Daniel Fagan v. Tanya Fagan (2013)

MEMORANDUM OF DECISION

This fully contested dissolution of marriage case was brought in the Judicial District of Norwalk at Stamford by return date of January 25, 2011.   The pendente lite period of this case, two years, has resulted in the parties being in extended and highly conflicted litigation for much of the young life of their one child.   The matter was referred by the local court to the Regional Family Trial Docket.   The case was tried from March 20–26, April 4, and 8, 2013.   The parties' counsel, under direction of the court filed Proposed Findings of Fact on April 26, 2013.   The exhibits in this case exceeded 150, many of them being constituted by hundreds of pages in and of themselves.   The witnesses included both of the parties, two psychologists, both of whom performed evaluations, the defendant's treating psychiatrist, a real estate appraiser and the guardian ad litem.

The specific issues at the heart of the controversy between the parties is (1) that the plaintiff is seeking sole legal custody and the defendant is seeking joint legal custody, (2) each party is seeking a primary residence, and (3) the parties live ninety (90) minutes driving time apart and neither wants to move closer to the other to accommodate the child's contact with both of them as she enters (pre-) school this coming fall.

The parties also disagree as to the appropriate division of their assets and liabilities, the length and amount of alimony for the defendant, and, other attendant financial issues.

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.

Based upon the credible evidence the court finds the following facts and makes the following jurisdictional findings.

The court finds that it has jurisdiction over the marriage.   The parties were married in New York on August 24, 2007.   One party has resided in the state of Connecticut continuously since the bringing of this action.   There has been one minor child born to the parties, since the date of the marriage, Molly Victoria Fagan born August 20, 2009.   There have been no other minor children born to the wife since the date of the marriage.   There are no other minor children issue of the marriage.   The parties have not been recipients of public assistance.   As described hereinafter, the marriage between the parties has broken down irretrievably.

The parties met through an online dating service in September 1996.   At that time, each lived at their current location:  the plaintiff lives in the home he owns in Stamford, Connecticut and the defendant lives with her parents in Syosset, New York. The courtship of the parties was abbreviated;  they were married within a year, the following August.   Both were fully employed.

The plaintiff is currently forty-four years old.   He is employed at Coupons.com. He is a sales director.   His employment allows him to work out of his home unless he is traveling.   His travel is largely to the tri-state area except an annual trip to California.   He is in good health.

The defendant is forty years old.   Presently, she is not employed outside of the home.   At the time of the parties' marriage she was employed by Avon Products, working in New York City. At the time of the birth of their child she was still working in New York City in the gem industry.   The parties decided that the defendant should leave her employment so that she could care for their newborn child.   She is in good physical health.   She treats with mental health providers as described later in this decision.

The parties lived in the plaintiff's home at the time of their marriage.   Shortly after their marriage, in 2008, the plaintiff quitclaimed a half interest in the home to the defendant.   The home is in a vibrant neighborhood that has offered both of them friendships in their local community.   The parties did not adapt well as a couple with an infant.   The parties found themselves unable to talk things through effectively.   The defendant was internally struggling with the adjustment required for the transition from a career woman to an at home mother with a newborn child.   The plaintiff continued to expect the defendant to keep the house up, critical of her homemaker skills.   The parties attempted marital counseling to address their difficulties in early 2010.   At that time, the plaintiff often traveled for extended periods of time which made the defendant lonely.   The plaintiff believed the defendant was consuming excess quantities of alcohol at this time which she denied.

The plaintiff entirely controlled and administered the family finances.   In October 2010, the plaintiff asked the defendant to quitclaim her one-half interest in the marital home back to him.   She declined.   The plaintiff was displeased and the communication of the parties became more attenuated.   They decided to spend the Christmas 2010 holiday in Syosset, Long Island with the plaintiff's parents.   As part of that trip, they planned a weekend in New York City, leaving Molly with her maternal grandparents.   On December 28, 2010, the parties checked into their hotel and then headed out to Rockefeller Center.   What happened there is disputed between the parties.   The result, however, by any account was jarring and bizarre.   The plaintiff stated he was slipping and reached out for the defendant to stabilize himself and the defendant then said that he hit her.   The defendant said that the plaintiff did hit her not as an assault but as an expression of frustration.   Which story is the truth is not possible for the court to discern.   The resulting conduct however was this:  the parties then aborted their trip to Rockefeller Center;  hours later the plaintiff came back to the hotel and told the defendant to go to her parents and stay there with the baby while he went back to Stamford to figure out if he wanted to stay married.   He left her in the hotel room with that message.   That was December 28, 2010.   On January 9, 2011, the plaintiff informed the defendant that the divorce papers were coming and she was served a day later in Syosset.

The decision to move toward divorce had been made by the plaintiff long before January 2011.   The divorce was a total surprise to the defendant.   She was aware of their marital problems but not that it was so difficult that the plaintiff was contemplating divorce.   Unbeknownst to her in December, the plaintiff interviewed several divorce lawyers.   The defendant moved the mailing address of the parties' joint investment accounts to his family's home in Ridgefield, Connecticut in 2010.   He also liquidated the accounts at that time without informing the defendant.   This surreptitious planning was done in flagrant disregard of the parties' joint ownership of these funds.   The defendant learned of this behavior on January 11, 2011.

