Justin Van Etten v. Jennifer Van Etten (2013)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR MODIFICATION # 115, DEFENDANT'S MOTION FOR CONTEMPT # 117 AND DEFENDANT'S ORAL MOTION FOR DISCOVERY SANCTIONS

A review of the record reveals that the parties were divorced pursuant to a marital settlement agreement dated February 5, 2007.   There is one child, issue of the marriage, Hannah Van Etten born in 2005.   Pursuant to said agreement, the parties were to enjoy joint custody of the minor child with primary residence with the mother.   There have been several modifications of visitation along the way, but presently, the father enjoys visitation from Wednesday evening until Thursday morning at daycare or at school and on alternating weekends from Friday evening until Monday at daycare or at school plus various holidays and vacations.   The parties appeared to get along reasonably well until the past year or so which might or might not have coincided with his becoming engaged to his fiancée, Sara.

The parties appeared before the undersigned on November 13, 2013, together with the Guardian ad litem and were represented by counsel.

Before commencing the hearing, the defendant was heard regarding discovery disputes.   The parties had appeared before the undersigned on November 4 and then to November 6, 2013.   They entered into a stipulation that the plaintiff would provide all outstanding discovery items to the defendant by Friday, November 8, 2013 at 3:00 p.m. This did not occur.   For a variety of reasons, none of which the court finds to be persuasive, the plaintiff did not comply with this discovery order until the eve of trial.   In fact, the plaintiff did not produce a financial affidavit until the afternoon of trial.   The defendant claims four hours at $330 per hour for legal time expended and wasted pursuing these unnecessary discovery disputes which the court finds reasonable and will assess those costs against the plaintiff.

FINDINGS OF FACT

1. The parties were divorced pursuant to a marital settlement agreement dated February 5, 2007.

2. The parties were to enjoy joint custody of the minor child with primary residence with the mother.   There have been several modifications of visitation along the way, but presently, the father enjoys visitation from Wednesday evening until Thursday morning at daycare or at school and on alternating weekends from Friday evening until Monday at daycare or at school plus various holidays and vacations.

3. The parties appeared to get along reasonably well until the past year or so which might or might not have coincided with his becoming engaged to his fiancée, Sara.

4. The plaintiff father is seeking a shared parenting plan whereby the child would spend alternating weeks with each parent.

5. The defendant mother is seeking to maintain the status quo but to end the weekend visits on Sunday evening rather than on Monday so as to avoid homework or adjustment problems which she claims the child experiences.

6. The Guardian ad litem proposed maintaining the status quo.

7. The mother resides in Meriden and is a paralegal in a Hartford law firm.   Mother and child are extremely closely bonded.

8. The father is a draftsman residing in Waterbury with his fiancée and works in a town which requires that he drive through Meriden on his way to work.   He dearly loves his child.

9. The child is a happy and well-adjusted 8–year–old who attends public school in Meriden.

10. The child is closely bonded with the paternal grandparents who have since relocated to New York state but return to Waterbury several times per month to visit their son and grandchild.

11. The child is closely bonded with the maternal grandmother who lives a short distance from the child's Meriden home and who assists the mother in caregiving.

12. The child is bonding well with the father's fiancée and she certainly can be expected to have a significant relationship to the child.   Nonetheless, the court is disturbed that the child refers to Sara as “madré Sarah” which is both contrary to the express terms of the divorce agreement and sure to infuriate the mother.   The father must correct the child if she again refers to his fiancée with any term resembling “mother.”

13. The father has engaged in egregious misconduct during the course of these disputes:

In an effort to intimidate and infuriate the mother, he forged the signature of an attorney on a motion for modification (Exhibit D) and sent it to his ex-wife threatening that he would seek sole custody leaving her with only visitation and have her held in contempt (Exhibit E).

He contacted DCF to commence on unwarranted investigation against the mother.

He has refused to complete forms to process a dental bill for the child.

He refused to provide an itinerary and contact information regarding a vacation he was taking with the child until the lawyers and the Guardian ad litem intervened—even then, he did not produce the document until the day of the vacation.

He has neglected or failed to pay day care expenses and presently owes to the mother the sum of $965.55.

