children learn of the existence of their father's other child in Russia at an appropriate time and in an emotionally and psychologically sound and supportive manner.

The fact that both of the parents can coexist under the same roof with their shared yet unspoken knowledge is bewildering.   At the same time, the fact that they can and still shield their children entirely from it all is a testament to the priority they have both placed on their children's emotional health.

The central dispute of the parties is over legal custody.   Since the parties do not agree to joint custody the presumption that it is in the best interests of the children does not apply.  Gen.Stat. § 46b–56a(b).  The plaintiff seeks sole custody, though she agrees to consult with the defendant before making her decision on any issue.   Her reasons for this are that she has great anxiety when she speaks with the defendant and feels as a result that she needs to yield to his wishes.   As she said it in testimony, he tells her “no, no, no.”   The plaintiff points out that she has been a wise decision-maker for the children, and it is one of the reasons they are flourishing.   She is emphatic that she will continue to foster the children's relationship with their father.   It is to protect her own emotional well-being that she seeks the order of sole custody rather than joint custody.   Further, because the parties have such difficulties communicating, she feels that it will not be feasible for the next fourteen years to operate under a plan of joint custody for decision-making.   The defendant acknowledges that communication is not easy but points to several instances that the parties have reached an agreement on issues pendente lite.   Further, he is concerned that if he does not have joint legal custody, his role as a father might become marginalized over time.   His concern was echoed by both the family relations officer and the guardian ad litem in their testimony.   The plaintiff has included him in all important decisions to date, even at the most difficult emotional times in this action.   There is no evidence before this court, however, that the plaintiff would so marginalize him.   However, the concern is not that she would intentionally do so, but given her avoidance of the father—her refusal to ‘engage’ with him and her distrust and sense of betrayal, the family relations officer and the guardian ad litem are concerned that her feelings will leak into her way of (a) dealing with the defendant, and (b) the way she portrays the defendant with their children.

Finally, the defendant has suggested that the court order the parties attend parenting counseling to learn to better communicate for decision-making.   This recommendation has also been made to the court by the family relations officer and the guardian ad litem.   The plaintiff resists this notion, seeing it (as her attorney stated in closing argument) as a life sentence of dealing with her anxiousness around the defendant.

While the plaintiff requests an order of sole legal custody, in her claims for relief, she requests that the court order the parties equally split the payment of extra-curricular activities for the children that they as parents agree on.   This contemplates a continuous level of interaction, communication and need to reach agreement for the benefit of the children.   It is anomalous that the plaintiff requests an order of joint decision-making for this aspect of parenting but not for other aspects.  General Statutes § 46b–56(b) directs the court to enter custody orders “that serve the best interests of the child and provide the child with active and consistent involvement of both parents commensurate with their abilities and interests.”   That statute goes on to enumerate sixteen factors for the court to consider in making a custody order.²

The parties agreed to a court ordered psychological evaluation which was accomplished by Howard Krieger, Ph.D. After the completion of that evaluation, the defendant sought, and the court ordered over the plaintiff's objection, that another evaluation be done, this time by the Family Relations Office.   Thereafter, a full custody evaluation was performed by Aaron Dzamko of Family Relations.   Mr. Dzamko testified at trial, after a full and comprehensive investigation was accomplished by him.   It included interviews with both parents alone, together, and with their children, communication with Dr. Krieger, both parties' therapists and other collateral contacts, including the children's school and pediatrician.   Mr. Dzamko concluded that both of these parents are good with their children, love them very much and are appropriate custodians.   The court concurs with those findings.

One matter of significant concern for him is that the children still do not know of their sibling.   Notably, the children's pediatrician is very concerned that the children had not been told of the impending separation and had no therapy for support when they were told.   The children are in therapy now.

As indicated above, the family relations evaluator recommended that the court order joint legal custody and order parenting counseling to assist the parties in improving their communication.