All of this conduct, coupled with the request for the defendant to quitclaim the home in October 2010, left the defendant to feel betrayed and distrustful of the plaintiff, fearing that he had set this entire dissolution up on terms that he wanted to control and that he had lost his commitment to their marriage at least by the fall of 2010.   The plaintiff portrays the defendant as inappropriately suspicious of him, pointing to the fact that he split equally between them the funds that he liquidated.   The court finds the conduct inappropriate and a violation of the automatic orders.   The funds were liquidated and divided by him after his lawyer had signed the complaint.   Therefore, at that time, he was bound by the automatic orders.   He decided half each was the way to divide things, thus removing the funds from the reach of the court.   There is no effective remedy for this conduct.   The defendant acquiesced in the division and each operated accordingly.   What is meaningful in this vignette is that it illuminates and lends support to the claims of the defendant that the plaintiff was controlling in his behavior and, indeed, has remained so in their custodial dealings.   Under the cloak of reasonableness, the plaintiff imposes his will.

The defendant reacted to these withdrawals by transferring joint funds of $2,419 that the parties were holding for their daughter, to an account in her name.

The defendant has remained at her parents' home since January 2011.   She is currently taking course work for a paralegal program.   She is not employed.   The defendant had large sums of money that she withdrew from the bank during the pendente lite stage that became missing in action.   She indicated that they were largely used to pay her parents back for funding her attorney fees during the litigation and other associated costs.   The money was kept in some sort of cash box that she never looked in.   The box was shared with her parents.   The testimony regarding this box was bizarre.   If it was true, it described a strange way of communicating, or not, about money with her parents.   More likely it was a constructed explanation of a practice she had during this case of trying to deprive her husband (and his lawyers) of knowing what she was doing with money.   In layman's terms it could be seen as paranoid behavior on the one hand or an extreme step to safeguard herself from her perception of the reach of her husband's control, done in reaction to her sense that he was not to be trusted and had betrayed her in his hiding of money.   Whichever is the more plausible explanation, it does not really matter, for both are bad indicators for these two individuals who must work together.

The plaintiff remains at the Stamford home.   Working at Coupons.com he earns a base income of $125,000 per year.   The balance of his income is commission based.   He is paid his commissions on a quarterly basis.   The commission income varies which has resulted in a swing from year to year.   His gross income in 2010 was approximately $164,000, 2011 was $282,133 and in 2012 was $366,695.   To date of the trial, he had only received one of his quarterly commission checks, which was $32,750.   If that sum were annualized, which is merely an example since there is no evidence that the first quarter is predictive of the rest of the year, it would render approximately $130,000 in gross commissions.   This would land his income marginally south of his 2011 income.

The only substantial assets that remain are the parties' retirement funds.   The defendant's Fidelity IRA valued at $183,652 is a rollover of her retirement funds from all of her premarital work.   The plaintiff's Alliance Data 401k valued at $151,912 results from the appreciation of premarital retirement funds which were worth $50,000 at the time of the parties' marriage (September 30, 2007).   The defendant's Commonwealth IRA valued at $153,000 is the result solely of pre-marital contributions worth $138,000 at the time of marriage.   During the marriage the plaintiff has accrued $61,713 in his Coupons.com 401K. He continues to contribute weekly $326, which is matched by the company with a cap of approximately $16,000 yearly.

The home in Stamford was purchased by the plaintiff pre-maritally for $529,000 in November 2005.   The defendant believes the home is worth $530,000.   An appraiser, Michael Gold, testified as to the value of the real estate.   The home has suffered loss of value.   The court found his testimony and his work in his written appraisal persuasive as to the value of the marital home.   At the time of this trial it had a value of $400,000 with a $379,072 mortgage.   This leaves a modest equity of $20,928.

It is noted that the plaintiff is seeking 60 percent of all of the parties' retirement accounts, 100 percent of his stock options from work and 100 percent of the home.   He is agreeable to refinancing that to take the wife's name off the mortgage.

The Child Support Guidelines provided by the plaintiff forecast income of $155,700 gross per year which renders presumptive child support to be paid, if the father is the payor, of $316 per week, based upon his base salary.   That sum represents 16.03 percent of his net under the Guidelines.   As indicated above, the plaintiff makes a significant amount of his income from commissions.   Guidelines child support based upon his 2012 full year income (as offered by the defendant) is $473 per week, which is the maximum under the Guidelines schedule for $4,000 weekly net income, not his $4,520.   The percentage is 11.83 percent.   The current year income for the plaintiff to the end of the year annualized is $4,903 (his base plus commissions to date annualized, divided by 52) per week.   The presumptive Guidelines for that gross income is $416 per week.   The court has considered the deviation criteria applicable to shared parenting and finds there is no basis to deviate here.   The plaintiff has not proven that the defendant would have sufficient funds to meet the child's needs if the court were to deviate,¹ and that the custodial arrangement substantially reduces the child's needs with her mother.   Guidelines § 46b–215–3(b)(6)(i) and(ii).

