Charles Nedder v. Marla Nedder (2013)

MEMORANDUM OF DECISION

This dissolution of marriage case was commenced in August of 2010 with a return date of September 21, 2010.   The defendant had taken the child and moved to her parent's home in July. The matter was the subject of a long pendente lite hearing relating to the plaintiff's access to the minor child.   The hearing which had begun in December of 2011 was not completed until mid-March of 2012.   It was referred to the Regional Family Trial Docket shortly thereafter.   The trial began on March 12, 2013 and, after seven days of testimony, was continued to April 8, 2013 for additional hearing dates once it was determined that the original estimated trial length would be inadequate to complete the matter.   The entire trial lasted for nine (9) days and ended on April 9, 2013.

The parties were married in the summer of 2007 and their only child, a daughter, was born in December of the following year.   The plaintiff is a real estate agent working with Coldwell Banker in the Greenwich office.   He has been there since 2010, but has been an agent since 2003.   Prior to that he had worked in the family retail clothing business.   He is forty-five (45) years old and without any significant health issues.

The defendant is thirty-eight (38) years of age.   She too is a licensed real estate agent working out of the Greenwich office of Coldwell Banker, but according to her testimony, her status is currently only as to referrals.   That means that she can earn a commission for referring a client to the office, but she is not actively working as an agent.   According to her testimony her actual experience selling real estate is quite limited.   She said that she had obtained her license to assist herself in her own real estate transactions and that she helped the plaintiff in his work;  she indicated that she had only handled a few actual transactions on her own since starting as an agent in late 2005 or very early in 2006.   Her other employment experiences include working as a trader for a financial planning company, a manager of a retail clothing business, the owner of her own retail gift shop, the manager of the Greenwich Rowing Club and a personal assistant to a family in Rye, New York. She has not worked since having her child except for the last few months, when she started working part-time for a local company assisting the controller of that business.   She grosses an average of $1,000 per month.   She has no significant health issues.

The parties separated, as was indicated above, in July 2010.   At first the plaintiff remained in the marital home, but he vacated and the defendant returned to the house with the minor child in December 2010.   The plaintiff has lived with his parents since that time.   The marital home is located at 3 Long Meadow Lane in the Riverside area of Greenwich, Connecticut.   That property was purchased in 2004 by the defendant and her parents, Jerry and Rita Leamon.   Shortly before the marriage of the parties, the defendant and her parents entered into a written agreement spelling out the details of their arrangement relative to the real property.   The defendant, according to that agreement, has a 40 percent interest in the property and each parent has a 30 percent share.   The agreement also contains provisions making the sale of a partner's interest to a third-party virtually impossible, as is common in a closely held, family business deal.

The major dispute in this case centers around the plaintiff's competency to parent his child.   It is most unusual but, since the defendant vacated the marital home in July 2010, he has had no overnight parenting time at all with the now four-year-old girl.   There have been significant periods of no access—or extremely restricted access—over the now almost three years since the parties separated.¹  It is the court's determination as to whether or not such a restricted schedule was appropriate and should be continued has driven and has extended the dispute.

Interestingly, both parties attribute the breakdown of the marriage to events that began during the defendant's pregnancy.   Prior to that, they describe their short time as a married couple as being quite good.   Both accuse the other of changing during the pregnancy and becoming “strange.”   The plaintiff described the defendant as valuing him as an increasingly lesser member of the couple as her pregnancy progressed.   He testified that early on he went to all of her prenatal appointments, but later on she said she preferred to go alone.   He claims that she took the baby home from the hospital with her mother, and not him, at her insistence.   Also that she claimed the primary parental role as the mother and the breast-feeder of the child, making him even promise not to read any parenting books.   It was his understanding when he agreed to refrain from reading the popular parental advice books that they would discuss child-rearing decisions together, but that never came about.   The defendant would make decisions and he was to follow her lead.   He admits that he did.

The defendant agrees that the relationship changed during the pregnancy, but she sees the plaintiff as the one who changed.   She testified that he became extremely anxious and had difficulty sleeping.   According to her, he feared he was having a heart attack and spent a great deal of time worrying about his mother, since her former business had closed.   She believed that he gave up quickly on the marriage as soon as there was difficulty in the relationship.   From her perspective, the plaintiff never assumed a significant parental role with their daughter;  from his perspective, he did despite her efforts to marginalize his role.

As difficult as it might be to know what led to the separation, there is a good deal of evidence regarding the parental roles once it had occurred.   It is very clear that the defendant did not view the plaintiff as a competent parent.   Additionally, she questioned the child's safety when in his care generally, and most specifically when the paternal grandmother was involved.   For the period of time before the return date, the defendant essentially denied the plaintiff access to their child.   He claims he saw the child only twice in about six (6) weeks, and she says it was more like every four (4) weeks.   Regardless of which party is testifying, however, the essence of the evidence is that whatever access he had was very limited and restricted.

A year after the parties separated there were allegations of inappropriate touching made against the plaintiff and his mother.   For example, the defendant alleged that the child, then about two and one-half years old, had scratches on her body from her pubis to over her hips after she returned from a daytime access with her father.   Further, she claimed that the child said the injury was done by the paternal grandmother and the father.   The maternal grandmother, who was called to the home to witness the injury, also testified that the child said she was hurt by the father and his mother.   The child's pediatrician, who examined the child a few hours later, could find no evidence of scratches.   Nevertheless, the parties agreed to hire Linda Smith, Ph.D., to perform a risk assessment, and that such an assessment would not be limited just to the single allegation.

Smith's report was done in August 2011, and was dated September 9, 2011.   She found that she could not confirm any abuse of any kind.   In her report and in her testimony during the trial, she discussed the protocol she followed in performing her assessment.   She did find that the minor child was at risk, but not from the father or his mother.   She testified that the risk to this child emanated from the defendant's attitude about the plaintiff as a parent.   Smith was concerned that the defendant did not appreciate that the child's father was needed and that the mother and her parents could not meet all of her daughter's needs.   The mother had, in Smith's opinion, an agenda independent of any allegations made by the child.   She did not believe that the mother truly believed the allegations.   She opined that a significant co-parenting deficit was a risk for the child and a negative for her healthy development.

One of the collateral sources Smith used in her assessment was the co-parenting sessions the parties had with David Israel, Ph.D. Although those sessions were eventually terminated, Israel had worked with the parties for a period of time and had the opportunity of observing their relationship and their interaction.   He observed that the defendant would fill in the details of a perceived negative comment by the child about her time with the father with what he termed, “a fantasy of specifics.”   The mother was, in his opinion, overprotective and very controlling.   As is often the case in such conflicts, the father was not without blame either.   His reaction to her was simply to become increasingly more passive-aggressive, and frequently just not reply to her.

Throughout the pendency of the case, there were more allegations of inappropriate behavior by the father and/or the paternal grandmother.   A second such allegation was made in June of 2012, a third was made in January of 2013 ² and a final report, not previously mentioned, was disclosed in the mother's testimony at trial.   This last incident is alleged to have taken place less than two weeks before the scheduled start of this trial.   All of the allegations share common elements.   They are all reported verbally to the mother immediately following the child's return to the mother after parenting time with the father, and they all involve him or his mother allegedly touching the child's genitals.   The variations to the reports may include the adults being naked with the child or the paternal grandmother hurting the child.

