Linda Lee v. Robert Depree (2013)

MEMORANDUM OF DECISION

The matter before the court is a dissolution of marriage action filed by the plaintiff.   The three day trial was held on August 20, 2013, August 21, 2013 and September 20, 2013 during which the court heard testimony and admitted evidence.   The procedural and factual history of the case is as follows.   The parties were married in a civil ceremony in Ridgefield, Connecticut on May 17, 2003.   There is one minor child who is the issue of the parties' marriage:  Dylan, born on March 31, 2009.   Both parties have resided in the state of Connecticut for more than one year prior to the filing of the action and neither has been the recipient of any state or municipal assistance.   Therefore, the court has jurisdiction.   There is a court ordered pendente lite parenting plan dated July 6, 2010, which provides, inter alia, that the parties have joint legal custody with the child residing primarily with the plaintiff and that routine decisions shall be made by the parent whom the child is residing with at the time.

Based on the relevant and credible evidence presented, the court makes the following findings of fact.   Both parties are college educated and the plaintiff has an advanced degree.   The plaintiff is 43 years old and described herself as healthy.   She received a bachelor's degree in clinical psychology with a minor in Spanish and a masters degree from Johns Hopkins.   She works for General Electric Capital Corporation as a senior program manager.   The defendant is 46 years old and proclaimed that he is in very good health.   The defendant is a certified public accountant who has a degree in public accounting from Pace University.   He is currently working as a finance consultant with the United Nations.   As a married couple, the parties lived modestly, resided in rental units, never purchased a marital home or acquired any significant assets.   The plaintiff's financial affidavit reflects that her assets consist of essentially a 2004 Volkswagen Passat with $2,778 in equity, $8,484 in liquid funds in three bank accounts, deferred compensation and retirement plans with a value of $317,947 and a life insurance policy that is slightly over one million dollars.   It also lists $69,083 in debt.¹  The defendant's financial affidavit reflects assets that are comprised of primarily a 2012 Subaru Impreza ² with no equity, $2,643 in bank accounts, deferred compensation and retirement plans in the amount of $120,602 and $153,896 in debts of which $79,986 is attributed to the defendant's legal bills and $27,000 is listed as a personal loan from his mother.³  During the marriage, the parties maintained a joint checking account that each would contribute to depending on the budget.   Early in the marriage, prior to the birth of the minor child, the parties separated briefly but reunited when the plaintiff found out she was pregnant.   Over time, their marriage began to unravel because of several factors such as the defendant's sporadic periods of unemployment, the plaintiff's frustration with being the sole breadwinner and having to hire a nanny to help care for the minor child when the defendant was out of work, the defendant's short temper and the defendant's disdain for the plaintiff's use of criticism and yelling in disciplining the minor child.

Moreover, there were a couple of instances in which each party expressed hostility toward the other party inappropriately and this contributed to the deterioration of the parties' marriage.   At the hearing, the plaintiff cited an incident in which the defendant screamed at her while they were in a vehicle with her mother and the defendant recounted an occasion in which the plaintiff threw an ottoman at him as he was holding their infant son when she was suffering from post-partum depression.   Nonetheless, in viewing these individual examples of the parties' disagreements collectively, the court finds that the actual cause of the demise of the parties' marriage is irretrievable breakdown.   Fortunately, despite their marital discord, the minor child has bonded well with and has a healthy attachment to the parties equally, is relatively well adjusted and behaves in a manner consistent with his age.   The plaintiff's interaction with the minor child appears to be geared toward ensuring that the minor child is engaged in team sports and is enrolled in highly regarded educational institutions whereas the defendant deals with the minor child in a relaxed and playful way that consists of one-on-one and more personalized activities with the minor child.   Yet, despite these positive signs of their love and affection toward the minor child, the parties' ability to communicate with each other has worsened as the divorce proceedings progressed to the point in which there is no communication between the parties except by way of email.   Even though there have been some limited examples that indicate that they have been able to reach joint decisions affecting the minor child, like adjusting the schedule for their parenting times to accommodate the other's needs or agreeing to enroll the minor child in a new school, the parties are unable to resolve their disagreements relative to significant matters dealing with the minor child's education, custody, schedule for parenting time with each party, health care decisions and religious upbringing.   On the matter of the minor child's religious upbringing, the parties, who were married by a justice of the peace, offered conflicting testimony about whether they agreed to raise the minor child in the Catholic faith.   The defendant testified that the parties discussed, during the baptism of the minor child, that they were going to raise Dylan in the Catholic faith but the plaintiff disputed this allegation during her testimony.   In weighing the evidence on this particular issue, the court finds the plaintiff's deposition testimony in which the plaintiff stated that she never intended to raise the minor child in the Catholic religion to be credible and is not convinced that the parties reached such agreement about the minor child's religious upbringing.