The guardian ad litem, Leslie Raider also testified.   She had been involved in the matter since June 1, 2012.   Her fees for her work were billed at the rate of $150.00 per hour.   Through trial her fees were $9,175.00.³  They are approved.   She observed both parents and confirmed that they are each excellent custodians of their children in the day to day care of them and that the children are thriving.   Her persistent concern is the way in which the parents relate to each other.   Because the parents have been so effective in shielding the children from their own hard feelings, the guardian is hopeful that the parties can repair their communication deficits.   She also recommends that, as a part of a joint legal custody order, the court order a parenting counselor to assist the parties in communication.   Additionally, she is very concerned about the effect on both children and their relationship with each of their parents, but particularly their father, if they learn inadvertently of the existence of a half-sibling in Russia.   She is also concerned that if they are not told in a mindful, supported way, they may hear differing versions and have their questions answered differently.   Ultimately, given the fact that this is a child of their father's born and kept secreted, the guardian is concerned that it may result in a poor relationship between the children with their father, if not handled well.   Notwithstanding his poor judgment as an adult, he remains an active, interested and good father to the two children here and that relationship must be supported.

The plaintiff's sense of mistrust of the defendant about everything, and her sense of betrayal resulted in the loss of any ability to continue meaningful in person communication with him.   The plaintiff explained that her therapist told her not to ‘engage’ with the defendant, as a strategy to handle her own feelings.   This strategy may have worked well for her own coping on a daily basis, but it has not worked well to help her process past these adult issues so that she and the defendant can communicate about the children.

The court concludes that these two parents should both be involved in meaningful decision-making for their two children.   They must learn to communicate better and in a healthy manner.   Neither is overbearing with unkind language.   Until that communication can grow verbally, both parents have effectively used emails for communication over events and decisions regarding their children.   While it is not an optimum manner of communication, it will suffice until the parties progress in their communication in person.   First, the plaintiff must harness her anxiety and anger, and, the defendant must overcome his passive aggressive avoidance (behaviors and emotions the court has observed in each).

The parties own a marital home which is worth $425,000.   It is encumbered by a $405,847 mortgage as reflected on both financial affidavits at the time of trial.   The mortgage payment is presently $3,561.76 per month, which is not affordable for the parties.   The defendant has sought the plaintiff's cooperation in refinancing the mortgage so that the current 6% interest rate would be reduced and the payments become more affordable.   She has resisted this.   Unless the property increases in value substantially, there will be insufficient equity for the parties to qualify for a refinanced loan.   Both parties agree that the plaintiff should be the owner of the home so that she can, hopefully, reside in it with the children.

The defendant is the owner of a 2011 Nissan Juke with little or no equity.   He took the loan for this and bought it during the pendency of the action, without consulting with the plaintiff.   This is a violation of the automatic orders.   He has gained no advantage from this conduct, however.   The plaintiff drives the parties' jointly owned Ford Explorer which is worth $7,750.

The defendant owns AIR, Inc. It appears that it has no substantial value independent from the good will of the defendant's services.   The DVDs that are sold have independent, recurring value but nothing was provided to the court to value it.   Given the expenses and liabilities of the company, it is clear both parties concluded that the real value in the company is in the defendant's personal services.   Accordingly, the court makes no finding of value as to the company.

The plaintiff has bank accounts totaling about $900 except for her savings account.   That account has a balance of $10,904.   Those funds were provided to her by the defendant pursuant to a January 11, 2013 stipulated order to cover ongoing costs and expenses of hers as defined in that order.

The plaintiff has four different retirement vehicles:  her Fidelity IRA from her parents, referenced above has a value of $113,368, her CBS 401k has a value of $91,424, her McKinsey 401k earned during the marriage has a value of $318,456 and her McKinsey Supplemental Retirement Plan which (while not reduced to a present value for the court) will pay the plaintiff $445.33 per month starting at age sixty.

The plaintiff has gifts of $5,000 in savings bonds from her mother, as well as household furnishings, jewelry and personal effects, as shown on her financial affidavit.   The parties have agreed that the plaintiff will keep the household furnishings as hers solely with the exception of the items that the defendant has submitted requests for at the trial of this matter.

The plaintiff's indebtedness all arises out of these proceedings.   She has borrowed $34,100 from her mother for legal fees and $900 from a friend to cover the cost of piano lessons for the children.   She owes her attorney $28,419.37 as of the end of the trial of this matter.