There is no doubt that the child has made such reports.   The mother is very credible in her testimony, as was her mother, who heard the child make some of the reports.   The child repeated the comments to her pediatrician and to a third party brought into the mother's home for the sole purpose of confirming the child's comments.   These reports were made by the child first when she was about two and a half years old.   The most recent comments were made by her at age four.   It is significant to note that no one involved with this family ever reported any of the alleged behavior to the Department of Children and Families, despite the fact that many of the professionals involved were mandated reporters under our law.   Elizabeth Krowitz of Greenwich Pediatric Associates, LLC, is the child's pediatrician.   The child was brought to her within hours of the first report, which also included an allegation of three parallel scratches on both sides of the child's lower abdomen.   The doctor did not find any evidence of the scratches and, although she heard the child repeat the allegations, did not believe a report was required.   Likewise, she did not feel it was appropriate to make a report of the allegations brought to her regarding the parenting time in June 2012.   The minor child is in therapy with Pauline Jordan, Ph.D., since November of 2011, and she was made aware of the allegations raised by the mother as well.   Jordan did not file any reports although she too is a mandated reporter.   Israel also made no such reports.

It is not the impression of the court that the mother's actions have been malicious.   She cannot, however, accept the fact that the plaintiff is a perfectly adequate parent despite all the evidence presented to her by the objective experts in the case.   Every evaluator that has observed his interaction with his daughter has found it to be appropriate and loving.   The child enjoys the time she spends with her father and has never demonstrated any fear or apprehension of being with him.   The fact that she may be stressed over the exchanges between the parents is hardly surprising or abnormal.   It is clear from the testimony of the defendant, her father, her mother and Richard Murphy, that this little girl is questioned when she returns from time with her father.   Everyone claims to be very natural about their inquiries to the child, but one can only imagine the impact on this very young girl as a result of these sessions.   Murphy is a business acquaintance of the maternal grandfather who agreed to be a “human tape recorder,” and note the child's statements when she returned home from her dad.   This went on for six (6) months and, according to his testimony, he was present for about 80 percent of the return exchanges.   At first, he and the grandfather were simply in another room out of sight of the child, but it quickly progressed to being in the room with her and her mother.   This only stopped when the court evaluator's report was issued and criticized this behavior.

The defendant and her parents can see no good in the plaintiff.   One incident related by the maternal grandfather during his testimony demonstrates this attitude well.   The couple and the grandparents were day-sailing on a catamaran, off a beach in the Cayman Islands.   It was a clear day with calm water, but the boat capsized while the grandfather was at the helm.   The plaintiff is an experienced sailor, but the others were not.   The defendant was pregnant at the time and her mother was a nonswimmer, but everyone was wearing appropriate floatation devices.   The grandfather testified that he was shocked when the plaintiff swam after the boat to retrieve it rather than go to the assistance of the women.   He told this story as an example of the poor judgment exhibited by his son-in-law and an event that altered his opinion of the man.   His comment was that the boat was not that valuable and worth at best perhaps $10,000.   When the plaintiff was on the stand, the court asked him what the proper protocol is in a situation such as this incident.   His response was that one would retrieve the boat if possible so that the people in the water would have it to hang on to or even to re-board.   Unless one of the people in the water was in serious trouble, the first task was to secure the boat.   The grandfather admitted when he testified that he was not an experienced sailor at the time of that incident.   The fact that he completely disregarded the plaintiff's actions as being proper is very suggestive of his attitude about the man in general.   Of course, the plaintiff did not help when he simply did not respond to his father-in-law's criticism.

The defendant's response in accepting without question everything this very young child says, without any effort to place her words in a developmental context or attempt to understand an alternative explanation, has prevented her from accepting the plaintiff as a competent parent.   Ronald C. Naso, Ph.D., the court appointed evaluator, wrote in his second evaluation report, dated October 31, 2012:

[w]hen potentially troubling information arises, Ms. Nedder does not seek further data to contextualize it, but rather uses it to support her view that her husband is at best an inadequate parent and, at worst, abusive ․ her behavior with [the child] is alienating [her] from her father.   As noted by Dr. Jordan, she struggles to distinguish behaviors and affects that are developmentally appropriate from those that constitute evidence of abuse.   Despite statements to the contrary, Ms. Nedder wants to marginalize Mr. Nedder's role in [his daughter's] life.   When conflicts arise, she struggles to place her daughter's statements in a developmental context and respond flexibly to the issues raised.   Instead, she is inclined to believe the worst about her husband and mother-in-law, punishing him whenever possible by limiting access to their daughter.

This behavior, as noted by Naso and the other mental health professionals, is clearly the cause for the prolonged litigation of this case which by all indications could have been resolved relatively quickly except for the mother's rigid and inflexible view of the father.   While the cause of the breakdown of the marriage sits on the shoulders of both parties, the excessive time this case has been pending is on hers and hers alone.³

The plaintiff's behavior, especially in the early part of the litigation, was not commendable.   He made some wild and unwise statements which may well have been a result of his anger and frustration over the situation.   That anger and frustration was perhaps understandable, but the behavior was still not helpful to his child and his relationship with the defendant.   Naso noted this behavior in his first evaluation report dated March 30, 2011.   Indeed, the plaintiff's testimony at the very start of this trial left serious questions regarding his credibility in the mind of the court.   He repeatedly claimed lack of memory and evaded answers routinely.   However, the court noted, and the evaluators did as well, that the plaintiff appears to learn from his mistakes and listens to criticism with an open mind.   His behavior with the child and others has improved over time.   His testimony before the court did as well.

The defendant has been unable—or unwilling—to change her behavior as it pertains to the plaintiff and his relationship with their daughter.   Naso testified that she demonstrated no change in behavior between his two evaluation reports, and her testimony at trial also revealed no essential change in her belief that her husband and/or his mother were doing something bad to their daughter.   However, the court accepts the opinion of Attorney Victoria Reich, the guardian ad litem, that the defendant is a good and caring mother and that she will make every effort possible to follow the orders of the court.   There is no doubt that the defendant has been the primary care giver and parent to this young girl and that in most aspects she is a fine and diligent parent.   It is also clear that the plaintiff has, at times, been rather passive in his communication with the mother,⁴ but both parties agree that there have been no major disagreements regarding significant decisions as to the health, welfare and education of the child.   Both parties have requested that they be given the final decision making authority in the event that an agreement cannot be reached.   The defendant argues that she has made most of the decisions historically, while the plaintiff notes that if the authority were given to him, that would force the defendant to take him seriously.   He also notes that they have not disagreed on anything major.   Although the idea seemed strange at first, the more one thinks about it, the more that there is merit to its logic.   It is questionable that this couple will ever be able to co-parent effectively, but it is not out of the question.   Some division of the authority might well help keep some equilibrium to their parental relationship.

In devising its orders, the court must look to the criteria of the various statutes dealing with custody of minor children.  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 the active and consistent involvement of both parents commensurate with their abilities and interests.”   That statute goes on to enumerate sixteen (16) separate factors for the court to consider in devising such orders.   Some of those factors that seem most pertinent to this case would include “the capacity and the disposition of the parents to understand and meet the needs of the child ․ the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent ․ any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute ․ [and] the mental ․ health of all individuals involved ․” General Statutes § 46b–56(c).

The “best interest of the child” standard is the ultimate basis of a court's custody decision.  Knock v. Knock, 224 Conn. 776, 789, 621 A.2d 267 (1993).   The gender of the parents is not considered by the court, and there is no automatic presumption favoring the mother as custodial parent.  Presutti v. Presutti, 181 Conn. 622, 627–28, 436 A.2d 299 (1980);  Hurtado v. Hurtado, 14 Conn.App. 296, 301–02, 541 A.2d 873 (1988).   Either parent can be awarded custody and the issue “is not which parent was the better custodian in the past but which is the better custodian now.”  Yontef v. Yontef, 185 Conn. 275, 283, 440 A.2d 899 (1981).