With respect to the parties' custody and visitation dispute, the court heard testimony from three witnesses:  Dorye Jackson, supervisor of family relations at the Stamford Superior Court, who prepared both a comprehensive evaluation and issue focused evaluation;  Sharon Gray, the minor child's preschool head teacher at Piper's Hill, Stamford, Connecticut;  Elizabeth Sharp, Esq., who was appointed as the minor child's guardian ad litem.   Both Jackson and Sharp determined, through their separate investigations, that the parties were good parents and the minor child was comfortable with and attached to each parent.   They also reached similar conclusions in their investigation regarding their assessment of the parties and the minor child and made identical recommendations regarding the award of sole custody of the minor child, which were based on the plaintiff's proactive role in making major decisions with respect to issues concerning the minor child, the defendant's tendency to become easily agitated and aggressive in his manner especially when his position is not acquiesced to or is challenged and the parties' difficulty in co-parenting as a result of their ineffective communication and lack of flexibility in reaching a consensus about significant issues affecting the minor child.   The Court notes that Sharp's recommendation that the minor child, at this developmental stage, needs to be at one home base was very persuasive, too.   The court finds the testimony of Jackson and Sharp to be credible on the issue of the custody of the minor child and parenting time for the parties.

Custody and Visitation

The court's authority to modify child custody and the criteria it must consider was summarized in Hibbard v. Hibbard, 139 Conn.App. 10 (2012).

Section 46b–56(a) 4 provides the court with the authority to make or modify orders regarding the custody, care, education, visitation and support of minor children.  General Statutes § 46b–56(b) provides, in relevant part, that in making or modify any such order, “the rights and responsibilities of both parents shall be considered and the court shall enter orders accordingly that serve the best interests of the child and provide the child with the active and consistent involvement of both parents commensurate with their abilities and interests.”   In considering the best interests of the child, the court may consider one or more of the factors set forth in § 46b–56(c) ․ That statute also provides that “[t]he court is not required to assign any weight to any of the factors that it considers.”  General Statutes § 46b–56(c).

Our cases have established that there is another consideration that the courts must be mindful of when modifying custody and visitation orders.  “Before a court may modify a custody order, it must find that there has been a material change in circumstance since the prior order of the court, but the ultimate test is the best interests of the child ․ The sole question is whether the trial court abused its discretion in deciding that the best interests of the child would be served by [the modification].”  (Internal quotation marks omitted.)  Gillespie v. Jenkins, 127 Conn.App. 228, 232, 14 A.3d 1019 (2011).   In other words, “[a]lthough a court must find that there has been a material change in circumstances since the prior order of the court ․ the ultimate test is the best interests of the child.”  (Internal quotation marks omitted.)  Eisenlohr v. Eisenlohr, 135 Conn.App. 337, 344–45, 43 A.3d 694 (2012).

In applying these principles, the court turns back to the instant action.   As stated above, the evidence in the record shows that each party displays a loving, caring and warm relationship with the minor child and that the minor child has a healthy attachment to and is comfortable with his parents.   And there is no credible evidence that neither parent tried to alienate the minor child from the other.   Because of their inability to communicate effectively with each other regarding major issues relating to the minor child, the parties' ability to co-parenting and reach joint decisions has been seriously impeded with respect to matters concerning the minor's child education, health and religion.   In light of the foregoing and based on a preponderance of the evidence, the court finds that there has been a material change in circumstances since the date of the last court order in that the parties are unable to communicate effectively with each other about major decisions concerning the minor child and that both parties are unable and unwilling to compromise relative to important developmental, social, religious and health issues pertaining to the minor.   Consequently, the court finds that it is in the best interest of the minor child to award sole legal and physical custody of the minor child to the plaintiff and to fashion a parenting plan that will afford the defendant with meaningful, parenting time so he can continue to maintain his bond with the minor child.

Alimony and the Distribution of the Marital Assets

In her proposed orders, the plaintiff asked the court to split the deferred and retirement assets in the parties' IRAs, 401ks, and pensions held by the parties during their marriage on a seventy (70%) percent to thirty (30%) percent ratio in favor of the plaintiff minus any pre-marriage contribution to said asset made by each party provided that the pre-marriage contribution can be reasonably documented by each party, order that the defendant pay the plaintiff one ($1.00) dollar per year ⁵ in alimony and order that the plaintiff pay no alimony to the defendant.   In his proposed orders, the defendant is not seeking child support from the plaintiff but is requesting alimony from the plaintiff in the amount of $2,000 a month for five (5) years.