The defendant is seeking six years of alimony at the rate of $10,000 per month.   She is also seeking the sale of the Stamford home with an equal split of the proceeds, approximately 62 percent of the retirement funds, and one-half of the stock options.   Each seek other related orders and each seeks Guidelines child support from the other.

The plaintiff does not think that he should be ordered to pay periodic alimony to his wife.   Instead he believes that a lump sum order of $100,000 will be sufficient to meet her needs.   He intends to fund this from her retirement funds.   He points to these funds as a source of money to finance a relocation of the defendant back to Connecticut.   If she were to use the money for that, it would deplete its availability as a substitute for spousal support.

“General Statutes § 46b–82 describes circumstances under which a court may award alimony.   The court is to consider these factors in making an award of alimony, but it need not give each factor equal weight ․ As long as the trial court considers all of these statutory criteria, it may exercise broad discretion in awarding alimony.”  (Internal quotation marks omitted.)   Hughes v. Hughes, 95 Conn.App. 200, 210, 895 A.2d 274, cert. denied, 280 Conn. 902, 907 A.2d 90 (2006).

The defendant had left her employment to be an at home parent.   Alimony for her should be rehabilitative.   However, no evidence was adduced as to whether she can successfully re-enter that job market.  “The traditional purpose of alimony is to meet one's continuing duty to support ․ [C]ourts have begun to limit the duration of alimony awards in order to encourage the receiving spouse to become self-sufficient,” (Citations omitted;  internal quotation marks omitted.)  Roach v. Roach, 20 Conn.App. 500, 506, 568 A.2d 1037 (1990).   “[U]nderlying the concept of time limited alimony is the sound policy that such awards may provide an incentive for the spouse receiving support to use diligence in procuring training or skills necessary to attain self-sufficiency ․ A time limited alimony award generally is for rehabilitative purposes but other reasons may also support this type of alimony award.”   (Citation omitted;  internal quotation marks omitted.)  Ippolito v. Ippolito, 28 Conn.App. 745, 752, 612 A.2d 131, cert. denied, 224 Conn. 905, 615 A.2d 1047 (1992).”  Marmo v. Marmo, 131 Conn.App. 43, 47, 26 A.3d 652 (2011).

The guardian ad litem's fees of $41,617.75 up until that last day of trial are approved.   For the last day, she is also awarded fees of $3,000 for a total due her of $44,617.75.

The defendant is currently in training to be a paralegal.   She should receive sufficient spousal support to permit her to educate herself in the field and then re-enter the employment market successfully so that she can be self-sustaining.   No evidence was adduced as to how long this will take.   In her own claims for relief she seeks six years of alimony.   This period of time is not anchored to any event or reasoning.   Alimony for three years is sufficient for her to finish her education and establish herself.   If the plaintiff had sought a lesser exposure for alimony, it was incumbent on him to provide evidence that she could be self- supporting in a lesser period of time.   He did not.   The defendant currently lives with her parents.   Without alimony she will not be able to transition to living independently and gain a secure foothold in her former or new sought employment field.

Custody problems emerged early in the pendente lite period.   It would serve no purpose to detail them.   Suffice to say that they were punctuated by the following recurring events:  The defendant continually second-guessing in critical language the basic care of the child by her father, and, whether her father was having his mother (or others) take over the care instead of him doing it.   Ironically, the defendant took the position that either he or she should be caring for the child, not third parties, even though she was critical of his care.   The plaintiff was continually pressing the defendant to return to Stamford with the child and emailing her with self-righteous explanations for his conduct (like terminating evening phone calls) in a controlling manner.

As the custody issues devolved it became clear that an evaluation was needed to assist the parties and the court.   Because the parties live approximately a ninety (90) minute drive away from each other (with normal traffic) they sought an evaluation of custody from the designated experts that included an examination and recommendation to address the geographic disparity.

The parties first requested the court to order that Dr. Stephen Sichel perform a psychological child custody evaluation regarding the best interest of the child and recommendations regarding the geographic distance which the parties' counsel referred to as a relocation issue.   He did so.   He clinically interviewed both parents and administered numerous psychological tests to the parents.   He found that Mr. Fagan tested in the normal range.   In the interviews he found Ms. Fagan was still dealing with the shock of the dissolution and found her to have anxious and depressive symptoms.   Other than that, he did not find her testing to be notably elevated or a matter for concern.   His test data of the mother is consistent with someone who feels vulnerable and under attack, which is how the defendant articulated her position regarding how the divorce came and the plaintiff pushed aggressively for everything he wanted and tried to paint a picture of her as an alcoholic and incapable parent.

Dr. Sichel made no specific recommendation as to which parent should move.   It was more important that they acted to substantially reduce their geographic distance from each other.   Further, because of the difficulties the parents had in communicating and diffusing their anger with each other, the evaluator recommended that the parties work with a parenting coordinator for help in resolving disputes about Molly's care, as they arise.