The defendant's personal bank accounts have negligible value except for the proceeds of a $50,000 loan he took against his AIR, Inc., retirement during the trial to pay certain indebtedness detailed below.   His business accounts total about $10,000 but the accounts payable exceed those sums.   The defendant owes $8,123 for 2011 federal taxes and $10,022 for 2012 federal and state income taxes.   He also has not yet funded his 2011 ($7,500) and 2012 ($5,500) contributions to his 401k.   If he fails to do this, ultimately he will have additional tax liability.   If he had funded them in a timely manner, his 401k balance would be $13,000 richer in principal.

The defendant has borrowed $25,000 during this litigation from his parents:  $20,000 satisfied his court-ordered obligation to the plaintiff in January 2013 and the balance was for to arrange his rental home.   His personal credit card balance is $2,052.   He owes $400 for his therapist.   Mr. McKean also has indebtedness on other credit cards:  $8,691 on a maxed out joint card and $14,457 on a card used largely to pay legal fees in this proceeding.   The $50,000 401k loan taken was to pay his attorney fees of $30,585 and the balance will be used to pay these high interest credit card balances.   The defendant's business debts are also listed on his financial affidavit:  $4378 in credit card debt and $9808 to an individual photographer.   The accounts receivable of the company are about $20,000.   The defendant is also entitled to 10 percent of the revenues of the film he made in Russia.   The film, Colossus, is apparently of dubious value;  the film is not mainstream and it has no distributor.   The defendant has offered the plaintiff half of those revenues that he receives.

The defendant has a Roth IRA with a value of $4,192 and a 401k of $307,000 (against which he has the $50,000 loan).

The defendant is the custodian of the children's CHET accounts and New York § 529 accounts, as well as a small savings account for each.   The plaintiff would like the court to order her the custodian of the children's funds.   The CHET fund is a Connecticut § 529 account.   These accounts belong to the father as custodian and therefore are transferable by the court.   It was the intent of the parties that these account funds be used for the college education of the two children.   Accordingly, the parties differ on whether the court should retain jurisdiction over an educational support order for the children.   The court has considered the accumulation and maintenance of these accounts, and that both parties attended college.   The court infers and finds that the parties wanted their children to go to college and by saving and providing for them now, were intending on providing for their post-majority education to the extent of their respective financial abilities.

The plaintiff also has two accounts listed in the children's names with $2,185 in each.

The plaintiff has not sought employment throughout these proceedings.   She has not even prepared her resume.   She will need to work.   The income of the defendant alone will not sustain separate households as they are now constituted.   The plaintiff believes that her keyboarding skills are very basic.   However, until just three years ago, she was able to function competently at her employment with McKinsey.   Therefore, her time out of the marketplace may not be so prejudicial as to preclude her employment.

Full-time employment alone will not, in any case be sufficient to meet the plaintiff's needs.   She is in need of alimony for her own support.   The defendant's income is insufficient to fund both parties' households in any fashion near the economic level at which the parties have lived.   The alimony orders recognize the need for the plaintiff to work notwithstanding the order.   Therefore, it is contemplated in these orders that the plaintiff must have a safe harbor from a downward modification for the first portion of her income once she does seek and find employment.   Employment is necessary for her support to supplement the order of alimony.   Similarly, the amount of alimony that will be ordered will strap the defendant financially such that he deserves a similar safe harbor to meet his own needs after the payment of alimony.

The increasing indebtedness of the parties must cease before all of their assets are eroded.   The amount of money that has been expended in this case on litigation is tragic given the narrowness of the parties' disputes.

While the court has carefully considered all of the statutory criteria for the award of alimony, the defendant's responsibility for the breakdown of the marriage is disproportionate to the plaintiff's and is reflected in the amount and duration of the alimony order.   Whatever difficulties the parties were having had not broken the marriage alone.   The parties were sending amicable and even affectionate salutations by email at a time the defendant now states the marriage was already broken.   The defendant was very aware of the intensity of the plaintiff in her approach to life:  the concreteness of her thought, the drive that is imbedded in her and is so obvious in her demeanor, speech and values as gleaned from her testimony.   The defendant's sense of his own needs and at such an important time as the early upbringing of these young twins is what drove him to his affair and fathering of a child.   This is what ultimately broke the marriage to the point of no repair.