He has needlessly and vindictively provoked disputes with his ex-wife and attempted to intimidate her.

He complained that the child has dirty hair, deficient hygiene and ill fitting clothes while in the mother's care, claims which the court finds to be unfounded and contradicted by the Guardian ad litem's observations.

14. The Guardian ad litem testified convincingly that the present access schedule is working well and that the child is well adjusted and happy.   She recommended a few fine tuning changes but no dramatic changes in custody.   She cautioned the parties that their behaviors and toxic relationship will harm their child in significant ways.   The court agrees.

15. The court finds that the present visitation plan works well in that it minimizes interactions between the parties.

16. The court finds that a shared parenting plan would not be successful under the circumstances where the parties live approximately 35 minutes apart and have no civil communication whatsoever.   A shared parenting plan requires a cooperative and cordial relationship between two healthy parents who can put the needs of their child ahead of their own “rights.”   These parents do not have those qualities.

17. The court finds that the Sunday overnights with the father should continue.   The extra overnight facilitates a bonding between father and daughter and minimizes the interactions between the parents themselves.   Nonetheless, the court is concerned that the father sometimes delivers the child late to school and that her homework is sometimes deficient.   The father is cautioned in the strongest of terms to avoid any such recurrences of those shortcomings and if the ride to school is unavoidably delayed, the school and the mother should receive a call at that time.

18. The father claimed that he was deprived of five visits which will be addressed individually.   He claims that he was deprived of his November 2012 birthday visit.   This was explained satisfactorily in that the mother's own father was in the hospital requiring surgery and she initially refused the visit for that reason.   Later that same day, she left several messages to effectuate that visit which apparently went unheard.   The father claims that he was deprived of his 2013 birthday which was punctuated by the needless arguing between the parties.   He wanted the Sunday before his Monday birthday which the mother refused.   He then argued that he should have his “birthday” from midnight until midnight.   She offered him 9:00 a.m. to 6:00 p.m. which he refused and then he came to the mother's home at 7:00 a.m. but they were already gone.   He threatened her with arrest.   The visit did not take place.   The father's next complaint is that his regularly scheduled Wednesday visit on or about August 25, 2013, was canceled due to the mother's leaving on vacation the next morning.   He argued that the visit could have taken place anyway and she argued convincingly that she could not risk the father returning the child late on the day of her departure to Myrtle Beach.   The father complained that he missed the next regularly scheduled weekend but that was because the mother was still out of state at Myrtle Beach.   Finally, the father complained about a missed week in June 2013, but was unable to articulate precisely how that week was established or any other details.   If nothing else, these disputes illustrate the dysfunctional and toxic relationship between the parties.

19. The lawyers should be credited with assisting the parties in arriving at a number of agreements including:

The parties shall continue to share joint legal custody of the minor child.   The parties shall discuss and communicate with each other by April 1 of each year which weeks of the summer he or she wants for parental access.   The mother shall have the first choice of weeks in even years and the father shall have the first choice of weeks in odd years.   The mother shall have the last week or last partial week before Hannah begins school.   Neither parent shall have more than two weeks of consecutive time with the child in the summer.   Each parent will provide an itinerary to the other with contact information if the parental access is going to be exercised in a place other than the home.   The child shall be able to have telephone contact with each parent daily.   Each parent shall pay their respective share of day care expenses directly to the day care facility with the understanding that if the father utilizes the day care provider for Wednesday in advance of his visit, he will pay that extra cost himself.   The father will collect the child in advance of his Wednesday and weekend visit and return the child to school, day care or the mother's home following his visit.

20. The mother presented uncontroverted evidence that the father is in arrears on his reimbursement of day care costs to her in the amount of $965.55.

21. The father needlessly engaged in discovery misconduct necessitating the mother to expend four hours of legal time at $330 per hour which he must reimburse her.

22. The court finds that the present plan is serving the needs of the child and generally, continues to be in her best interest.

23. The defendant's counsel argued convincingly that summer vacations would work best if each parent elected a Monday through Friday which merged with his or her weekend to avoid a party exercising a seven-day vacation which impinged on the other's weekend.

