Susanna Lombardi v. Philippe Lombardi (2013)

MEMORANDUM OF DECISION RE MOTION FOR MODIFICATION, POSTJUDGMENT

The defendant Philippe Lombardi filed a postjudgment motion for modification of child support, custody and visitation (Docket No. 128.00) against his former wife, the plaintiff Susanna Lombardi.¹  The motion appeared on the court's calendar on May 31, 2013, at which time the plaintiff and the defendant entered into an agreement with respect to child support.   The child support agreement was approved and adopted by the court.   Thereafter, the court conducted an evidentiary hearing on the remaining issues of custody and visitation.

The marriage of the parties was dissolved by order of the court (Gould, J.) on September 9, 2011.   The parties entered into a marital separation agreement which was incorporated into the divorce judgment.   The separation agreement provided, in relevant part at ¶ 4.1, that the plaintiff shall have sole legal custody of the parties' two minor children and that upon resolution of the defendant's pending criminal domestic violence charges, the defendant may seek to modify custody without showing a substantial change of circumstance.   The agreement provided further in ¶ 4.3 that once the domestic violence charges were resolved, the defendant “shall enjoy reasonable and liberal parenting time as agreed upon by the parties or as ordered by the court.”

The defendant's criminal domestic violence charges arose out of an incident occurring between the parties on or about December 10, 2010.   Both the plaintiff and the defendant were arrested, but the state pursued charges against the defendant only.   At arraignment, the court entered a full, no contact protective order against the defendant and in favor of the plaintiff and the parties' minor daughter.   Thereafter, on December 22, 2010, the plaintiff filed for divorce.   The divorce action proceeded to judgment while the defendant's criminal charges were pending and the full, no contact protective order remained in effect.   Consequently, no parenting plan or visitation schedule was established at the time the parties were divorced.

The domestic violence charges against the defendant were resolved on October 11, 2012 by way of plea agreement.   The defendant pled guilty under the Alford doctrine ² to a charge of Breach of Peace in the 2nd degree, a Class B Misdemeanor, and was sentenced to six months, execution fully suspended and one year probation with various conditions.   At the time of sentencing, the court terminated the full, no contact protective order entered in favor of the plaintiff and the parties' minor daughter and entered a ten year, full, no contact, standing criminal protective order against the defendant and in favor of the plaintiff only.   The parties have not discussed a parenting plan because the plaintiff supports her minor daughter's decision not to see the defendant and the standing criminal protective order prohibits the defendant from communicating with the plaintiff.

The defendant filed the pending motion for modification on the same day that the domestic violence charges were resolved.   When the motion appeared on the court's calendar on October 22, 2012, the matter was referred to Family Services for a comprehensive evaluation.   The evaluation was conducted by Francine Howze, a Family Relations Counselor, who prepared a Comprehensive Evaluation Report dated March 1, 2013.   At the May 31, 2013 hearing, the court heard testimony from the defendant and Ms. Howze, and received into evidence as a full exhibit the March 1, 2013, Comprehensive Evaluation Report.   After due hearing and careful consideration of the evidence presented, the court finds that it is not in the best interest of the parties' minor daughter for the court to modify the existing custody and visitation orders.

The Comprehensive Evaluation Report provides a thorough and detailed history of the minor daughter's mental health struggles, which began years before the parties' December 2010 domestic violence incident and continue through the completion date of the Report.   As noted in the Report, the minor daughter “has a long-standing history of chronic depression, suicide ideation, anxiety, self-injurious behaviors (cutting) beginning at age eight or nine in the context of exposure to chronic aggressive parental conflict.”   It appears from the Report that the minor daughter's mental health deteriorated significantly after the parties' domestic violence incident and divorce, as she was hospitalized at psychiatric facilities and treated for suicide ideation, depression and anxiety off and on from December 2011 until March 2012.

Both the plaintiff and the defendant suffer from mental health issues and are currently in therapy and/or treatment.   The plaintiff attends individual psychotherapy counseling and meets with a doctor for medication management.   The plaintiff's doctor opines that the plaintiff's issues have never negatively impacted her ability to parent her minor daughter.

The defendant is engaged in weekly counseling following a referral from his military unit.   The defendant enlisted in the United States Air National Guard in 2001.   He was employed with a subcontractor to the United States Air Force and later enlisted with the United States Air Force Reserves.   The defendant worked in Afghanistan from September 10, 2009 until October 9, 2010, and Iraq from January 18, 2011 until March 2011.   The defendant continues to serve with the United States National Guard once a month.   In November 2012, the defendant's military unit referred him to a counselor for generalized anxiety.   The defendant's counselor describes him as “presenting with a quick temper, and impulse control issues” but states that he has learned some techniques to assist him in remaining calm.