Public policy, as expressed most clearly in General Statutes § 46b–56a, favors an order of joint legal custody whenever such an order is requested by the parents and would be in the best interests of the child.   Both parties entered the trial requesting a joint legal custody order ⁵ and the court is willing to give them the opportunity to make it work with some clear guidance.   The record must reflect, however, that any continuation of the defendant's alienating behavior will not be tolerated by this or any future court.   Both parents will have to work to make the co-parenting arrangement a success for the benefit of their daughter.   The plaintiff has already demonstrated the ability to change and grow as a parent;  now the defendant will have to do the same if a joint custody arrangement is to be successful.

They also need the tools to support their efforts in that regard.   The court has found the use of internet based parental communication sites, such as “ourfamilywizard.com,” extremely helpful.   Such programs offer tamper-proof communications between the parents that are computer time-stamped both as to when the message is sent and also as to when the message is viewed by the other party.   Third parties, such as the GAL or a co-parenting coordinator, are able to monitor the communications, which often improves the tone and tenor of the messages.   A calendar is available for scheduling the child's activities and it records who put the item on the calendar and when.   Online-shared calendars can help to avoid the pitfalls of parenting from separate households.   Using a shared online calendar can keep both parties informed without the danger of additional, and potentially negative, input.   An information bank keeps both parents up to date as to all providers of service to the child, with contact information as to the teachers, doctors, coaches, etc.   There is even an iPhone app for access to the program when the parents are away from home.

In addition to the web site, the parties will need some professional support and guidance to assist them to learn to work effectively as co-parents for their child.   A co-parenting coordinator or counselor would be a most useful aide to them, and such a person could help them mediate disagreements and attempt to avoid misunderstandings which might arise from poor communication, their personality differences and their extremely different parenting techniques.

The finances of this case are completely upside down.   The defendant has assumed an overwhelming amount of alleged debt during the pendency of this case and the marital home has no value based on the positions adopted by her and her parents.   Jerry and Rita Leamon, the defendant's parents, both testified that they have lent their daughter the necessary funds to maintain her lifestyle throughout the pendente lite period, and to fund her position during the dissolution proceedings.   The loans, which total well over $500,000, are based on a promissory note signed by the defendant which reads, in full, as follows:

For value received, the undersigned, Marla Nedder, promises to pay to Rita and Jerry Leamon such amounts as she might need to borrow in the execution of her divorce.   Amounts to be recorded on attachment A.

Interest will be charged at the rate of 2% per annum.

Repayment to be made from property settlement as a result of the divorce proceeding.

Money given to a party by family members during a dissolution proceeding is almost always suspect.   Whether it is a true loan or a disguised gift is typically the question the court must address in such situations.  “[P]ayments that are made regularly and consistently to one of the former spouses are to be considered by a trial court in setting financial orders.”  Zahringer v. Zahringer, 262 Conn. 360, 369, 815 A.2d 75 (2003).   Contributions from third parties that are gifts may be considered income;  whereas, contributions that are loans are liabilities and are not to be considered.  Id., 365.

During their testimony, both Jerry and Rita Leamon stated that the payments they made to their daughter were loans that they expected to be repaid, although they did not have any specifics about how that might be done.   Jerry Leamon, when asked directly why he continued to give his daughter money as the amount increased, replied that he had, in his mind, no other option and did not want to see his daughter homeless.   There was no expression of any kind that such payments would end or be reduced;  that the parents had reached the limit of their generosity.   Any terms of repayment, he further testified, would be decided after the court rendered its decision.   Rita Leamon testified in a similar vein.   She said that the details of the repayment will be based on the judgment, but that her daughter would repay them “regardless of the outcome of the case.”   The defendant also testified that she intended to repay her parents, although she had no idea how that would be accomplished.   Interestingly, the entire value of the plaintiff's assets, if taken at face value, total $271,000, and even if the court were to award the defendant everything the plaintiff owned, the judgment would not come close to repaying the accumulated debt.  “It is the sole province of the trial court to weigh and interpret the evidence before it and to pass on the credibility of the witnesses ․ It has the advantage of viewing and assessing the demeanor, attitude and credibility of the witnesses and is therefore better equipped than [the Appellate Court] to assess the circumstances surrounding the dissolution action.”  (Emphasis in original;  internal quotation marks omitted.)  Zahringer v. Zahringer, 124 Conn.App. 672, 679–80, 6 A.3d 141 (2010).   The loan cannot be seen as a credible obligation.

General Statutes § 46b–82(a) sets forth the provision pertaining to alimony, which states in relevant part:  “In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b–51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b–81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment.”  (Emphasis added.)   Although the term “shall” denotes that the court is bound to considering certain enumerated factors, courts have emphasized that § 46b–82 neither requires nor prohibits the consideration of other factors.   See Robinson v. Robinson, 187 Conn. 70, 71–72, 444 A.2d 234 (1982).   This is premised on the trial court's broad general equitable powers that effectually allows the trier of fact to evaluate criteria that it deems necessary outside of those specifically enumerated.   See generally Smith v. Smith, 249 Conn. 265, 284–85, 752 A.2d 1023 (1999).

As seen, the statute requires the court to consider the amount and sources of income of each of the parties in making a determination as to alimony.   Bronson v. Bronson, 1 Conn.App. 337, 340, 471 A.2d 977 (1984).   Our appellate courts have “emphasized the importance of using an expansive definition of income when formulating financial orders during the course of marriage dissolution proceedings.”  Bartel v. Bartel, 98 Conn.App. 706, 712, 911 A.2d 1134 (2006), citing Unkelbach v. McNary, 244 Conn. 350, 360, 710 A.2d 717 (1998).   This entails considering both current and future income.   Bronson v. Bronson, supra, 340.   Although not explicitly enumerated, a party's “future income may encompass the receipt of gifts.   See, e.g., Picton v. Picton, 111 Conn.App. 143, 159, 958 A.2d 763 (2008), cert. denied, 290 Conn. 905, 962 A.2d 794 (2009).   Courts have implied that in order to achieve a fair result, it is imperative to focus on whether, and to what extent, the potential funds (i.e., gifts) are truly available.   See, e.g., Brash v. Brash, 20 Conn.App. 609, 613, 569 A.2d 44 (1990).   In light of this notion of fairness, courts have upheld an alimony award that have determined that “regularly and consistently received gifts ․ to the extent that they increase the amount of income available for support purposes,” are a part of net income.  Unkelbach v. McNary, supra, 360–61.   Moreover, the receipt of recurring gifts applies in the income analysis for both parties involved.   In other words, gifts may constitute income for the person potentially in position to receive an award of alimony, as well as the person who may be ordered to pay such an award.   See, e.g., Emery v. Emery, Superior Court, judicial district of Hartford, Docket No. FA 04 0736649 (June 9, 2011, Taylor, J.) (court used receipt of recurring gifts in determining income of party in position of receiving alimony).

Courts have repeatedly underscored the importance of the factors of regularity and consistency when using the receipt of gifts in determining income.   For example, when a significant portion of a party's past income had come from gifts or loans from family members and there was evidence indicating that this could not be viewed as a “consistent and dependable” source of future funds, an alimony award could not properly be based on such funds.  Schmidt v. Schmidt, 180 Conn. 184, 188, 429 A.2d 470 (1980).   Furthermore, in a situation where gifts were sporadic, such as a parent of the party assisting him or her in purchasing a new car or occasionally assisting the party in his or her living expenses, courts have found this to be insufficient in establishing regularity.   See Wujcik v. Wujcik, Superior Court, judicial district of New London, Docket No. FA 98 0114401 (July 24, 2003, Goldberg, J.T.R.).