The court turns to the case of Caffe v. Caffe, which is instructive on the issues of the distribution of marital assets and the award of alimony in a divorce proceeding.  240 Conn. 79, 689 A.2d 468 (1997).   Our supreme court in Caffe provides as follows:

“General Statutes §§ 46b–81, 46b–82 and 46b–84 set forth the criteria that a trial court must consider when resolving property and alimony disputes in a dissolution of marriage action.   The court must consider all of these criteria.  Siracusa v. Siracusa, 30 Conn.App. 560, 566, 621 A.2d 309 (1993).   It need not, however, make explicit reference to the statutory criteria that it considered in making its decision or make express findings as to each statutory factor.  “A ritualistic rendition of each and every statutory element would serve no useful purpose.”  Carpenter v. Carpenter, 188 Conn. 736, 740, 453 A.2d 1151 (1982).   Further, the trial court is vested with wide discretion and broad powers in resolving such matters.  Rostain v. Rostain, 213 Conn. 686, 689, 569 A.2d 1126 (1990).   Therefore, the “trial court is free to weigh the relevant statutory criteria without having to detail what importance it has assigned to the various statutory factors.”  (Internal quotation marks omitted.)  Collucci v. Collucci, 33 Conn.App. 536, 539, 636 A.2d 1364 (1994);  see also Rummel v. Rummel, 33 Conn.App. 214, 222, 635 A.2d 295 (1993);  Savage v. Savage, 25 Conn.App. 693, 701, 596 A.2d 23 (1991).

General Statutes § 46b–81 provides in relevant part:  “Assignment of property and transfer of title ․

“(c). In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party ․ shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income.   The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

General Statutes § 46b–82 provides in relevant part:  “Alimony.   At the time of entering the decree, the superior court may order either of the parties to pay alimony to the other ․ In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party ․ shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b–81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment.”

The court has considered both the applicable legal principles set forth in the relevant case law as well as the statutory criteria regarding alimony.   In applying the law to the facts before it, the court finds that alimony is not warranted here because this is a marriage of short duration and the parties' are relatively comparable in their station considering their levels of educational attainment, significant work history, age, health and needs among other variables.   The plaintiff and defendant are 43 and 46 years old, respectively, who are gainfully employed and earning a good salary commensurate with their educational backgrounds and work experiences.   For all intents and purposes, they are on equal footing in virtually every measurable way.   Given that there is parity between the parties and in consideration of the applicable law on alimony, the court finds that it would be inequitable to award either party any alimony as neither has demonstrated, through any credible evidence, of a need for alimony.   On the matter of the marital estate, the court finds that the only sizable asset of the parties' marital estate is their respective deferred compensation, pension and retirement plans and addresses the division of said assets in the below mentioned orders.

Orders

In rendering its decision and fashioning the ensuing orders, the court has carefully considered the statutory criteria in General Statutes § 46b–56(c) as to educational support orders, § 46b–56 regarding child support and the Child Support Guidelines' criteria set forth in Regs., Conn. State Agencies § 46b–215a–1 et. seq., §§ 46b–81 and 46b–82 regarding the assignment of the marital estate and alimony, respectively, and § 46b–62 regarding attorneys fees and the case law regarding these matters.   The court has also considered the parties' claims for relief and proposed orders.   Additionally, the court has examined parties' full exhibits and observed the demeanor of the witnesses during the trial.   Based on the foregoing, the court hereby enters the following orders:

1. Dissolution of the Marriage.   The marriage of the parties, having broken down irretrievably with no possibility of reconciliation, is hereby dissolved on the grounds of irretrievable breakdown effective on an even date herewith.   The parties are declared to be unmarried and single as of the date of judgment.

2. Alimony. No periodic or lump sum alimony is awarded to either party.

3. Custody. The plaintiff shall have sole legal and physical custody of the minor child and the primary residence of the minor child shall be with the plaintiff.   She shall make all decisions regarding the child's upbringing including, but not limited to, the minor child's education, participation in extracurricular and sports activities, before care, after care and summer camp enrollment, health and medical care and all treatment decisions related thereto.   The plaintiff shall notify the defendant on a weekly basis by email of all routine and non-routine health issues concerning the minor child.   In the event the child has a medical emergency, the plaintiff shall call the defendant and immediately follow-up on said communication with an email as well.   The defendant shall not communicate with the minor child's school, educators, caregivers, coaches, counselor.   Neither party shall say anything disparaging about the other to the minor child or try to alienate the minor child from the other.