The parties' minor daughter is currently seeing a therapist and is also under the care of a psychiatrist who prescribes and manages the child's psychiatric mediations.   The Report indicates that the minor daughter has made significant progress in treatment.   Now fourteen years old, she is described as “bright and insightful” by her therapist and “intelligent,” “artistic” and “a determined teenager” by Ms. Howze.   As for contact with the defendant, the minor daughter remains steadfast in her position, as communicated to both her therapist and Ms. Howze, that she does not want to spend time with her father or have any communication with him.³  The Report concludes as follows:  “To force [the minor daughter] to spend time with her father at this point in her life may prove detrimental to her mental health and well-being.   It is for these reasons that this writer (Ms. Howze) believes that it is in the best interest of [the minor daughter] not to force reuniting [the defendant] with [the minor daughter] at this point.  [The minor daughter] should continue with therapy and the decision regarding reunification should be addressed in a therapeutic and safe environment.”

“The guiding principle in determining custody is the best interest of the child.”  Schult v. Schult, 241 Conn. 767, 777, 699 A.2d 134 (1997).   In matters involving child custody, Connecticut courts have consistently held “that while the rights, wishes and desires of the parents must be considered it is nevertheless the ultimate welfare of the child which must control the decision of the court.”  Ridgeway v. Ridgeway, 180 Conn. 533, 541, 429 A.2d 801 (1980), quoting In re Appeal of Kindis, 162 Conn. 239, 242, 294 A.2d 316 (1972).   The defendant testified at length regarding his strong desire to re-establish contact and a relationship with his minor daughter.   However, he also acknowledges, both in his testimony at the hearing and in his communications with Ms. Howze, that he wants what is in his minor daughter's best interest.

The court recognizes that the defendant has not seen his minor daughter since December 2010 and that he fervently desires to re-establish a relationship with her.   However, guided by the principles cited above, and having considered the factors enumerated in General Statutes § 46b–56, the court finds that the best interest of the parties' minor daughter will not be served if the court modifies custody or allows visitation at this time as requested by the defendant.   To the contrary, the court finds that any change in the current custody and visitation orders would jeopardize the significant progress the minor daughter has made and imperil her improving health and well-being.   Accordingly, the defendant's motion for modification is denied with respect to custody and visitation.

The court hereby ORDERS as follows:

1. The plaintiff shall retain sole legal custody of the parties' minor daughter.

2. The defendant shall not have visitation (parenting) time with the minor daughter at this time.

3. Any reunification or visitation between the defendant and the minor daughter shall occur only at the recommendation of the minor daughter's therapist, and/or upon further order of the court.   The plaintiff shall promptly communicate to her attorney any recommendation for reunification or visitation with the defendant made by the minor daughter's therapist and the plaintiff's attorney shall then promptly convey such information to the defendant and/or his attorney.

Lisa Kelly Morgan, Judge

FOOTNOTES

FN1. The pending motion involves the parties' minor daughter only as the parties' son has attained the age of eighteen..  FN1. The pending motion involves the parties' minor daughter only as the parties' son has attained the age of eighteen.

FN2. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)..  FN2. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

FN3. The defendant claims that the plaintiff has discouraged contact between his daughter and him and charges the plaintiff with parental alienation.   The Report does not substantiate the defendant's claims and the court finds no evidence to support them.   Moreover, the court notes that the defendant was precluded from having contact with his minor daughter from December 10, 2010 until October 11, 2012 as a result of the criminal protective order entered against him in connection with the domestic violence incident.   Once the protective order was terminated, the defendant commenced the instant proceedings seeking custody and visitation.   The standing criminal protective order entered in the plaintiff's favor in October 2012 prohibits the defendant from communicating with the plaintiff until October 2022..  FN3. The defendant claims that the plaintiff has discouraged contact between his daughter and him and charges the plaintiff with parental alienation.   The Report does not substantiate the defendant's claims and the court finds no evidence to support them.   Moreover, the court notes that the defendant was precluded from having contact with his minor daughter from December 10, 2010 until October 11, 2012 as a result of the criminal protective order entered against him in connection with the domestic violence incident.   Once the protective order was terminated, the defendant commenced the instant proceedings seeking custody and visitation.   The standing criminal protective order entered in the plaintiff's favor in October 2012 prohibits the defendant from communicating with the plaintiff until October 2022.

Morgan, Lisa K., J.