After the completion of Dr. Sichel's work, the plaintiff sought another psychological evaluation on the issue of relocation, dissatisfied with the recommendation of Dr. Sichel as incomplete and non-responsive.   The defendant sought a family relations study only.   Ultimately a second psychological evaluation on this issue was ordered by the court.   It was performed by Dr. Linda Smith.   Dr. Smith reviewed Dr. Sichel's test data, performed different tests of her own and clinically interviewed the parties.   The most significant difference in their work focused on their respective observations and conclusions about the mental status of the defendant.   Dr. Sichel did not find her thought-impaired or suffering from reduced reality testing.   Dr. Smith observed pressured speech, impulsivity in the plaintiff and an inability to filter her hostile statements about the plaintiff.   Based upon some of her test data,² her interpretation of Dr. Sichel's test data and her observations Dr. Smith concluded that that it was highly likely that the defendant suffered from significant reality impairment and likely had a cycling mood disorder with severely reduced reality awareness.   These findings were made notwithstanding normal data for both parents on the personality assessment test she administered.   Further, notwithstanding no evidence to support it (except the plaintiff's assertions), Dr. Smith opined that it was likely that the defendant was at risk for alcohol abuse.

Dr. Smith recommended that the defendant treat with a psychiatrist familiar with mood cycling disorders.   This is precisely what Ms. Fagan did.   She began treating with Faiq Hameedi, a psychiatrist in New York. Dr. Hameedi's major work is with patients with cycling mood disorders (commonly called bipolar conditions).   It is his conclusion that the defendant does not suffer from such a disorder;  he has never observed manic behavior by the defendant.   Instead, he found her to have an adjustment disorder with mixed features.   His major treatment is focused on regulating that behavior and assisting the defendant in employing strategies to control both her anxiety and her anger toward the plaintiff.

The defendant's treating psychologist, who referred her to Dr. Hameedi, is also assisting in dealing with her anxiety and anger.   There is no evidence as to the quality of that work.   It is noted that this particular psychologist wrote a report which made judgments about the plaintiff's mental fitness and recommended custody to the defendant and the author had never met the plaintiff or the child.

The plaintiff sought to undermine the credibility of the testimony by Dr. Hameedi unsuccessfully.   The impeachment testimony dwelled on the fact that the defendant asked him for a report early in his treatment.   This does not undermine his findings.   In his own understated way, in testimony, Dr. Hameedi emphasized that the defendant's anger toward the plaintiff is unhealthy for their relationship as parents and that she needs to learn to work with him.   The court found Dr. Hameedi credible.

The guardian ad litem in this matter also testified.   She recommended sole legal custody to the father and that the child live in Connecticut.   She did believe that both parents should be involved in significant parenting time with the child.   Having observed both parents and reviewed the many emails, it was her view that the mother wants to facilitate the father's relationship with the child but her anger overcomes this desire.   She was satisfied that the defendant will follow court orders;  her concern for the future is that the defendant would continue her negativity toward the plaintiff and it will bleed over to the child.   On the other hand she felt that the father would encourage and facilitate the child's relationship with the mother.   The court does not agree with that conclusion.   The plaintiff sees the mother as ill and bad for the child and will restrict her contact if he thinks it appropriate.   He continues to exercise control even in parenting issues.   For instance, the child was put in the middle of his desire to have her hair cut and the defendant's desire for it to stay long.   So, he unilaterally cut the hair and then said it was only a little and because the bangs in Molly's face were “causing her stress.”   When unable to agree, he did what he wanted.   This had the effect of further eroding the mother's trust in him.   The guardian found the plaintiff to be a controlling person.

The guardian has noticed that the plaintiff also withholds information at times from the defendant about the child.   He does it because he does not want to be quizzed by her.   On the other hand, when the mother finds out that he has withheld information from her, it plays into confirming that he is not to be trusted.   This dance is done by both of them, not just the mother.

Because the mother speaks about the father (with a pseudonym) in the presence of the child, and because her anger toward him is not hidden from the child, the guardian agrees with Dr. Smith that the child is at risk for alienation from the father by the mother.   The court concurs with these concerns.   However, if the more resilient parent, the father, makes the move rather than the more brittle parent, the mother, the parents will be in proximity and a true shared custody arrangement will ensure that effectively the child has a strong and enduring attachment to her father.   If the court were to require the mother to move in order to have a shared custody arrangement, the court does not think it likely that she will make the move without severely taxing her emotional resources.   Her adjustment disorder as diagnosed by her treating psychiatrist, causes her to suffer serious anxiety.   Moving away from her nuclear family will undoubtedly create anxiety for her.   The child, who has a significant relationship with both parents, needs them to provide the most they can offer by being emotionally secure themselves.   A move by her father will be economically unpleasant for him, but he possesses the inner emotional resources and mental health to accomplish it with resilience.