Both of these parties are very hard workers providing for their family.   These orders are not meant to diminish the recognition of that.

The defendant works long hours.   He is committed to his work and to being a provider for his family.   The defendant's income, as a self-employed individual, is not the same each year.   Further, a large amount of it is received in the last half of the year, much of it in the last quarter of each calendar year.   The defendant's 2010 adjusted gross income was $145,279;  in 2011 it was $149,540.   His business, AIR, Inc. is a subchapter S corporation.   The corporation's 1120S federal tax returns for 2010–2012 never reflect more than $17,000 annual depreciation;  it does not appear from the ledgers in evidence that the defendant funneled personal expenses through the business without his father (bookkeeper) later grossing them up into his income.   Therefore, his true income is accurate based on the evidence presented.   These findings are consistent with the profit and loss statements put in evidence as well.   The court bases the child support and alimony orders in this case based upon the income disclosed on his financial affidavit of $2,154.78 per week gross and $1,962.00 per week net.   Further, supplemental orders are provided for based upon the income ultimately recorded to him for each calendar year once the corporate books are settled for the tax (calendar) year.

While the plaintiff must find a source of income, there is no basis upon which this court can presently impute earnings to her.   Accordingly, the orders reflect the need for her to report her earnings once employment is attained.

The court orders:

1. Dissolution of the marriage.

2. Joint legal custody

a.  The parties shall consult with each other on all substantial questions relating to the religious upbringing, education, health care, and social upbringing on both minor children.   That consultation shall be by conversation and/or email.

b. The parties shall jointly select a co-parenting counselor to assist them in determining the manner in which the children shall be informed of their sibling.   The counselor may consult with the children's therapist as determined necessary.   The selection of this counselor, who shall work in Connecticut, shall occur within fourteen days;  the counselor shall be a Ph.D. level counselor.   The guardian ad litem shall assist the parties in the selection of this counselor.   Thereafter, the guardian ad litem is discharged from her obligations in this case.   The parties shall meet with the counselor no less frequently than weekly until the children have been so informed.   Thereafter, the parties shall meet with the counselor for a period of four months to smooth the transition into joint legal decision-making after this event has occurred.   The cost of this counseling shall be shared by the parties as follows 80 percent paid by the defendant and 20 percent paid by the plaintiff.   The court finds this counseling is necessary to serve the best interests of these two children for the reasons stated herein.  (General Statute 46b–56(i).)

3. The stipulation entered into by the parties as to the parenting access plan (having been found to be in the best interest of both children) is made orders herein and attached hereto as Schedule A. Neither party shall permanently move their residence more than twenty miles, “as the crow flies,” from the other parent's respective residence without providing ninety days' notice of the impending move to the other parent.

4. The defendant shall pay the plaintiff child support in the amount of $418.00 per week, which is in compliance with the presumptive child support under the Guidelines.

5. The defendant shall pay 79 percent and the plaintiff 21 percent of the health expenditures of the minor children that are not paid by insurance.   Health expenditures shall be broadly construed to include but not be limited to co-pays and deductibles for medical, dental, eye care, eyeglasses and contact lenses, orthodontic, mental health, hospitalization, prescription medications and medical devices, so long as the providers are within the insurer's network.

6. Both parties shall provide medical and dental insurance for the benefit of their minor children as available to them at a reasonable cost defined as no more than 5 percent of their respective net weekly income, and the parties shall share all unreimbursed medical and dental expenses of the minor children in accordance with the guidelines (as referenced above).   If health insurance is unavailable to either party as defined above, the parties shall maintain HUSKY health insurance for the minor children.

7. The defendant shall pay alimony to the plaintiff at the rate of $750 per week for the earlier of ten years from the date of this order, the death of either party or remarriage of the plaintiff.   The statutory provisions regarding modifiability of alimony upon cohabitation apply.   This alimony order is non-modifiable as to duration.