LEGAL DISCUSSION

“Under Connecticut law, the trial court's discretion as to custody and visitation is not limited to [adopting the specific custodial arrangement sought by one of the parties].   It has long been established that the court has an independent duty to inquire into custody arrangements even when the parties are in agreement ․ Further, it has been recognized that in contested custody proceedings, the interests of one or both of the parents may be adverse to the best interests of the child.”  Feldman v. Feldman, 37 Conn.App. 397, 403–04 (1995).

In any custody order, the court is bound by what is in the best interests of the child.  Simons v. Simons, 172 Conn. 341 (1977), Krasnow v. Krasnow, 140 Conn. 254, 260 (1953), Connecticut General Statutes § 46b–56.   The court must also give consideration to the preference of a child or children if that child is of sufficient age to be capable of forming an intelligent decision.   The rights, wishes and desires of the parents are also a factor to be taken into account.   Both considerations, however, must be subordinated to the best interest of the child.  Ridgeway v. Ridgeway, 180 Conn. 533, 541 (1980).

“[A] court should have the discretion to award attorneys fees to a party who incurs those fees largely due to the other party's egregious litigation misconduct ․” Ramin v. Ramin, 281 Conn. 324 (2007).

ORDERS

1. The parties shall continue to share joint legal custody of the minor child.

2. The parties shall discuss and communicate with each other by April 1 of each year which weeks of the summer he or she wants for parental access.   The mother shall have the first choice of weeks in even years and the father shall have the first choice of weeks in odd years.   The mother shall have the last week or last partial week before Hannah begins school.

3. Neither parent shall have more than two weeks of consecutive time with the child in the summer.

4. Each parent will provide an itinerary to the other with contact information if the parental access is going to be exercised in a place other than the home.

5. The child shall be able to have telephone contact with each parent daily.

6. The father shall have three nonconsecutive weeks of summer vacation.

7. Each parent shall pay their respective share of day care expenses directly to the day care facility with the understanding that if the father utilizes the day care provider for Wednesday in advance of his visit, he will pay that extra cost himself.

8. The father shall be entitled to parental access every other weekend from Friday at 6:00 p.m. to Monday at school or at day care.   He shall also have parental access every Wednesday from 3:30 p.m. until Thursday, drop-off at school or at day care.   He shall be responsible for all of that transportation.

9. For transportation on holidays and vacations, the father shall collect the child for his visit and the mother shall retrieve the child at the conclusion of that visit.

10. Every Easter, the father will collect the child at 2:00 p.m. and the mother will retrieve the child at 7:00 p.m. Every Thanksgiving, the father will collect the child at 3:00 p.m. until overnight when the mother will retrieve the child on the day after Thanksgiving.   Memorial Day and Labor Day will attach to whatever parent has the child for that weekend.   The Fourth of July and New Year's Day will be during the child's vacation and will go with whatever parent is exercising that parenting time.   Mother's Day and Father's Day will be defined as Saturday at 7:00 p.m. until Monday at school or at day care.   Each parent's birthday shall be defined as 9:00 a.m. until 8:00 p.m. unless it falls on the day in which the child is already with that parent.

11. Each party shall ensure that the child is on time for school and that her homework is properly prepared when in that parent's care.

12. The father shall not permit the child to refer to anyone other than the mother as mom, mother, mommy, madré or any such terms and shall promptly correct the child if that takes place.

13. The defendant's motion for contempt (117) is granted.   The father shall pay to the mother the sum of $965.55 in day care expenses and $1,320 in counsel fees within 120 days.

14. The defendant's oral motion that pleading number 129 be sealed or otherwise removed from the court file is denied, notwithstanding its inaccuracies and inappropriate claims.

15. The grandparents, Sara and the mother's significant other (once introduced to the father) shall be permitted to provide the transportation in the place of the parent.

16. The GAL fees are found to be fair and reasonable.   Each party is ordered to pay 50% of the outstanding fees and to promptly make mutually agreeable payment arrangements with the GAL.

17. Any orders not inconsistent with these orders shall remain in full force and effect.

BY THE COURT

Kenneth L. Shluger, Judge

Shluger, Kenneth L., J.