Moreover, in the context of which gifts are determined to be regular and consistent, parties have often attempted to argue that his or her receipt of gifts is not a guarantee for purposes of evaluating income.   This argument has ultimately been found to be unpersuasive.   Courts have responded that in situations in which the receipt of such gifts may cease in the future, the party may seek modification of the alimony award.   See, e.g., Griffin v. Griffin, Superior Court, judicial district of Hartford, Docket No. FA 07 4029193 (May 18, 2011, Taylor, J.) (addressing the significant decrease in gifts as a “substantial change” in determining modification postjudgment).   Until such cessation, courts are within their discretion to “reasonably assume that those contributions will continue.”  (Internal quotation marks omitted.)   Unkelbach v. McNary, supra, 244 Conn. 361.

Lastly, unlike regularity and consistency, it is worth noting that the form, mode and source of recurring gifts, as well as the purposes for which they are intended, are not determinative factors.   Our Supreme Court in Unkelbach v. McNary stated that regular “gifts, whether in the form of contributions to expenses or otherwise, are properly considered in determining alimony awards ․” (Emphasis added.)  Unkelbach v. McNary, supra, 244 Conn. 360–61.   Thus, gifts, as in the present case, may encompass any form of assistance, such as payment for household expenses including, but not limited to, groceries, rent, utilities and gas.   See generally Watrous v. Watrous, Superior Court, judicial district of New London, Docket No. FA 04 4000497 (June 30, 2009, Oliveira, J.);   Devit v. Devit, Superior Court, judicial district of New Haven, Docket No. FA 06 4005722 (May 8, 2007, Rubinow, J.).   In addition, although no witness has suggested this is the case with these funds, it is also worth noting that a party's argument that the gifts and/or contributions are essentially “advancements” on an expected inheritance, rather than gifts, has been held unpersuasive.   Standish v. Standish, Superior Court, judicial district of Hartford, Docket No. FA 920507979 (November 23, 1998, Gruendel, J.).   Courts have reiterated in response to such an argument that as long as “past gratuities [were] made on a regular basis during the marriage ․ the court may reasonably assume that those contributions will continue.”  Rubin v. Rubin, 204 Conn. 224, 238–39, 527 A.2d 1184 (1987).   The defendant has been supported by her parents for almost the last three years through regular and consistent gifts, and that should be taken into consideration by the court.⁶

Although the defendant is currently employed on a very part-time basis, she does have a considerable employment history, as was detailed above.   The concept of basing financial orders on a party's earning capacity, as opposed to one's actual earnings, is well established in our statutes and case law.   General Statutes § 46b–82 directs the court to look to a series of factors in setting an alimony award including, but not limited to, “occupation, amount and sources of income, vocational skills, employability ․” In our case law this has come to mean that “[e]arning capacity ․ 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.”  (Internal quotation marks omitted.)  Weinstein v. Weinstein, 280 Conn. 764, 772, 911 A.2d 1077 (2007).   The minor child is, at this time, of sufficient age to be in either school or daycare for the full work day, and there is no reason that the defendant could not seek full-time employment.   Once so employed, her reasonable earning capacity would be $50,000,⁷ although it would be necessary for her to regain some of her skills and she would need some transitional time to achieve such a goal.

The plaintiff has been employed as a real estate agent for most of his adult life and his earnings have reflected the real estate market's volatility.   His most recent financial affidavit shows a gross income from his real estate commissions of about $113,000, and even less if one accepts his claimed business expenses.   That gross income—before any business expenses—has fluctuated as high as $289,260 in tax year 2006, and as low as $119,116 in tax year 2011.   The plaintiff testified that his gross commissions for the period from January 2012 through January 2013—13 months—was $196,736.   His average gross commissions for the last five years is $170,227.

Due to the fact that he is essentially self-employed, it would be appropriate to deduct from that amount some reasonable business related expenses.   The testimony on this issue was conflicting.   The plaintiff testified that he is careful to keep receipts for all business related items, and he tallies them up at the end of the year.   Such a collection of receipts has been placed into evidence.   In reviewing the plaintiff's tax returns for the last three years (2009–2011), his claimed expenses have fluctuated wildly with little or no correlation to his commissions.   In 2009, for example, he had gross commissions of $145,110, with claimed business expenses of $100,500, or 69 percent of his gross.   In 2010, he earned $210,480 and had expenses of only $32,000, or 15 percent of his gross.   In 2011, his income dropped significantly to $119,110, but his expenses climbed to 31 percent of his gross commissions, or $37,500.   It is understandable that his expenses may have increased in a bad year due to more advertising and promotional work, but the numbers for 2009 are so far removed from the two other years that it is almost impossible to justify.

The plaintiff was questioned extensively about his business expenses, and despite the defendant's attempt to prove he used his lunch charges as business expenses, the plaintiff's explanation was reasonable and credible.   It would appear reasonable for the plaintiff's gross commissions to be reduced by 20 percent to account for legitimate and necessary business expenses.

This would comply with the plaintiff's testimony about his more recent income and expenses.   As indicated above, the plaintiff testified during the trial that his income for the thirteen (13) month period from January 2012 through January 2013 was $196,736.   His expenses for the same period, according to his testimony, was approximately $38,750, or 20 percent.   Applying the 20 percent business expense to his average commission income over the last five years, one would find that the plaintiff's reasonable average annual gross commission income, less business expenses, would be $136,182.⁸  Using the incomes assigned to each party, the child support guidelines would call for a child support payment to the custodial parent in the amount of $248 per week.

In reviewing the expenses listed by the defendant, it is easy to see why she was required to rely on the support of her parents.   Even reducing her listed expenses to provide the basics for her and the minor child, produces a weekly expense of approximately $2,500.   Assuming she were able to immediately become employed at the $50,000 earning capacity figure and received the presumptive child support and an appropriate amount of alimony, she would still fall short of those more limited expenses by almost $1,200 per week.   The court could not award sufficient alimony to meet even that reduced budget.   There can be no doubt that the defendant will continue to rely on significant support from her parents unless she drastically alters her lifestyle.   That might require the sale of the marital home.

The real property located at 3 Long Meadow Road in Riverside, Connecticut, has been the marital residence for the entirety of this very short marriage.   As indicated above, that property is titled to the defendant and her parents.   There is equity in the property based on the fair market value, less the mortgage;  there is absolutely no equity if one also calculates in the claimed obligation to the defendant's parents.   The amount claimed to have been spent on the property by the Leamons' is over $2.1 million, and that is not in dispute.

Prior to the marriage, the plaintiff, who is older and had been working longer than the defendant, had acquired some significant assets.   He owned three parcels of real property (18 Thomasina Lane, Darien, Connecticut;  364 Long Trail House, Stratton, Vermont;  and 444 Bedford Street, Unit 5P, Stamford, Connecticut), with a total equity position, calculated upon the net proceeds derived from the sale of the first two (2) referenced properties and the equity position in the condominium of approximately $525,000.   Currently there are only two pieces of real estate in the marital estate other than the marital home.   The first is a condominium located on Bedford Street in Stamford.   This is an investment property owned by the plaintiff prior to the marriage, as indicated above, and has equity of approximately $66,000.   It is currently rented, but has a small negative cash flow.   The other property is a second and different unit located at the Stratton, Vermont ski resort.⁹  It was purchased after the marriage, but was funded primarily with the sale proceeds of the Thomasina property.   Although the defendant testified that her income along with the plaintiffs went into a single joint account from which all expenses were paid, the same argument for an equitable share is made by the plaintiff for the marital home with somewhat more power.   The equity in the Stratton property is approximately $135,000.   That property, however, is in danger of foreclosure due to failure to keep the mortgage current.

