Luis–Fernando Lopez v. Elizabeth Rosa (2013)

MEMORANDUM OF DECISION

Memorandum of decision regarding defendant's motion for modification (178.10), plaintiff's motion for modification (179), defendant's motion for contempt (178) and plaintiff's motion for contempt (181).

A review of the record reveals that the parties are the parents of three minor children, Chantelle–Marie born August 9, 1999, Adrianna born December 16, 2000 and Luis–Fernando, II born November 15, 2004.   This matter was instituted in 2006 and the parties have been litigating throughout the ensuing seven years.

The present order is that the parties enjoy joint shared custody of the children and that the children alternate spending one month with each parent while spending weekends with the parent with whom they are not spending the week days.   The parties appeared before the undersigned for a contested hearing on October 4, 2013.   The plaintiff was self-represented and the defendant was represented by counsel.   The Guardian ad litem appeared and testified.

The court has fully considered the criteria of General Statutes §§ 46b–84, 46b–56, and 46b–62 as well as the evidence, applicable case law, the demeanor and credibility of the witnesses and closing argument in reaching the decisions reflected in the orders that issue in this decision.

FACTUAL FINDINGS

The court finds that the following facts were proven by a preponderance of the evidence:

1. There are three minor children born to the parties;  the girls are 13 and 14 and the boy is 8.

2. Both parents are appropriate, loving and stable.

3. The father is remarried.   For several years up until October 22, 2012, the mother had only limited daytime visits and the father had primary custody.   The father views himself as the patriarch of this extended family.

4. On October 22, 2012, the parties entered into the existing parenting plan whereby the children would alternate one month on and one month off between their parents and spending the weekend with the parent who did not have them during the week.

5. The father has shown himself to be an excellent parent and takes his responsibilities with great concern.   In fact, historically, he has been the primary residential parent and the mother had limited visitation.

6. The present parenting plan is not working well.   The parties have often failed to consult or communicate with each other or engage in joint decision-making for major decisions, significant events, appointments for doctors and dentists and therapy.   The children appear to be in turmoil due to the parents' inability to communicate and cooperate.   The older daughter did not know where she was going to attend school this year until the last minute causing her to miss several days of “new student orientation.”   The younger daughter is already anxious that she will have the same experience.   The children are presently not in court-ordered counseling due to dysfunction between the parents.   Transitions between the mother and the father are late, often chaotic and stressful for the children.   In the father's own words after a recent basketball game “the kids were crying and very confused ․ traumatized.”

7. The girls have expressed consistent and definite preferences to reside with the mother but to visit with the father regularly.   The eight-year-old boy appears to be willing to go along with his older sisters and everyone agrees that the children should be kept together.   The girls also feel that the father does not give them sufficient privacy and has attempted to influence them regarding the outcome of these proceedings.

8. It is abundantly clear to the court that while the present parenting plan appears to be “equal” and “fair” to the parents, it is not serving the interests of the children.

9. The father requests, in his motion for modification that the parenting plan remain unchanged except that the Friday drop-off and pick-up take place at the home of the parents instead of at the school.

10. The defendant mother's motion for contempt alleges that the father has violated the court orders by bringing the children back late from their weekend visits, that the paternal grandmother has been coming to the school regularly to eat lunch with the children without the mother's consent, that the father brought the oldest child to a high school entrance examination when it was “her turn” to do so, that the father has interfered with their ability to use their telephones to call their mother during the father's parenting time and by otherwise interfering with the mother's parental rights.

11. The court finds that in fact, the father has interfered with the children's ability to use their telephones to call their mother during his parenting time and will address that problem in its orders.   The court stops short of finding the father in contempt but will consider an appropriate sanction if such actions recur.

12. The plaintiff father presented no evidence in support of his motion for contempt and therefore the motion is denied.

13. The mother's financial affidavit shows reasonable weekly expenses of $846 per week and no debt.   The court can only conclude that she has an earning capacity or actual earnings of $800 per week net.

14. The father's finances and financial affidavits are not credible.   He shows recurring weekly expenses of $1,307 per week.   He owns a business or several businesses but failed and neglected to provide any financial information pertaining to them.   He admitted to owning six pieces of real estate, most of which are income producing but claimed that they produced no income.   The court finds that the father has an earning capacity of $1,000 per week net.

15. Based on the mother earning $800 per week and the father earning $1000 per week, the presumptive child support order from a child support guidelines worksheets is $246.

ORDERS

1. The parties shall have joint legal custody of the minor children.   The parties shall consult with one another on all major issues affecting the children's education, healthcare and extracurricular activities but if they are unable to reach an agreement, the mother shall have final decision-making authority.   Primary residence shall be with the mother.

2. Neither parent shall interfere with the telephone communication between a child and the other parent.   The children shall be permitted to carry and have access to their cell phones at all times and shall be able to make and receive calls from the other parent.   The mother shall bear the cost of the cell phones.

3. The mother shall contact Perspective Counseling Center Inc. to schedule regular counseling sessions for all three children.   The duration and frequency of the therapy will be at the advice of the counselor.