8. As additional alimony, the defendant shall pay to the plaintiff 50 percent of all gross receipts from the Colossus movie, after repayment to the defendant of the outstanding obligation from D. Sykes.   This alimony order shall sooner terminate upon the death of either party.

9. The plaintiff may earn $45,000 per year gross on an annualized basis before her employment income shall constitute a substantial change of circumstances for purposes of modification of the alimony order in Paragraph 7.

10. The defendant may earn an additional $30,000 per year gross on an annualized basis before his employment income shall constitute a substantial change of circumstances for purposes of modification of the alimony order in Paragraph 7. The revenues he receives from the Colossus movie shall not be considered in this alimony order since it has already been considered in the orders in Paragraph 8.

11. The defendant shall continue to hold the plaintiff harmless on the 2011 federal joint tax return as was ordered by the court on October 11, 2012, and, the 2012 joint returns.

12. The parties shall exchange W–2s, 1099s and K–1s for employment, annually by February 15, so long as there is an alimony or child support obligation.

13. For so long as the defendant has a child support obligation for the children, the defendant shall designate the plaintiff as beneficiary of $750,000 life insurance policy on his life.   He shall provide proof of said coverage, as long as it is required, by January 31 of each year.

14. Upon the plaintiff securing employment she shall, so long as the children are minors, designate the husband, for the benefit of the minor children, as the irrevocable beneficiary of $100,000 life insurance on her life.   She shall provide proof of said coverage, as long as it is required, by January 31 of each year.

15. The defendant shall indemnify and hold the plaintiff harmless on all debts on his financial affidavit.

16. The plaintiff shall indemnify and hold the defendant harmless on all debts on her financial affidavit.

17. The parties shall each pay one-half of the guardian ad litem fee, $4,587.50 each, within ninety days.   This obligation is in the nature of support for the children and therefore not intended to be dischargeable in bankruptcy.

18. The defendant shall transfer to the plaintiff all of his right, title and interest in and to the real estate at 333 Bennefts Farm Road, Ridgefield, Connecticut.   The plaintiff shall pay the mortgage, taxes, homeowner's insurance and utilities on said property and indemnify and hold the defendant harmless on the same.   If the plaintiff chooses to refinance the mortgage in the next two years, the defendant shall co-operate with the refinance of the mortgage (including signing on for a new mortgage in lieu of the existing mortgage) so long as it results in lower monthly payments reducing the payments by at least $200.00 per month.   This obligation of the defendant extinguishes after two years.   If the plaintiff lets the mortgage fall more than two months in arrears, over the life of the mortgage (so long as the defendant is cosigned on it), and the defendant is current in his child support and alimony obligations for the period of time that she falls in arrears, it is further ordered that the home shall be sold;  the court retains jurisdiction over the listing and sales price if the parties cannot agree on the same.

19. The defendant shall be the sole owner of his business Alpha India Romeo, Inc., free and clear of any claim of the plaintiff.   He shall indemnify her and hold her harmless on all business debts.

20. The plaintiff shall be the sole owner of the 2006 Ford Explorer free and clear of any claim of the defendant, and she shall indemnify and hold him harmless regarding the vehicle.   The defendant shall be the sole owner of the 2011 Nissan Juke free and clear of any claim of the plaintiff, and he shall indemnify and hold her harmless regarding the vehicle and the loan secured by the vehicle.

21. Each party shall retain the property in their respective control.   The plaintiff shall, within four months, be entitled to copy any and all family photographs or videos in the possession of the defendant at her cost.

22. The plaintiff shall be the sole owner of all of the bank accounts shown on her financial affidavit, including the $10,904.44 that is in her account remaining from the January 11, 2013 pendente lite order.

23. The defendant shall be the sole owner of all of the bank accounts on his financial affidavit free and clear of any claim of the plaintiff.

24. The plaintiff is the sole owner of her Fidelity IRA, CBS 401k, McKinsey 401k and McKinsey Supplemental Retirement Plan free and clear of any claim of the defendant.

25. The defendant is the sole owner of his Pershing Advisor 401k and Fidelity Roth IRA free and clear of any claim of the plaintiff.