There is no significant personal property.   The parties divided those items early in the case as part of their stipulation allowing the defendant and the minor child to have exclusive use of the marital home.   That division was memorialized in a written agreement approved by the court (Wenzel, J.) in court document # 136.00, including allowing the plaintiff time to remove a pool table after the dissolution.   Everything left is some small bank accounts, their respective cars and their membership to the Riverside Yacht Club. Despite the bleak financial status of the defendant, as well as the plaintiff, they both want a piece of this rather expensive membership.¹⁰

Given the fact that both parents are college educated and that they both testified to the hope that their child will also attend college, it is appropriate for the court to honor their mutual request that the court retain jurisdiction regarding the post-secondary education of their daughter.

Having reviewed carefully the testimony of the parties and the other witnesses, including their demeanor while on the stand, having reviewed the items presented to the court as evidence and having considered the statutory criteria of the appropriate statutes, as well as the case law of our state, the court makes the following findings of fact:

A. The court has jurisdiction over this matter;

B. All statutory stays have expired;

C. The allegations of the complaint have been proven;

D. The marriage has broken down irretrievably and there is no reasonable hope of reconciliation;

E. Neither party bears a greater degree of blame for the failure of the marriage than does the other;

F. There is one child issue of the marriage, born December 12, 2008;

G. Neither party nor the child has been the recipient of any state or municipal assistance during the marriage;

H. It is in the best interests of the minor child for the parties to share joint legal custody;

I. It is in the best interests of the minor child for the parties to have the assistance of a co-parenting coordinator or counselor and to communicate only in writing, with the exception of emergency situations;

J. It is in the best interests of the minor child to remain in her current therapy;

K. It is in the best interests of the minor child for each parent to engage in appropriate therapy to assist them in dealing effectively with their own issues that have interfered with their ability to successfully co-parent;

L. The defendant has an earning capacity of $50,000 per annum;

M. The defendant's alleged loans from her parents, exceeding $500,000 during the pendency of the litigation, are found to have been regular and recurring gifts to her that have been given to support and enhance her living expenses, and they are likely to continue into the future;

N. The plaintiff's average annual gross income, less his reasonable business expenses, is $136,182;

O. Based on the plaintiff's average income and the defendant's earning capacity, the presumptive child support, pursuant to the Child Support Guidelines, would be $248 per week; ¹¹

P. Despite her earning capacity and her regularly and recurring parental gifts, the young age of the minor child and the fact that the defendant has been out of the work force for several years, an award of alimony would be appropriate and equitable;

Q. Had the parties remained an intact family, they would have supported their minor child in her postsecondary educational pursuits;

R. The marital home located at 3 Long Meadow Road, Riverside, Connecticut, is owned by the defendant and her parents.   There is no equity in said property;

S. The real property located at 444 Bedford Street, Unit 5P, Stamford, Connecticut, is owned by the plaintiff and has an estimated equity value of $66,000;

T. The proceeds derived from the sale of the plaintiff's premarital property (Thomasina) ($422,000) were deposited to a joint bank account of the parties;

U. The proceeds of that sale (Thomasina) was used to purchase the jointly owned real property located at Hearthstone Lodge, # 133, Stratton, Vermont;

V. Said property is found to have a equity value of approximately $135,000;

W. The GAL has presented an affidavit of fees as of April 9, 2013, totaling $133,576.29, representing 298.6 hours at her billing rate of $450 per hour, plus $46.29 in costs.   The court's calculation using that hourly rate and number of hours would equal $134,370 in billable hours, but the difference is less than two billable hours, so the court will find the total of $133,576.29 to be fair and reasonable given the nature of the case and the professional qualifications of the GAL;

X. The GAL reports that the plaintiff has paid a total of $40,185.64 and that the defendant has paid $42,135.15;

Y. The court order appointing the GAL called for an equal sharing of the obligation;

Z. The continued service of the GAL during the immediate postjudgment period would be in the best interests of the minor child;  and

AA. The court finds that the defendant's unfounded reliance on the unsubstantiated statements of such a young child was the cause for the extended nature of this litigation.

After reviewing all of its findings and once again applying the various statutory criteria required by law, as well as the case law of our state, and in consideration of the evidence presented, the court hereby ORDERS:

1. The marriage of the parties is dissolved and they are each now separate and individual persons;

2. The parties shall share joint legal custody of the minor child;

3. The child shall reside primarily with the defendant;

4. The plaintiff shall have parenting access to said child as follows:

4.1 On a two week rotating schedule;

4.1.1 Week one:  Monday from 9 a.m. to 7 p.m. and Friday from 9 a.m. to Sunday at 7 p.m.;

4.1.2 Week two:  Tuesday and Thursday from 9 a.m. to 7 p.m.;

4.1.3 Once the child is in school for a full day, the plaintiffs access will begin at the end of school, if in session, or 9 a.m., if not;

4.2 Holiday Access;

4.2.1 The parties shall alternate the following holidays:

4.2.1.1 Halloween:  4 p.m. to 7 p.m. shall be with the plaintiff in odd years;  the defendant in even;

4.2.1.2 Thanksgiving:  9 a.m. to 7 p.m. shall be with the plaintiff in even years;  the defendant in odd;

4.2.1.3 Christmas Eve:  December 24 at noon (12 p.m.) through December 25 at noon (12 p.m.) shall be with the plaintiff in odd years;  the defendant in even;

4.2.1.4 Christmas Day:  December 25 at noon (12 p.m.) through December 26 at noon (12 p.m.) shall be with the plaintiff in even years;  the defendant in odd;

4.2.1.5 Easter Sunday:  9 a.m. to 7 p.m. shall be with the plaintiff in odd years;  the defendant in even;

4.2.1.6 July 4:  July 4 at 9 a.m. through July 5 at 9 a.m. shall be with the plaintiff in even years;  the defendant in odd;

4.2.2 The plaintiff shall always have the child on Father's Day from 9 a.m. to 7 p.m.;

4.2.3 The defendant shall always have the child on Mother's Day from 9 a.m. to 7 p.m.;

4.2.4 Any holidays not specified shall follow the normal access schedule;

4.3 Vacations;

4.3.1 Summer 2013;

4.3.1.1 Each parent shall have four (4) consecutive nights with the minor child, including their regularly scheduled weekend time;

4.3.1.2 The plaintiff shall inform the defendant of his vacation schedule no later than May 15, 2013, and barring an agreement to the contrary, his request shall be honored;

4.3.2 Future summers;

4.3.2.1 Each parent shall have two nonconsecutive weeks with the minor child during the summer, commencing with the summer of 2014, which will include that parent's regularly scheduled weekend, and five (5) intermediate days;

4.3.2.2 Each party shall notify the other of their respective vacation weeks no later than March 1 of each year;

4.3.2.3 In the event of a conflict, the defendant will have first choice in even numbered years and the plaintiff will have first choice in odd numbered years;

4.3.2.4 The parties will give each other at least two (2) weeks' notice in writing regarding the scheduling of and information for vacation days, which shall include, at a minimum, an itinerary and contact information, the specific format and content of which shall be determined in conjunction with their parenting coordinator;

4.3.3 School vacations;

4.3.3.1 All week long school vacations shall be shared equally;

4.3.3.1.1 The parent whose weekend starts the vacation period shall have the first half and the other shall have the second half, including their weekend;