The guardian ad litem never observed the affect that Dr. Smith observed in the defendant of pressured speech and reality impairment.   Further, the guardian ad litem believes that the defendant will work with the plaintiff in following through on lining up a child psychologist for treatment of the child as Dr. Smith suggested.   The guardian noted that the mother has followed all of Dr. Smith's recommendations even though they have not been court ordered.

The guardian also noted that the parties have not litigated custody issues pendente lite and follow court orders.   She also noted that while the mother continued to provide daily emails as was agreed to and their practice to the father about Molly while in her care, Mr. Fagan stopped doing this in mid-November.   While he did it, once again so as to not be criticized, it meant that four days passed with no communication to the mother regarding this toddler.

The guardian acknowledged that both parents can meet the child's needs, will follow court orders, live in a suitable home and will provide stability for the child.   She finds both parents thoughtful regarding the child's best interest.   The fork in the road is that the guardian finds that the anger and mistrust of Ms. Fagan toward her husband may overcome that as it has on isolated incidents during the pendente lite period.   She believes the father is more capable of harnessing this for himself.

The anger of Ms. Fagan toward her husband is palpable.   The record is full of multiple incidents in which she has been rude to him and denigrated him.   There were incidents of bizarre expressions of anger early in the process of this dissolution including her cutting up of every family photo that had her and the plaintiff in them.   Her naming the plaintiff as a contact in her phone as “Deadbeat Fagan” was an immature and overt expression of anger.

Her distrust of him and anger at him for redirecting the mail regarding their investments led her to make an imprudent complaint to Richard Blumenthal which resulted in the plaintiff being investigated for (and cleared of) mail fraud.   Despite the clear inappropriateness of it, she parked on his lawn and utilized her former neighborhood girlfriends to ‘spy’ on him and report to her.

In other instances she has used obscene and derogatory names for him, which has occurred in front of the very young child.   In fact, the plaintiff has never been found in contempt, or the like, for failure to make any family support payments.   The defendant has been arbitrary and difficult at times in dealing with him on access issues.   She has refused to allow any make-up access time.   On occasion she has scheduled doctor's appointments for the child at a difficult time for the plaintiff.

Perhaps the most disconcerting of the defendant's behavior toward the plaintiff has been her refusal to engage in conversation (other than by e-mail) with him for two years.

While there has been a thread in many of her e-mails revealing a respect for the importance of two parents in Molly's life, much of her conduct has belied that.   She has continuously challenged the ability of him to parent or make prudent decisions.   Writing on the child's shoes (so that he would buy new ones) and duct-taping books are overt acts of hostility to him directly over parenting issues.   Her assumption that he cannot safely select foods or make other day-to-day decisions without her inquisition and direction through e-mail does not portend well for her respect for him as a parent in the future, or the facilitation of the child's relationship with him.   She insisted on a well-child check by the police when the plaintiff was with the child visiting his family in Pennsylvania.   This was disruptive, hostile and aggressive behavior.

The plaintiff's conduct and behavior has received considerably less scrutiny than that of the defendant.   The court found the continuous reminders in e-mails from the plaintiff to the defendant that he was the reasonable parent, that he only wants the best for their daughter to have been self-serving and written with an eye on this litigation.   While Ms. Fagan utilized little filter in her communication, Mr. Fagan's was all gauged to present himself in the most positive light.   Dr. Sichel observed him as difficult and angry at the defendant.   The child's pediatrician observed that both parents were responsible for ugly behavior.   The closure of the investment account and distribution of the funds by Mr. Fagan was an overt exercise of control by him.   Mr. Fagan needs to understand his role in the communication difficulties with the defendant.   His manner of dealing with her sets her anger off the more completely.   He always manipulates to the high ground leaving her little room but to express herself in the low ground.

The distrust of Ms. Fagan toward Mr. Fagan will take a very long time to repair.   This court is not competent to render an opinion as to which psychological profile of the defendant (Sichel or Smith) is the proper one.   The evidence, on its own, demonstrates that she struggles with her anger toward the plaintiff, that she has not been accommodating of his role as a parent on a sustained basis and that she has regarded that role as secondary to hers.   These behaviors are extraordinarily concerning because both parents, operating in their own silos are competent and caring parents.   It is the mother's interaction with the father that is toxic for the child.   Further, the unbridled hostility that she has toward him will inevitably tax the child's view of her father over time as she matures and is more aware of more nuanced matters.   It is necessary that the child's contact with her father be significant and sufficient to ensure that this does not occur, even if the defendant is unable to repair herself.

Not only are both parents excellent caretakers of their child, each is an appropriate decision-maker for the child.   It is, then, the conduct described above and the need then for healthy communication, whether orally or in writing, that this court must strongly consider in determining the nature of the legal custody orders.

The plaintiff pleads for an order of sole legal custody.   Although his claims for relief do not reflect it, he assures the court that he will consult with the defendant and then make the decisions he believes are right.   He seeks to limit the contact of the child with her mother.   Notably, the plaintiff seeks to limit significantly the time of the child with her mother to a forty-eight (48) hour period every two weeks.   If the mother were to move to Connecticut he would supplement that with a midweek overnight and an additional dinner weekly.