26. The defendant shall remain the custodian of the CHET accounts for Ethan and Isabel.   The defendant shall transfer custodianship to the plaintiff of the New York § 529 accounts for Ethan and Isabel within thirty days.   The parties shall utilize all of the funds of these accounts only for the post-majority education of their children as it was intended, unless they agree in a signed writing otherwise.   Each parent shall name the other as the contingent custodian of these accounts in the event that s/he is unable or unwilling to serve as custodian.   Each parent shall provide the other with an annual accounting (with copy of account statement) of the status of the account funds on January 31 of each year.

27. The defendant shall retain the children's savings accounts in his possession for their benefit and the plaintiff shall retain the children's accounts in her possession for their benefit.   Each parent shall name the other as the contingent custodian of these accounts in the event that s/he is unable or unwilling to serve as custodian.   Each parent shall provide the other with an annual accounting (with copy of account statement) of the status of the account funds on January 31 of each year.

28. Pursuant to Gen.Stat. § 46b–56c, the court shall retain jurisdiction over the entry of an educational support order for each children.

29. Each party shall pay their own attorneys fees.

30. Each party shall be entitled to claim one child as a dependent for all tax reporting purposes.

By the court,

Munro, J.

SCHEDULE A

PARTIAL STIPULATION RE PARENTAL ACCESS SCHEDULE

The parents agree that their two minor children Ethan and Isabel McKean shall primarily reside with their mother.   The parents further agree that the children's contact with their father shall be reasonable, liberal and flexible and shall occur in accordance with the following schedule:

1. Alternate weekends from Friday at 5:00 p.m. until Sunday at 6:00 p.m. (The father's weekend was April 12th through 14th, 2013 as the starting point of reference.)

2. Each Wednesday from after school until 5:00 p.m. At present, the children have therapy appointments on Wednesdays at 5:00 p.m. The father shall bring the children to this appointment and the mother shall pick up the children from the appointment.   Each parent shall make himself or herself available to the therapist as is requested by the treating professional.   The mother shall arrive at the therapist's office no later than 5:30 p.m. unless otherwise instructed by the therapist.   Should the time or day of week of the children's therapy appointment be changed, the father's contact time with the children shall be modified to Wednesday after school (3:30 p.m. if school is not in session) until 7:30 p.m.

3. Alternate Mondays following the weekend the children spend with their mother from after school (or 3:30 p.m. if school is not in session) until 7:30 p.m. shall be spent with the father.

4. Minor Monday holidays (Martin Luther King's Day, President's Day Memorial Day, Labor Day and Columbus Day) shall alternate with the children spending time with their father in odd numbered years on Martin Luther King's Day, Memorial Day and Columbus Day. In even numbered years, the children shall be with their father on President's Day and Labor Day. In odd numbered years the children shall be with their mother on President's Day and Labor Day and in even numbered years the children shall be with their mother on Martin Luther King's Day, Memorial Day and Columbus Day. If the holiday coincides with the alternate weekend schedule, the day shall attach to the weekend.   If the holiday does not coincide with the alternate weekend schedule, then the children shall be with the parent scheduled for the holiday from 6:00 p.m. on Sunday until 6:00 p.m. on Monday.   If it is the mother's scheduled weekend, there shall be no Monday contact with the father.

5. Each Father's Day shall be spent with the father and each Mother's Day with the mother.   If the day falls on the other parent's alternate weekend, the children shall be exchanged at 6:00 p.m. on Saturday.   On Father's Day the children shall return to their mother's care at 6:00 p.m. on Sunday.

6. Each parent shall be entitled to effectuate two hours of contact with the children on June 22nd (the children's birthday) if he or she is not scheduled to see the children on that day.

7. Thanksgiving in odd numbered years from after school on Wednesday until Thursday at 7:30 p.m. with the father.   In even numbered years the children shall spend this time with their mother.

8. In even numbered years, the children shall spend from the close of school for the December school recess until noon on December 25th with their father.   In odd numbered years the children shall spend this time with their mother.