4.3.3.1.2 Wednesday at noon (12 p.m.) shall be the transition time;

4.3.3.2 If there is a school vacation that is longer than one week, the time will be divided equally following the same formula;

4.3.3.3 The Christmas vacation shall be divided as of noon (12 p.m.) on December 26, with the parent who has the child on that day having the first portion of the evenly divided time;

4.4 General Access Orders;

4.4.1 Whenever possible the exchange shall take place at school or camp, but if that is not possible the exchange should take place at the respective homes of the parents;

4.4.2 The plaintiff shall transport the child at the start of his parenting time and the defendant shall do the same at the start of her parenting time;

4.4.3 Prior to the commencement of any overnights, each parent will consult independently with Pauline Jordan, the minor child's therapist, and the parties will allow the child at least one (1) session directly with Jordan, in order to properly prepare the child for overnight parenting time at the father's home;

4.4.3.1 The overnight visits shall commence with the following weekend, but in no event shall overnights commence later than the weekend of Friday, May 17 through Sunday, May 19, 2013, which shall be week number one for the rotation schedule;

4.4.3.2 Until the conditions as set forth above in ¶ 4.3.3.1 are met, the plaintiff's access time shall follow the same schedule but shall end at 7 p.m. each day and not include the overnight provision;

4.4.4 When the mother or father intends to travel with the minor child outside of Connecticut, or is away overnight with the child, he or she shall inform the other of the planned itinerary, addresses and contact information, as early as practicable prior to the scheduled travel;

4.4.5 Vacation parenting time shall supercede the regular weekly schedule and all holiday parenting time shall supersede regular weekday and weekend parenting time, as well as all vacation parenting time;

4.4.6 The parties shall recognize that it is important to maintain the schedule as set forth above, to the greatest extent possible.   The parties, however, also shall recognize that cooperation and flexibility is necessary in order to allow the minor child participation in special occasions and family events as they may occur.   The parties shall agree on those special occasions or special events and to the extent they cannot, the matter will be presented to the parenting coordinator as set forth below;

4.4.7 Either party may attend those sporting events, school events, recitals, and the like, to which parents are regularly invited.   If the child participates, then the parent who has parenting time during the particular event, shall be responsible for transporting the child to and from the event;

4.4.8 While the child is with one parent, the other parent may speak to the child over the telephone once daily at a time to be agreed upon by the parties;

5. Parental Decision Making;

5.1 The parties shall consult with one another on all significant, nonroutine decisions involving the health, education, religion and general welfare of the minor child;

5.1.1 Day to day decisions shall be made by the parent with whom the child is with in accordance with the detailed schedule discussed below;

5.1.2 Neither parent shall make a unilateral decision or take unilateral action regarding the child;

5.1.3 Significant, nonroutine decisions shall include, but not be limited to, the following areas:

5.1.3.1 selection of schools and educational decisions; 12

5.1.3.2 the residence of the children;

5.1.3.4 daycare providers including after school and summer camp programs;

5.1.3.5 participation in extracurricular activities that require commitments of time and transportation involving the other parent;

5.1.3.6 nonemergency medical, dental, psychological, psychiatric or orthodontic care, including the selection of the care providers;

5.1.3.7 participation in religious organizations and activities;  and

5.1.3.8 trips away from home without a parent that involve a distance of more than fifty (50) miles, or overnight stays;

5.2 Either parent may propose to the other a course of action as to such mutual decisions;

5.2.1 The proposal, as well as all subsequent communications, must be in writing;

5.2.2 The other party shall, within forty-eight (48) hours, indicate approval in writing or indicate disagreement and offer an alternative proposal to which the first parent must respond within forty-eight (48) hours;

5.2.3 Either party may request additional information or offer modifications of their proposal;

5.2.4 The forty-eight (48) hour reply rule will apply to all communications;

5.2.5 Any failure to respond to a proposal, request for more information or failure to provide an alternative proposal shall be considered an agreement by the noncommunicating parent absent a valid reason for the delay;

5.2.6 The process will end when the parties agree, accept that they cannot agree on one plan or after two weeks, whichever first occurs;

5.2.7 In the event of no agreement and compliance with the procedure detailed above, the plaintiff shall have the final authority to make the decision;

5.3 Our Family Wizard;

5.3.1 The parties are ordered to visit the “ourfamilywizard.com” website, take the tour by clicking on the “Families” tab on the main page, and each establish a parent account to utilize the tools listed in the “Services” tab.   Each shall enroll in the program for a one-year subscription, no later than May 1, 2013;

5.3.2 The parties shall thereafter not email each other directly regarding issues relating to the child but shall post all communication exclusively on the website;

5.3.3 Once they do enroll in that program, they shall not communicate by telephone except regarding matters of an emergency nature regarding the child that must be acted upon in less than twenty-four (24) hours.   This provision may be modified with a favorable recommendation for direct communication from the co-parenting coordinator;

5.3.4 If a parent posts a message on the website that requires a response by the other parent, such parent shall respond within forty-eight (48) hours unless it is clear from the message itself that a longer response time is acceptable;

5.3.5 The parties shall promptly inform each other of any and all important events concerning the minor child and post such events on the calendar;

5.3.6 Each shall furnish the other with copies of all reports and all notices from third parties concerning the minor child's health and education;

5.3.7 They shall each be responsible for maintaining their account with the website in good standing at their expense;

5.3.8 They shall take all necessary steps to allow the guardian ad litem and the parent coordinator to monitor the site, which shall include the back and forth emails as well as the child's calendar and list of service providers;

5.4 Co-parenting coordinator;

5.4.1 The parties shall use the services of a co-parenting coordinator or counselor as selected by the GAL for a period of at least one year;

5.4.2 The co-parenting coordinator's role will be to:

5.4.2.1 Assist the parents in learning effective co-parenting communication skills;

5.4.2.2 Help mediate parental decisions and disputes;

5.4.2.3 Assist the parents in finding appropriate therapists to assist each of them in dealing with their own issues that might hinder their ability to co-parent effectively;

5.4.3 The parties shall share equally the cost of the co-parenting coordinator;

5.4.4 With the exception of a true emergency situation, neither party is to file a motion regarding the custody arrangements or file a complaint with a third-party organization about the behavior of the other parent without first bringing the matter to the attention of the co-parenting counselor;

5.4.5 Failure to obey the orders relating to the role of the co-parenting counselor will be a factor in any future custody determination and will be grounds to award legal fees and costs to the other parent if deemed appropriate by any future court of competent jurisdiction;

5.5 Both parties shall exert every reasonable effort to maintain free access and unhampered contact between the minor child and each parent and each parent's extended family and to foster a feeling of affection between the minor child and each parent and each parent's extended family;

5.6 Under no circumstances will either party demean, denigrate or disparage the other parent, significant others, grandparents, or other family members, to the child, or in the presence of the child, nor will either parent permit others to do so;

5.6.1 Neither parent shall do anything that may estrange the minor child from the other parent, nor injure the opinions of the minor child as to the other parent, nor act in such a way as to hamper the free and natural development of the minor child's love and respect for the other parent;

5.6.2 Both parties shall act with civility, respect, and courtesy towards one another;

5.6.3 Under no circumstances will either parent excessively question the child regarding the other parent, the activities in the other home, the social life of the other parent, or any social interactions in the other parent's home.   Neither parent will permit others to do so, directly to the child, or in the child's presence;

5.7 The minor child shall remain in therapy with her current therapist, Pauline Jordan, Ph.D., until such time as she is discharged by said therapist;