The defendant seeks an order of joint legal custody and primary residence of the child with her in Syosset, New York. If the father remains in Connecticut she recommends an order of three out of every four weekends to him.   If the mother's desire to relocate the child is denied upon her moving to Connecticut she recommends a shared parenting schedule.   Until her move to Connecticut she seeks to have the current parenting schedule stay in effect.

“Section 46b–56(b) grants the court broad power to issue orders regarding the custody of the minor child.  Section 46b–56(b) specifically authorizes a variety of orders regarding custody, including provisions for consultation and “any other custody arrangements as the court may determine to be in the best interests of the child.”   The definition of joint custody in § 46b–56a(a), which is useful for, inter alia, interpreting agreements and applying presumptions, does not foreclose options authorized by § 46b–56.   The court's decision regarding joint custody of the parties' minor child specifically provided the parties with a method of joint responsibility for the major decisions regarding the minor child.   The court's memorandum of decision stated that the parties were to attempt to agree in good faith to make decisions regarding the minor child.   If the parties were unable to reach an agreement, they were to attempt to resolve the disagreement through mediation.   The defendant was to make the ultimate decision regarding any disagreement between the parties only in the event that mediation failed to resolve their dispute.   The court's decision did not prevent the plaintiff from exercising a degree of decision-making power with regard to the minor child but, rather, contemplated and provided the parties with a solution for the occasion when, despite good faith and multiple attempts to reach a decision, the parties were stymied.   Nothing in §§ 46b–56 or 46b–56a prevents the court from so ordering.”  Desai v. Desai, 119 Conn.App. 224, 230, 987 A.2d 362 (2010).

Since both of these parties are able decision-makers, separately, there is no reason for sole custody.   Indeed, when pressed during the pendente lite period and in clinical interviews by the evaluators, their goals, hopes and child-raising values for their daughter are very similar.   However, because of the defendant's inability to prevent her anxiety and anger from clouding her judgment when she deals with the plaintiff, at times, he should be charged with the responsibility of making a decision when there is an inability of the two of them to agree after substantive and real consultation with each other.

The second question before the court is how to fashion a parenting access schedule that represents what is best for this child and takes into consideration her real need for a strong and continuing relationship with both parents, week in and week out.   The plaintiff has the means to relocate, the defendant does not.   The plaintiff is emotionally far more resilient than the defendant.   The defendant's immediate support system of her parents would be best preserved if she could stay in Syosset.   The plaintiff's only reason not to move is economic—that he will lose a lot of money on the house.   His other reasons had no gravitas:  that if he were to lose his job, his networking contacts are in the Stamford area (his job is stable);  there is a good neighborhood with friends in Stamford (the child is very young and tied to her parents at this age, not her friends;  there are good neighborhoods in Syosset);  that if the child lives in New York the experts here will need to be replaced (they should not be needed after this case).   The child has no special needs that would require her to stay with her pediatrician in Connecticut.

On this question, the court is motivated to find a living arrangement for the child that maximizes the potential each parent has to offer her.   Setting up an arrangement of parenting that requires the mother to move to have significant contact with her child is counterproductive.

In regard to the custodial orders that follow it is essential that they be all complied with inasmuch as the best interest of the child requires their integrated adherence.

The court orders:

1. Dissolution of the marriage.

2. Joint legal custody of the minor child.   In the absence of the ability of the parties to agree on an issue, after reasonable attempts to bridge their differences, the parties shall confer with their co-parent counselor to seek to reach an agreement.   Only after both processes fail, may the father make the final decision.   If an issue is an emergency (medical), the parent who has the child in their care shall immediately make the decision and inform the other parent of the situation immediately.   Each parent shall make the day-to-day decisions for the care of the child while she is in her care without the other parent interfering.   All health appointments shall be available for both parties to attend.   Until and unless the parties agree in a signed writing to another methodology for scheduling routine care, it shall be done such that the appointment is on each parent's time on an alternating basis.

3. Both parents may attend all events for the child to which parents are invited, even if it is not that parent's parenting time with the child.

4. Upon the father's relocation to a home within twenty (20) minute driving time of the mother's home in Syosset, the parties shall share parenting time as follows:  the father shall have parenting time every Monday and Tuesday and the mother shall have parenting time every Wednesday and Thursday.   Said times shall commence after school or 11:30 am if the child is not in school.   The parent who has the child shall drive her to the other parent's home if there is no school.   The parties shall alternate weekends from Friday at 11:30 am or after school until Monday morning at school (or 11:30 am if there is no school and it was the mother's weekend).

5. Until the father's relocation to a home within twenty (20) minute driving time of the mother's home in Syosset, the parties shall share parenting time as follows:  until the child is in school the parties shall remain on the current schedule.   Once (pre-) school starts in Fall, 2013, the father's parenting time if he has not relocated as specified here shall be three weekends per month (weekends 1, 2 and 4) from after school on Friday until 5 pm on Sunday and every Wednesday from after school until 7 pm.