4. The parties shall no longer be required to attend co-parenting counseling.

5. Both parents shall inform the other of any routine healthcare, curricular and extracurricular appointments at least three days before they occur.   Whichever parent signs the child up for any activities shall give the other parent a schedule of all practices, events and contact information.   Both parents shall be included on all such activities as a point of contact.

6. During the school year, father shall have access with the children every Wednesday from 5:00 p.m. until 7:30 p.m. He shall pick the children up at mother's home and return them to mother's home.   Father shall have access to the children on alternating weekends from 5:00 p.m. Friday until 5:00 p.m. Sunday.   If the Monday after the father's weekend is a school holiday, father shall have access extended until 5:00 p.m. on Monday of that weekend.   Father shall provide the transportation.   Father shall have access to the children on alternating Mondays following mother's weekend from 5:00 p.m. to 7:30 p.m. and provide the transportation.   Unless otherwise agreed in advance, father shall have a 15–minute grace period to pick up the children after which time the visit is canceled.

7. During the summer, mother shall have access to the children from 5:00 p.m. the first Friday in July through 5:00 p.m. the second Friday in July and from 5:00 p.m. the first Friday in August to 5:00 p.m. the second Friday in August.   Mother shall be responsible for the transportation.   Father shall have access to the children from 5:00 p.m. the second Friday in July through 5:00 p.m. the third Friday in July and from 5:00 p.m. the second Friday in August through 5:00 p.m. the third Friday in August.   Mother shall provide the transportation.   In addition, father will have access to the children every Wednesday from 5:00 p.m. until 10:00 a.m. Thursday, father shall pick up the children at mother's home on Wednesday and mother shall pick them up at father's home on Thursday.   In addition, father shall have access to the children alternating weekends from 5:00 p.m. Friday until 10:00 a.m. Tuesday, father shall pick up the children at mother's home on Friday and mother shall pick up the children at father's home on Tuesday.   The balance of the access will be with the mother.

8. The parties shall subscribe to and utilize www.ourfamilywizard.com to maintain a shared calendar of the children's activities, the travel schedules of the parties and communication regarding the access schedule, medical, homework, school information and all other relevant information regarding the children.

9. The court finds that the hours incurred by the Guardian ad litem are reasonable and necessary but the court will allocate her hourly rate at $195 per hour rather than the requested $295 per hour for a fee of $3,100.50 from September 19 until October 6, 2013.   In addition, the Guardian ad litem had previous billings of 24.85 hours which shall be compensated at $195 per hour or $4,846.50.   The father necessitated a second scheduled hearing because he failed to attend the scheduled trial on December 20, 2013 (incorrectly assuming that having filed a motion for a continuance he was excused).   Moreover, the father has been less than credible regarding his finances, disclosing for the first time, during the trial the existence of his business (which he claims makes little or no money) and his ownership of six pieces of real estate.   For those reasons, the plaintiff father is ordered to pay the Guardian ad litem fees amount of $3,100.50 in its entirety +50% of the $4,846.50 or $5,523.75.   The defendant mother is ordered to pay 50% of the $4,846.50 or $2,423.25.   All said fees are due and payable within 90 days.

10. The following holiday schedule shall apply:

Christmas Father shall have access with the children odd years and mother shall have access with the children in even years from 3:00 p.m. on December 24 until 11:00 a.m. on December 25, and then from 5:00 p.m. on December 29 until 5:00 p.m. on January 1. Father shall have access with the children even-numbered years and mother shall have access with the children odd-numbered years from 11:00 a.m. on December 25 until 5:00 p.m. on December 29.   The parent starting his or her access shall pick the children up from the other parent's home.

Thanksgiving Father shall have access with the children in odd-numbered years and mother shall have access with the children in even-numbered years from 4:00 p.m. the day before Thanksgiving to 5:00 p.m. Thanksgiving day.   Father shall have access with the children even-numbered years and mother shall have access with the children in odd-numbered years from 5:00 p.m. Thanksgiving day until 5:00 p.m. the day after Thanksgiving.   The parents starting his or her access shall pick up the children from the other parent's home.

Easter Mother shall have access with the children odd-numbered years and father shall have access with the children in even-numbered years from 5:00 p.m. the day before Easter to 5:00 p.m. Easter day.   Mother shall have access with the children in even-numbered years and father shall have access with the children in odd-numbered years from 5:00 p.m. the day before Easter until 5:00 p.m. Eastern Sunday.   The parent starting his or her access shall pick up the children from the other parent's home.

11. The mother as primary custodial parent shall hold the children's passports in her possession and the father shall surrender them to her within 24 hours.

12. The parties shall share equally the cost of the children's extracurricular activities and private school.

13. Both parties shall maintain medical insurance if available at a cost not to exceed seven and half percent of their net take-home pay.   Otherwise, the parties shall utilize Husky.

14. The father shall pay child support in the amount of $246 per week based on the child support guidelines wherein the mother has a net take-home pay of $800 per week and the father has a net take-home pay of $1000 per week.   He shall pay 42% of any unreimbursed health care expenses.

BY THE COURT

Kenneth L. Shluger, Judge

Shluger, Kenneth L., J.