5.7.1 Both parents shall cooperate with the therapist in her treatment of the child including, but not limited to, attending sessions with the child as directed by the therapist;

5.7.2 The cost of such therapy is to be shared by the parties in accordance with the percentages as set by the Child Support Guidelines indicated below;

5.7.3 The parents and the GAL shall authorize the child's therapist to communicate with the parenting coordinator and the GAL as is necessary to reasonably effectuate the court ordered parenting plan;

5.8 Each party shall continue their individual therapy sessions with a licensed clinical psychologist or psychiatrist, with an M.D. or Ph.D.;

5.8.1 Each party shall be responsible for the cost of their own therapy;

5.8.2 Said therapy shall continue until the child's therapist and the parenting coordinator agree that it is no longer needed to reasonably effectuate the court ordered parenting plan;

5.8.3 Each party shall authorize their respective therapist to communicate with the child's therapist and with the parenting coordinator in order to reasonably effectuate the court ordered parenting plan;

6. The plaintiff shall pay to the defendant as weekly child support the sum of $250;

6.1 The plaintiff shall also pay 53 percent of all unreimbursed and/or uncovered medical, dental, optical, psychological, psychiatric and other such related expenses for the benefit of the minor children, with the language to be interpreted to be inclusive rather than exclusive in case of a lack of clarity as to a specific expense of this nature;

6.2 The parties shall share equally all extracurricular and enhancement activities for the minor child as long as such activities are agreed to in advance, in writing, by the parents;

6.2.1 Approval shall not be unreasonably withheld;

6.2.2 No mention of any such activity should be brought to the child's attention prior to the parents' advance discussion and agreement as to such activity;

6.3 The parties shall cooperate in providing appropriate medical and dental insurance coverage for the minor child;

6.3.1 They shall share the cost of such coverage equally;

6.3.2 The provisions of General Statutes § 46b–84(e) shall apply to these orders;

6.3.3 This provision shall be modifiable as a part of the overall support of the child;

7. The parent seeking reimbursement shall provide the other parent with the request for reimbursement at least quarterly.   Such request must include sufficient documentation so that the parent can reasonably determine the cost of the service, the nature of the service, the amount of insurance coverage, if any, and the amount being sought;

7.1 The reimbursing parent must advise the other parent of any objections to a reimbursement claim within ten (10) days of the receipt of the request;

7.2 The reimbursing parent shall make the reimbursement within thirty (30) days if the amount being sought is $250 or less.   If the amount is above $250, he/she shall have sixty (60) days to make reimbursement;

7.3 Failure of either party to comply with the time limits as set forth above shall result in that party's forfeit of their rights under this provision;

7.4 Failure of the reimbursing parent to make payments within the time limits prescribed shall result in the accruing of interest on the unpaid amount at the statutory rate of 8 percent per annum;

7.5 The time provisions of this order shall commence on the date of the request or the date that any objection to the request is resolved, whichever is the latter;

8. The court shall retain jurisdiction regarding postsecondary educational expenses for the minor child, pursuant to General Statutes § 46b–56c;

9. The plaintiff shall pay to the defendant as periodic alimony the amount of $250 per week; ¹³

9.1 Said alimony shall terminate upon the death of either party, or May 1, 2015, whichever first occurs;

9.2 Said alimony shall be taxable income to the defendant and tax deductible to the plaintiff;

9.2.1 The plaintiff shall maintain life insurance coverage of $500,000 to secure his financial obligations to the plaintiff and the minor child until the minor child reaches her 23rd birthday in December of 2031;

9.2.2 The defendant shall maintain life insurance coverage of $250,000 to secure her financial obligations to the minor child until the minor child reaches her 23rd birthday in December of 2031;

9.2.3 Any claim for an unpaid support obligation, including any postsecondary educational obligation, by either party not covered by the ordered life insurance, as detailed above in ¶ 9.2.2, shall be an appropriate claim against the estate of that deceased party;

10. The defendant shall retain her ownership interest in the marital home located at 3 Long Meadow Road, Riverside, Connecticut, free and clear of any claim by the plaintiff and she shall indemnify and hold him harmless from any liability therefrom;

11. The plaintiff shall retain his ownership interest in the real property located at 444 Bedford Street, Unit 5P, Stamford, Connecticut, free and clear of any claim by the defendant and he shall indemnify and hold her harmless from any liability therefrom;

12. The real property they jointly own, located at Heathstone Lodge, # 133, Stratton, Vermont, shall now be held by the parties as tenants in common, pursuant to General Statutes § 47–14g;

12.1 Said property shall be placed on the market for sale immediately;

12.2 The husband shall continue to receive the rental income from the property and be solely responsible for all costs, taxes, fees and expenses associated with the ownership and management of the property until it is sold;

12.3 They shall agree on a listing agent and follow the reasonable recommendations of said realtor regarding the pricing and marketing of said property;

12.4 No legitimate purchase offer within 5 percent of the listing price shall be refused;

12.5 The proceeds of the sale shall be allocated as follows:

12.5.1 All outstanding obligations for the property to be paid in full, without credit for any arrearage that existed as of May 1, 2013, any new arrearage from May 1 and onward shall be the sole liability of the plaintiff;

12.5.2 All reasonable and customary costs of the closing, including a reasonable attorneys fee;

12.5.3 The plaintiff shall receive 70 percent of the remaining funds and the defendant shall receive 30 percent;

12.5.4 The costs of maintaining the property pending sale shall be paid from the rental income and any excess shall be shared in the same 70/30 percent split, as detailed in ¶ 12.5.3 above;

12.5.5 The court will retain jurisdiction over the sale of said property until the conveyance has been completed;

13. Each party shall retain, free and clear of any claim by the other party, any and all property they currently possess including, but not limited to, motor vehicles, bank or investment accounts, deferred income assets, personal property and the like.   The property division memorialized in the stipulation docketed as item # 136.00 is incorporated into this judgment in full, and shall be made a part hereof;

13.1 The parties shall cooperate with each other in order to execute any DMV or other documents to confirm and/or transfer ownership/possession of these vehicles or other items of personal property;

13.2 Each party shall indemnify and hold the other harmless for any outstanding loan balances or other financial obligations for the vehicle they are retaining or for any other items of personal property;

14. The court declines to rule on the membership to the Riverside Yacht Club and leaves the issue to the parties;

15. Each party shall be responsible for their own medical and/or dental insurance coverage;

16. The parties shall alternate claiming the minor child as a dependent for tax reporting purposes as of 2015;

16.1 The plaintiff shall claim the child for tax years 2013, 2014 and all even years thereafter;  the defendant in all odd years, commencing in 2015;

16.2 Each party shall provide the other with the completed and executed necessary IRS form on an annual basis to effectuate this provision;

17. The parties shall exchange their income information annually no later than May 1 of each year;

17.1 Such exchange shall include the first page of their tax return as well as any “Schedule C” filed with the return;

17.2 Such obligation shall continue for as long as either party has any financial obligation to the other or to the minor child;

18. The parties are ordered to pay the GAL her fees as stated in her “Affidavit of Fees,” dated April 9, 2013 as follows;

18.1 The plaintiff shall pay $26,602.50, representing his one-half of the total, less what has already been paid;

18.2 Said payment to be made in full, no later than September 30, 2013;

18.3 In the event that there is any balance owed as of October 1, 2013, interest at the rate of 10 percent per annum shall accrue on the full $26,602.50, as of May 1, 2013, and shall continue to accrue in the monthly amount of $221.69 (10 percent of $26,602.50, divided by twelve (12)) until paid in full;

