Elaine M. Bacon v. Todd Bacon (2013)

MEMORANDUM OF DECISION

The plaintiff filed a Motion for Modification dated April 30, 2013 and filed on May 6, 2013 seeking to modify the current custody/visitation, child support, and tax exemptions orders pertaining to the parties' minor children.

The court held an evidentiary hearing on November 14, 2013 on said motion.   The parties were present during the hearing and each was represented by counsel.   Testimony was received by the plaintiff, the defendant, and a Family Relations Officer.   Exhibits were entered by the plaintiff.

From the testimony and evidence produced at the hearing and after assessing the credibility of the witnesses, the court finds the following facts to have been proven.

A review of the file and the relevant information reveals the following:

The parties were married on May 1, 2002.   A dissolution of marriage was commenced by complaint dated May 10, 2007.   The parties have two children born to the plaintiff wife after the date of the marriage and the defendant is the father of said children, being Julie Bacon, soon to be eleven years old and Todd who is nine years old.   The parties' marriage was dissolved on September 16, 2008 in the Superior Court for the Judicial District of Windham.   Pursuant to the orders of the Court entered on September 16, 2008, the court ordered the following:  “Parties shall have joint legal custody of their two minor children, Todd Bacon born 7/27/04 and Julie Bacon born 11/23/02, and Plaintiff Mother shall have primary physical custody.   Defendant Father shall have reasonable rights of visitation;  however he shall not consume alcohol 12 hours prior to visitation or during visitations.   Father shall have a minimum of 2 weekends each month and 2 weeks during the summer.”   In addition, it was further ordered that “Defendant shall pay to the Plaintiff $215.00 per week as child support by contingent income withholding, and 66% of the children's unreimbursed medical, dental, ophthalmological, optical, counseling, pharmaceutical, qualifying daycare and extracurricular activities;  said amounts being in accordance with the Connecticut Child Support Guidelines based on Defendant's being employed for approximately 6 months of the year and being laid off and receiving unemployment for approximately 6 months of the year.”   The child support order was modified by court order on June 20, 2012 pursuant to an agreement accepted by the court as follows:  “Based upon father's unemployment income child support shall be modified to $58.00 per week.   To date there is no arrearage due.”   The court Judgment of September 16, 2008 further provided as follows:  “Plaintiff shall claim Todd and Defendant shall claim Julie as exemptions for state and federal tax purposes;  however if Defendant is not current on his child support obligations, Plaintiff shall have a lien against any refund Defendant receives for that tax year, including any rebates.”

The parties were divorced on September 16, 2008 with custody and visitation orders being entered at that time.   The defendant moved to California in June 2012 and until such time, the defendant maintained a relationship with his children.   In August 2012, the parties' two children went to California for a period of approximately a week to visit with their father and stayed at their uncle's home in California.   In October 2012, the father sent his children a letter entered as an exhibit by the plaintiff in which he communicated to his children that he was basically ending his contact with them including by telephone.   The father has not contacted the children since said time despite knowing that the children had cell phones and he could contact them.   The children attempted to contact the father on his phone but the father shut off his phone and did not provide a new phone number for the children.   The children attempted to contact the father by contacting his brother in California where the children had resided when they went there for vacation but the father never responded to their messages.   The father has not let either the mother nor his children know his address, or phone number for over a year since October 2012.   He claims to have sent a few gifts but the gifts were sent by his mother with no reference to the father with said gifts.   The father testified that he has not contacted the children's school and is unaware of the activities that they participate in school.   He is also not sure where the children attend school but knew where they attended prior to his terminating his contact with them over a year ago.   The father has not been involved in the medical care of the children nor has he ever inquired of their health status nor has he ever contacted the children's doctors.   The mother also testified that she has been the victim of domestic violence at the hands of the father and that the parties' children were present during some of the incidences.   In addition, the father has harassed her and would call her names until the communications from him ended in late 2012.   She also testified that she would like the father to be involved with the children's lives and that the children are doing well.   She also believes that the father should be able to contact the children as long as he is not intoxicated.   She is currently employed as a nurse's assistant and has had previous significant health ailments.   She believes that the father is working under the table but presented no credible evidence to prove her allegation.

The father testified that he lives in multiple places in California including staying at times on a pull out bed at his brother's plumbing store.   He stays with friends and other people at various times but does not know their addresses.   He has no set pattern as to where he stays and does not maintain a residence by himself or for which he is responsible for and controls.   In essence, he is homeless.   He blames his lack of contact with his children on the mother and his poor relationship with her.   His lack of communication with the mother is caused by the mother according to the father.   He wants visitation over the upcoming holidays but acknowledges that he probably cannot afford to exercise it due to his lack of income.   He also asserts that he moved to California to obtain employment as well as to remove himself from contact with the mother so that he can avoid being thrown in jail.