6. If the mother moves from her parents' home in Syosset, she shall not move the child's residence outside of Syosset unless both parents agree in a signed writing or a court of competent jurisdiction permits it.

7. Each party shall be entitled to two weeks of uninterrupted vacation time during the summer school vacation.   Said time shall not be consecutive weeks.   A week is measured as seven (7) days, which includes that parent's weekend under the weekly schedule.   By March 15th of each year, the first parent (mother in odd years, father in even years) shall provide the other parent with written notice of the vacation time and a brief summary of any travel plans, if any.   Such summary must include all commercial travel schedules, visiting locations, access phone contact while away and a general itinerary of the vacation plans.   By April 15th of each year, the second parent (father in odd years, mother in even years) shall provide the other parent with written notice of the vacation time and a brief summary of any travel plans, if any.   Such summary must include all commercial travel schedules, visiting locations, access phone contact while away and a general itinerary of the vacation plans.   For 2013, each parent shall be entitled to one such vacation week and the mother shall give her notice within two weeks of this decision and the father one week later.

8. Once the child is in full day school, her winter vacation shall be with her mother in odd years and her father in even years;  her spring vacation shall be with her father in odd years and her mother in even years.   If the school system only has one such vacation it shall be alternated with the mother having the odd year and the father the even year.   These vacations are defined as seven (7) days to include the parent's weekend.

9. The child shall be with her father every Father's Day, irrespective of whose weekend it is on.   The child shall be with her mother every Mother's Day, irrespective of whose weekend it is on.   Said day access shall be from 9 am of the day to 7 pm.   The parent who is celebrating the day shall do all of the transporting for the day.

10. The parties shall celebrate holidays with the minor child on the following schedule.   The parent shall have the child with him/her from 9 am to 7 pm on the holiday listed, except on Christmas Day and Molly's Birthday.   On those two days the child shall be with the parent who has the holiday as listed below from 9 am (or after school if it is her birthday and a school day) to 3 pm and then with the other parent from 3 pm until 7 pm:

Good Friday—mother even/father odd years

Easter—mother odd/father even years

Memorial Day—mother even/father odd years

Fourth of July—mother odd/father even years

Labor Day—mother even/father odd years

Thanksgiving—mother odd/father even years

Christmas Eve—mother even/father odd years

Christmas Day—mother odd/father even years

Molly's Birthday—mother even/father odd years.

Halloween—mother odd/father even years

11. Regarding all of the above parenting schedules:  holidays pre-empt both vacations and weekly schedule;  vacations pre-empt weekly schedule.

12. The parties shall immediately engage in co-parent counseling with a doctorate level mental health professional to address their communication difficulties arising out of their hostility toward and lack of trust in each other.   This provider shall have access to all of the treatment records of both parties' mental health providers (and evaluators-Sichel and Smith) historically and prospectively, if so desired.   This provider shall be paid 75 percent by the father and 25 percent by the mother.   The co-parenting counselor shall continue to work with the parents until and unless s/he releases them from further counseling or an order of the court.   Said counselor shall be selected by the parties jointly within fourteen (14) days;  if they are unable to do so the guardian ad litem shall select the counselor immediately at the conclusion of that fourteen (14) day window.   Priority shall be given to counselor who accepts the family health insurance, if there is such coverage.

13. For purposes of school residence and the like the child shall live with the mother in Syosset, New York.

14. Each parent shall be responsible for child care of Molly during their parenting time if that parent is unavailable to care for the child.   If either parent will be away overnight during that parent's parenting time, that parent shall offer the other parent to take over for the time that s/he is away.

15. The plaintiff shall pay to the defendant child support of $416 per week, The parties shall each pay one-half of any extra-curricular activities for the child that they agree on.

16. The plaintiff shall pay to the defendant periodic alimony in the amount of $5,900 per month (due on the 1st day of each month, pro-rated for the month of June 2013) for a period of three years, unless either party sooner dies or the defendant remarries.   The alimony is non-modifiable as to term;  it is modifiable as to amount pursuant to the law of the state of Connecticut.   To provide each party an opportunity to secure themselves financially, during the duration of this alimony order, the plaintiff may not seek a modification based upon the first $35,000 of the defendant's income, based upon an annualized calculation of her earned income.   Similarly, the defendant may not seek a modification of the alimony based upon income of the plaintiff's in the amount of earned income of $245,000 annualized.

17. For as long as either party bears a financial liability to the other for the minor child or under the terms of the post majority educational support provisions of this judgment, they shall exchange the first page of their federal income tax return and copies of all W–2 and 1099 forms issued to them.   They shall redact their Social Security Number from the materials and may also redact any income earned by a spouse.   This exchange of income information must take place no later than February 15th of the year following the year in which the income was accrued.

18. The father may claim the child as a dependency exemption in even years so long as he is current in his child support;  the mother may claim the child as a dependency exemption in odd years.   They shall sign and provide the necessary IRS form, 8832 for the same upon presentation by the other parent.