18.4 The defendant shall pay $24,653, representing her one-half of the total, less what has already been paid;

18.5 Said payment to be made in full no later than September 30, 2013;

18.6 In the event that there is any balance owed as of October 1, 2013, interest at the rate of 10 percent per annum shall accrue on the full $24,653, as of May 1, 2013, and shall continue to accrue in the monthly amount of $205.44 (10 percent of $24,653, divided by twelve (12)) until paid in full;

18.7 The GAL shall continue to serve in her capacity for 180 days or until the parenting coordinator/counselor is in place and operating, whichever is the later, and at that time the GAL's motion to withdraw will be considered by the court;

18.8 The parties shall continue to pay the guardian at the rate of $450 per hour, dividing the cost equally until she files her withdrawal with the court.   The above interest penalties shall not apply to any postjudgment fees without further order of the court;

19. Each party shall be solely liable for their own debts;

19.1 The plaintiff shall not be liable for the American Express obligation in the amount of $998.11 or his share of the Riverside Yacht Club expenses in the amount of $11,038.45, and those obligations shall be the sole liability of the defendant;

20. Each party is to be solely liable for their own legal fees;  and

21. Each mental health professional working with this family in any capacity related in any way to parenting, including the co-parenting coordinator, shall be given a copy of this memorandum of decision by the GAL, and shall also be given copies of the evaluations done by doctors Smith and Naso.

Adelman, J.

FOOTNOTES

FN1. It should be noted that the court orders entered March 15, 2012 by the court (Malone, J.) limited the plaintiff to relatively short periods of parenting time and no overnight access..  FN1. It should be noted that the court orders entered March 15, 2012 by the court (Malone, J.) limited the plaintiff to relatively short periods of parenting time and no overnight access.

FN2. This might actually be considered two allegations, as the mother described two separate events a few days apart, but the reporting was made at one time..  FN2. This might actually be considered two allegations, as the mother described two separate events a few days apart, but the reporting was made at one time.

FN3. The court does not mean to imply that excessive pleadings have been filed, because they have not.   It is simply clear from what pleadings do exist and the testimony of the witnesses that there was not much in dispute, with the sole exception of a meaningful parenting schedule for the father, and that was not something the defendant could accept..  FN3. The court does not mean to imply that excessive pleadings have been filed, because they have not.   It is simply clear from what pleadings do exist and the testimony of the witnesses that there was not much in dispute, with the sole exception of a meaningful parenting schedule for the father, and that was not something the defendant could accept.

FN4. Naso noted in his second evaluation:  “Mr. Nedder (Plaintiff) often acts only after being prodded (or compelled) to do so.   His passivity is problematic and self-undermining ․ Although it is unlikely that any amount of communication will satisfy his wife completely, his inconsistency is evidence of passive aggressive behavior, which is to say, behavior intended to frustrate and provoke anxiety in his wife.”.  FN4. Naso noted in his second evaluation:  “Mr. Nedder (Plaintiff) often acts only after being prodded (or compelled) to do so.   His passivity is problematic and self-undermining ․ Although it is unlikely that any amount of communication will satisfy his wife completely, his inconsistency is evidence of passive aggressive behavior, which is to say, behavior intended to frustrate and provoke anxiety in his wife.”

FN5. The plaintiff, through counsel, amended that claim for relief during closing argument to sole legal custody..  FN5. The plaintiff, through counsel, amended that claim for relief during closing argument to sole legal custody.

FN6. While such regularly recurring contributions are used as a deviation criteria in the Child Support Guidelines, they are only applied in that matter if the contributions come from a spouse or domestic partner.   That is not the case here, where they are being made by a parent of the party.   Nevertheless, that additional income may be considered by the court for the purpose of determining whether or not to award alimony.   See Regs., Conn State Agencies § 46b–215a–3(b)(1)(D)..  FN6. While such regularly recurring contributions are used as a deviation criteria in the Child Support Guidelines, they are only applied in that matter if the contributions come from a spouse or domestic partner.   That is not the case here, where they are being made by a parent of the party.   Nevertheless, that additional income may be considered by the court for the purpose of determining whether or not to award alimony.   See Regs., Conn State Agencies § 46b–215a–3(b)(1)(D).

FN7. The testimony was that as a trader early in her career she earned close to $50,000, and more recently as manager of the Greenwich Rowing Club, she earned at least $60,000.   Many of her salaries were in the mid $30,000 range while working as a personal assistant and she also managed, and then owned retail businesses..  FN7. The testimony was that as a trader early in her career she earned close to $50,000, and more recently as manager of the Greenwich Rowing Club, she earned at least $60,000.   Many of her salaries were in the mid $30,000 range while working as a personal assistant and she also managed, and then owned retail businesses.

FN8. The plaintiff's other income sources stem from two investment properties, but both have a negative cash flow as testified to by the plaintiff without controversy by the defendant.   The income cited also includes the minor amounts earned by assisting other agents with showings, etc..  FN8. The plaintiff's other income sources stem from two investment properties, but both have a negative cash flow as testified to by the plaintiff without controversy by the defendant.   The income cited also includes the minor amounts earned by assisting other agents with showings, etc.

FN9. During the marriage, the plaintiff sold the first Stratton unit (364 Long Trail House), netting approximately $50,000 from said sale, which was deposited into the parties' joint account and utilized for the expenditures of the parties..  FN9. During the marriage, the plaintiff sold the first Stratton unit (364 Long Trail House), netting approximately $50,000 from said sale, which was deposited into the parties' joint account and utilized for the expenditures of the parties.

FN10. The request for this item by the defendant, despite the fact that the minor child goes to camp at the club, is simply another indication that she intends to rely on the support of her parents in the future, as this is a completely unrealistic request under any other explanation..  FN10. The request for this item by the defendant, despite the fact that the minor child goes to camp at the club, is simply another indication that she intends to rely on the support of her parents in the future, as this is a completely unrealistic request under any other explanation.

FN11. The guidelines are official regulations established by the Commission for Child Support Guidelines pursuant to General Statutes § 46b–215a and approved by the legislative regulation review committee pursuant to General Statutes § 46b–215c.   See Regs., Conn. State Agencies § 46b–215a–1 et seq.   A copy of the court's guideline calculations are attached hereto and made a part hereof..  FN11. The guidelines are official regulations established by the Commission for Child Support Guidelines pursuant to General Statutes § 46b–215a and approved by the legislative regulation review committee pursuant to General Statutes § 46b–215c.   See Regs., Conn. State Agencies § 46b–215a–1 et seq.   A copy of the court's guideline calculations are attached hereto and made a part hereof.

FN12. The court notes that the decision as to where the child shall attend camp this summer and where she shall attend preschool next academic year have already been made and shall remain unchanged..  FN12. The court notes that the decision as to where the child shall attend camp this summer and where she shall attend preschool next academic year have already been made and shall remain unchanged.

FN13. Although incomes and earning capacity has been discussed in gross income amounts, the court has used net income levels in determining the financial orders for both child support and alimony.   The plaintiff's net income for the calculation of alimony was $91,101 leaving him with $65,115 after the payment of taxes, alimony and child support.   The defendant's presumed gross income with alimony and child support included would be $75,992, with an income net after taxes of $65,028..  FN13. Although incomes and earning capacity has been discussed in gross income amounts, the court has used net income levels in determining the financial orders for both child support and alimony.   The plaintiff's net income for the calculation of alimony was $91,101 leaving him with $65,115 after the payment of taxes, alimony and child support.   The defendant's presumed gross income with alimony and child support included would be $75,992, with an income net after taxes of $65,028.

Adelman, Gerard I., J.