A Family Relations Officer testified that she conducted an investigation pursuant to the request of the court.   Her report was entered as an exhibit by the plaintiff.   She testified that it was her recommendation that the mother was to have sole custody with unlimited contact by mail and other forms of electronic communication by the father.   The recommendation further provided that the father shall have reasonable rights of access with the children in Connecticut and that if the father shows consistent and regular contact with the children and his living situation stabilizes, the visits may be increased to allow visitation in California.   The children are also doing well according to the Family Relations Officer.

The court finds that the testimony of the plaintiff mother to be credible.   The court finds that the testimony of the defendant father not to be credible.   His testimony was evasive, unreliable, inconsistent and untrustworthy.   The court finds that the plaintiff has meet her burden and has proven the existence of a substantial change of circumstances since the entry of the initial custody orders and that a change in the custody is in the best interest of the children.   The evidence has shown and the court hereby finds that the father has virtually abandoned his children since October 2012.   He has not initiated any contact with them nor has he permitted any contact by his children with him.   He has had no involvement with their medical care, schooling, activities nor in any aspect of their lives.   He has made himself unavailable to not only his children but their mother, the plaintiff.   His whereabouts have been unknown for the past year and he has left no way of his family either finding or communicating with him.   The defendant is unable to communicate with the plaintiff and the court finds that is a result of his actions and not the plaintiff's.   Joint custody under these conditions would be adverse to the best interest of the children.   Accordingly, the court is modifying the previous court orders to giving the plaintiff sole custody as further stated in the orders at the end of this memorandum.

The mother is currently employed as a certified nurse's assistant and is earning a gross wage of $566.47 and nets $519.54 as evidenced by her financial affidavit filed with the court on November 14, 2013.   When the child support was last modified on June 20, 2012, the mother had no employment income but did list receiving funds from her other older children which was not income from employment.   The mother further testified at the hearing that her fiancé is living with her in her family and that he helps contribute to the household expenses.   The father is currently unemployed and filed a financial affidavit with the court on November 14, 2013 showing no income.   He testified that his previous unemployment compensation income had been exhausted and that he was looking for work and living from his retirement funds as well as receiving the assistance from his family.   At the time the child support was last modified on June 20, 2012, he listed unemployment income of $358.00.

Accordingly, the court finds that the plaintiff has not meet her burden of proof to show the existence of a substantial change in the circumstances as to the modification of child support.   She presented no credible evidence that the father has an income from “working under the table.”   Since the date of the last child support order, the mother's income has increased and the father's has decreased.

The court further notes that given the parties' respective current income, the court will transfer the income tax deductions for both of the children to the mother find that the income of the plaintiff has increased and the income of the defendant has decreased.

The mother also presented credible evidence of the existence of necessary expenses for the children pursuant to plaintiff's exhibit # 3 and as such the father is responsible for 66% of said expense.

Accordingly, the court enters the following orders modifying the previous orders entered in this case as follows:

1. The plaintiff shall have sole legal and physical custody of the minor children.

2. The defendant shall be permitted to have unlimited mail, telephone and other forms of electronic communication with the children.

3. The defendant shall have reasonable access to the minor children in the State of Connecticut as follows:  The defendant shall be entitled to visit with the children during a weekend from Friday, after school or 10:00 a.m. if school is not in session until Sunday 4:00 p.m. two weekends a month provided he shall give advance notice to the plaintiff of at least two weeks prior to said visitation with all visitation to be in the State of Connecticut.   It is further ordered that the defendant in exercising said visitation shall let the plaintiff know where the children will be staying with him during said visit and he and the children shall be accessible by cellphone during said visits including vacation visitation.   The defendant shall be entitled to visit with the children in Connecticut one week during the summer at a time mutually agreed by the parties.   The defendant shall further not consume alcohol 12 hours prior to all visitations and during said visitations.   Additional visitation may be given to the defendant provided both parties agree.   This order replaces the entire visitation orders and does not allow the defendant to visit with the children outside of the State of Connecticut absent permission by the plaintiff.

4. The motion to modify the child support is denied.   The defendant shall notify the plaintiff when he obtains employment or any financial assistance from any government and provide evidence of his weekly income to her.   He shall also provide a copy of his 1099s each year for so long as there is a child support obligation.

5. The court finds that the past receipts for child-related expenses incurred by the plaintiff as evidenced by plaintiff's exhibit # 3 are valid expenses and as such, pursuant to the existing orders the defendant is to reimburse the plaintiff the sum of $272.97 within thirty days of this judgment with no set off to be asserted by the defendant.

6. The plaintiff shall be solely entitled to claim the minor children on her federal and state tax returns each and every year.

Graziani, Judge

Graziani, Edward C., J.