19. The plaintiff shall provide $450,000 life insurance made payable to the defendant as beneficiary so long as he has an alimony obligation.   He may reduce the face amount of that coverage by $70,000 yearly if he is current in his alimony and the alimony order has not been increased.

20. The plaintiff shall provide $500,000 life insurance made payable to the defendant as custodian for the child so long as he has a child or post-majority education court-ordered obligation.

21. The defendant shall provide the plaintiff proof annually of the insurance coverage ordered herein.

22. The plaintiff shall maintain the minor child on his health insurance.   The defendant's health insurance, including COBRA, shall be paid by her.

23. The CHET funds for Molly ($17,876) and the Bank of America UTMA for her ($345) shall be titled in both parents' names such that neither may withdraw the funds on one signature alone;  both shall be required.

24. The defendant shall transfer to the plaintiff by quitclaim deed all of her right, title and interest in and to the home in Stamford, Connecticut within twenty-one (21) days.   The plaintiff shall either refinance the home to remove the defendant from the note and mortgage within ninety (90) days or actively list the property to market and sale.   If the property is listed for sale he shall be excused from the refinance obligation for 180 days at which point it shall be accomplished.   All said dates are measured from this date of judgment.

25. Each party shall pay their own legal fees and costs associated with this action.

26. The Court finds that had the parties remained an intact family, they would have financially supported their child in that child's post-secondary educational efforts.   The court shall retain jurisdiction over the post-secondary education expenses for the minor child pursuant to Connecticut General Statutes § 46b–56c.

27. The plaintiff shall remain the sole owner of his Alliance Data 401k free and clear of any claim of the defendant.

28. The defendant shall remain the sole owner of her Fidelity IRA free and clear of any claim of the plaintiff.

29. The parties shall each own one-half of the defendant's Coupons.com 401k and Commonwealth IRA valued as of the date of dissolution, with any gains or losses thereon to date of transfer.   The plaintiff shall transfer the same to the defendant by roll-over (or if necessitated because of the nature of the instrument not known to the court by QDRO) within thirty (30) days.   The paperwork shall be prepared by the defendant.

30. The plaintiff is the sole owner of the 2008 BMW free and clear of any claim of the defendant and he shall indemnify and hold her harmless on the note thereon.   He also is the sole owner of all accounts on his financial affidavit, including the joint Bank of America account *5395 and all of the items in the marital home with the exception of those on schedule B of the plaintiff's affidavit.

31. The defendant is ordered the owner of the 1999 BMW 328i free and clear of any claim of the plaintiff, her bank accounts on her financial affidavit (with the exception of the joint Bank of America account granted to the plaintiff) her Fidelity and Vanguard accounts, the money that may remain in the cash box at her parents' home, and the listed property on the defendant's financial affidavit.

32. The defendant is ordered the beneficial owner of 15,000 of the Coupons.com stock options granted the plaintiff on February 26, 2010 and 5,000 of the stock options granted the plaintiff on April 18, 2011.   All other stock options and restricted stock units owned by the plaintiff are his solely.   The defendant shall determine whether she wants the plaintiff to exercise her options on the vesting dates and notify him writing between 9 am and 10 am, by e-mail, on those dates.   The plaintiff shall then immediately exercise the options and turn over to the defendant the proceeds, net of costs of exercise, sale and all taxes.

33. As additional property settlement, the plaintiff shall pay to the defendant $30,000 on or before August 15, 2013.   If it is not paid in a timely manner for whatsoever reason, the debt shall bear interest at the rate of 5 percent per annum from that date forward until payment in full:  this is not exclusive of such other remedies as the court may order if the matter is addressed in a motion regarding noncompliance.

34. Regarding the guardian ad litem's fees of $44,617.75, to the extent that the tax escrow account held by her remains, its entire value shall be applied to this obligation and then the balance shall be paid one-half by each party.   Said fees shall be paid in full within ninety (90) days.

35. The parties shall each execute such paperwork as is necessary to effectuate these orders.

By the court,

MUNRO, J.

FOOTNOTES

FN1. The parties will have shared parenting when (and if) the plaintiff moves in sufficiently close proximity to make such an arrangement feasible..  FN1. The parties will have shared parenting when (and if) the plaintiff moves in sufficiently close proximity to make such an arrangement feasible.

FN2. Smith utilized the Rorschach among other tests.   She stood by its validity in custody cases notwithstanding its criticism by Sichel and the authors of an article placed in evidence under the learned treatise rule.   This court does not need to reach the question inasmuch as there was bountiful evidence from which to determine the issues relating to custody.   Further, the question was not squarely placed before the court because a Porter hearing was not requested..  FN2. Smith utilized the Rorschach among other tests.   She stood by its validity in custody cases notwithstanding its criticism by Sichel and the authors of an article placed in evidence under the learned treatise rule.   This court does not need to reach the question inasmuch as there was bountiful evidence from which to determine the issues relating to custody.   Further, the question was not squarely placed before the court because a Porter hearing was not requested.

Munro, Lynda B., J.