Margot D. Venero v. Julio F. Venero (2013)

MEMORANDUM OF DECISION

BACKGROUND

The following matters were heard by the court at a hearing which commenced on October 9, 2013, and was completed on October 16, 2013:

1. Plaintiff's Motion for Exclusive Possession Pendente Lite (Motion # 102).

2. Plaintiff's Motion for Custody of Minor Child Pendente Lite (Motion # 103).

3. Defendant's Motion for Custody of Minor Child Pendente Lite (Motion # 104).

FINDINGS

The parties reside in the marital home at 1000 Manchester Road, Glastonbury, Connecticut, with two minor children, one of whom (Samantha, born December 21, 2010) is the child of this marriage.   The other child is David (born March 27, 1999), who is the son of the plaintiff from a prior relationship with a different father.

The plaintiff wife is a nurse who works three to four twelve-hour night shifts weekly at the University of Connecticut Health Center, in addition to periodic overtime work.   The defendant husband is not employed, but he owns and manages three rental properties.   The parties share in the care of their child Samantha, with the defendant being the primary caretaker while the plaintiff is working or sleeping during the day after her shift ends.   The plaintiff cares for the child for much of the time she is not working and she nurses the minor child at least twice daily.

The marital home is a four-bedroom Colonial, with two full bathrooms on the second floor (one of which is in the master bedroom).   The first floor includes a family room, living room, dining room, and half bathroom.   The basement is finished and includes another full bathroom.   Title to the home is held by the plaintiff.

The parties' relationship has long been characterized by frequent arguments.   On one occasion in June 2011, the argument became physical, resulting in police intervention and the issuance of criminal protective orders against both parties (Plaintiff's Exhibit 3 and Defendant's Exhibit C).  Since that time there have been numerous calls to the police by the defendant, resulting in the police coming to the home.   However, since the June 2011 incident, there have been no further arrests of either party and no evidence of any further physical altercations.   The defendant claims the police calls are necessary for him to protect himself.   The plaintiff claims that the defendant keeps his cell phone at the ready to call police at the slightest provocation or to record her statements to him.   The defendant admitted using his phone for such recordings but offered none in evidence.

The parties' testimony differed markedly as to whether arguments or disparagement of each other occur in the presence of Samantha, and whether the pending divorce is discussed with her.   The plaintiff testified that the defendant calls her vulgar names in front of the child, and tells Samantha that he is going to get custody of her and take her away from the plaintiff.   While this testimony was categorically denied by the defendant, he did admit to communicating to the plaintiff through the child.   Considering all the testimony, the court finds that Samantha has to some degree been exposed to arguments, police visits, and discussion of adult matters, all of which would be upsetting to a child of her age.  (While he is not a child of this marriage, such events are likely to be upsetting to David as well.)

There was conflicting testimony about the parties' respective financial contributions to the purchase of the marital home and the payment of the mortgage and other household expenses.   The court does not consider these financial issues relevant to the present motions and therefore makes no findings as to them.

The parties' frequent bickering and the concomitant police visits are certainly not beneficial to the minor child.   However, the current home environment does not appear to be qualitatively different since the institution of the dissolution action from what it has been like for the past several years.   Despite this less than ideal environment, the court finds that both parents contribute in important ways to the care and well-being of Samantha on a regular basis, and that it is in the child's best interests to preserve her parents' ability to do so to the extent feasible.

ORDERS

On the basis of the foregoing findings, the court enters the following orders:

1. Plaintiff's Motion for Exclusive Possession Pendente Lite (Motion # 102)

The motion is denied, subject to the following orders:

a. The parties shall use and sleep in the following separate areas of the marital home:  the plaintiff wife shall have the exclusive use of the master bedroom and accompanying bathroom, and the defendant husband shall have the exclusive use of the finished basement including bathroom.

b. The parties shall share the use of the remainder of the residence but in the course of such use:

i.  Shall not, in the presence or within earshot of Samantha, argue, disparage each other, raise their voices unreasonably, or discuss adult matters including those relating to their divorce or the custody of the child;

ii.  Shall not communicate to each other through Samantha;  and

iii.  Shall not call the police to the home as the result of an argument or altercation with each other except in the case of a bona fide emergency.

c. In the event of the violation of the above orders the court reserves the right to reconsider its rulings on the motions decided on this date.

2. Plaintiff's Motion for Custody of Minor Child Pendente Lite (Motion # 103) and Defendant's Motion for Custody of Minor Child Pendente Lite (Motion # 104)

In light of the denial of Motion # 102 and both parties' continued residence in the marital home with the minor child, the parties' respective motions for custody are denied.   Insofar as it appears that the issue of custody of the minor child will be an issue in this case, the parties are hereby referred to Family Services for a screening, and they are hereby directed to contact Family Services for that purpose.   A report back from Family Services with respect to such screening shall be due by the Case Management date of December 16, 2013.

SO ORDERED.

BY THE COURT,

Albis, J.

Albis, Michael A., J.