9. In odd numbered years, the children shall spend from December 25th at noon with their father until 6:00 p.m. on the night before school resumes with their father.   In even numbered years, the children shall spend this time with their mother.

10. Each parent shall be entitled to effectuate three weeks (twenty-one days measured in seven day blocks of time) of vacation time with the children per calendar year.   Two weeks may be taken consecutively during the summer school recess.   The third week may be taken during the spring school recess or during the summer.   Vacation time shall be contingent upon at least sixty days written notice to the other parent.   In odd numbered years, the father shall have preference as to his first two weeks of vacation;  then the mother shall have preference for her three weeks of vacation, with the father then choosing his third week.   In even numbered years, the mother shall have first preference.

11. Each parent shall provide the other with a full written itinerary no later than two weeks prior to any vacation with the children, including destination, lodging, telephone access numbers to enable contact with the children and contact from the non-traveling parent to the traveling parent and departure and return times, mode of transportation as well as carrier names, flight numbers, airport locations, etc.

12. Any out of the country travel requiring passports must be agreed to between the parents in writing until the children attain the age of twelve (12) years.

13. Prior to choosing vacation times and no later than May 1st of each year, the parents shall consult with one another as to the schedule of activities and/or summer camp programs available for the children.   Vacation plans shall be made in accordance with any such mutually agreed to in writing summer arrangements.

14. Holidays and special occasion days shall take priority over vacation and the regular schedule.   Neither parent shall schedule vacation time during times when the children are scheduled to be with the other parent for a holiday or to include the children's birthday.

The father shall transport the children at the beginning of his contact, either picking the children up at the mother's residence or at school.   The mother shall transport the children at the conclusion of their time with their father picking the children up at the father's residence, the children's therapist's office, or at a mutually agreed to location.

Each parent shall have reasonable access to the children while they are with the other parent, including access by telephone and email or by text during reasonable hours of the day.

Both parents may attend any and all special public events involving the children such as school functions, sporting activities, recitals, etc. as is allowed by the organization sponsoring the event.   If a limited number of tickets are available to such events, the parents and the two minor children shall have first option to attend.

The parents recognize that this schedule may need to be adjusted to accommodate the children's schedule of activities, school events, and/or the father's need to travel due to his work commitments.   The father shall notify the mother in writing (email) as soon as he knows of any work-related or other travel plans resulting in his inability to take the children for his parenting time.   There shall be no automatic right to make up any time the father misses as a result of such travel.

Each parent shall notify the other parent in writing (email) in advance if he or she intends to have the children away from that parent's primary residence for any overnight stays and shall provide the other parent with the location of the children and a telephone number to enable access to the children.

The parents do not agree to the following issues relevant to the children:

1. Joint vs. sole custody

2. Engaging a parent coordinator

3. The conditions outlined in sections 1.13, 1.14, and 1.18 of the defendant husband's proposed orders and Article 2C last paragraph of plaintiff wife's proposed orders.

FOOTNOTES

FN1. Thereafter, the plaintiff alone treated with her until the end of September 2011.   She then stopped treating with her when she became aware that the defendant was going to start treating with her.   Almost all of these therapy appointments were over the telephone..  FN1. Thereafter, the plaintiff alone treated with her until the end of September 2011.   She then stopped treating with her when she became aware that the defendant was going to start treating with her.   Almost all of these therapy appointments were over the telephone.

FN2. § 46b–56(c) In making or modifying any order as provided in subsections (a) and (b) of this section, the court shall consider the best interests of the child, and in doing so may consider, but shall not be limited to, one or more of the following factors:  (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.   The court is not required to assign any weight to any of the factors that it considers..  FN2. § 46b–56(c) In making or modifying any order as provided in subsections (a) and (b) of this section, the court shall consider the best interests of the child, and in doing so may consider, but shall not be limited to, one or more of the following factors:  (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.   The court is not required to assign any weight to any of the factors that it considers.

FN3. She testified that her fees charged were $8,125 through the second to last day of trial and then 7 hours on the last day of trial..  FN3. She testified that her fees charged were $8,125 through the second to last day of trial and then 7 hours on the last day of trial.

Munro, Lynda B., J.