4. Parenting Time/Visitation.   Notwithstanding anything here to the contrary, the plaintiff shall have the right, as the sole custodian of the minor child, to modify any provision in this section to accommodate the best interests of the minor child.   The defendant shall have parenting time with the minor child as follows:  During the academic year, the defendant shall have an overnight with the minor child on Wednesdays with the defendant picking up the minor child from school and dropping off the minor child to school on Thursday mornings and an overnight with the minor child on alternative weekends every Friday with the defendant picking up the minor child from school and dropping off the minor child to school on Monday mornings.   The academic recesses, holiday and summer schedule is as follows:

a.  School Recess—The father shall have Dylan during the Winter recess in even years and the plaintiff shall have Dylan during the Spring recess in odd years.

b. Easter—The father shall have Dylan from the Saturday evening before Easter beginning at 5:30 pm through the Monday morning following Easter with the defendant dropping off Dylan to school on said Monday.

c. Memorial Day Weekend—The father shall have Dylan from the Friday evening prior to Memorial Day with the defendant picking up Dylan from school through the Tuesday morning following Memorial Day dropping off Dylan to school in even years and the mother in odd years.

d. Fourth of July—The father shall have Dylan from the evening of July 3rd through the morning of July 5th in even years and the plaintiff in odd years.

e. Labor Day Weekend—The father shall have Dylan from the Friday evening prior to Labor Day through the Tuesday morning following Labor Day in odd years and the plaintiff in even years.

f. Columbus Day Weekend—The father shall have Dylan from the Friday evening prior to Columbus Day through the Tuesday morning following Columbus Day in odd years and the plaintiff in even years.

g. Thanksgiving Day—The father shall have Dylan from the Wednesday evening before Thanksgiving Day through the Friday morning following Thanksgiving in odd years and the plaintiff in even years.

h. Christmas Eve/Day/New Year's Eve—The defendant will have Dylan on Christmas Eve through Christmas morning in odd years and the plaintiff in even years.   The plaintiff will have Dylan on Christmas Day in even years and the defendant in odd years.   The defendant will have Dylan on New Year's Eve through the morning of January 1st in odd years and the plaintiff will have Dylan in even years.

i. Mother's Day/Father's Day—The plaintiff will have Dylan on Mother's Day and the defendant will have Dylan on Father's Day.

j. Summer—Each party shall be entitled to two separate one week periods or two continuous and uninterrupted week periods with Dylan during the summer at their own election.   Each party must inform the other party of his or her plan to exercise the one or two week periods and the date on which such will be taken by April 1st of each year.

k. Each party is free to take Dylan to a religious institution of his or her choosing during their respective parenting time with Dylan.

5. Child Support.   The court finds that the plaintiff's gross and net weekly incomes are $3,271 and $2,084, respectively, and the father's gross and net weekly incomes are $2,311 and $1,620, respectively and their combined net weekly income is $3,704.   Pursuant to the Child Support Guidelines Worksheet, the court finds that the presumption amount of child support is $251 weekly for the plaintiff and $195.00 weekly for the defendant.   Therefore, the court orders the defendant to pay child support to the plaintiff in the amount of $195.00 per week commencing on January 10, 2014 ⁶ and continuing until Dylan attains the age of eighteen (18), or if he is still attending high school when he turns eighteen (18), then until he completes his high school education, which event shall occur first, by wage execution.   The court further orders the defendant to pay the plaintiff 38% of the minor child's unreimbursed medical, dental, orthodontia, vision and therapy expenses, employment-related childcare expenses, afterschool, extracurricular and summer camp expenses including necessary equipment.

6. Medical and Other Expenses Relating to the Child.   The plaintiff currently maintains medical insurance for the benefit of the minor child and shall continue to do so at her sole expense as long as the same is available through and subsidized at substantially the same level by her employer until the minor child graduates from high school or turns eighteen (18), whichever occurs first.   If the plaintiff is unable to cover the minor child on her medical insurance as provided herein, the defendant shall cover and maintain the minor child on his medical insurance at his sole expense until the minor child graduates from high school or turns eighteen (18), whichever occurs first.

The parties shall share equally in the cost of the minor child's unreimbursed medical, dental and vision insurance until he graduates from high school or attains the age of eighteen (18), whichever occurs first.

7. Medical Insurance Relating to the Parties.   Each party shall be responsible for his or her own medical insurance and medical insurance costs as of the date of dissolution.

8. Educational Support.   The court shall retain jurisdiction regarding post-secondary education support orders for the minor child pursuant to General Statutes § 46b–56(c).  The court finds that it was more likely than not that the parents would have provided post-secondary education support to the minor child if the family were intact.

9. Tax Deduction.   The plaintiff shall take the tax deduction for the minor child in odd tax years and the defendant shall take the tax deduction for the minor child in even tax years.

10. Life Insurance.   The defendant shall obtain and maintain a life insurance policy with a one million ($1,000,000) dollar death benefit for as long as he has child support obligations as set forth herein.   The defendant shall name the plaintiff as beneficiary on said policy until such time as Dylan shall attain the age of eighteen (18).   On an annual basis, within five (5) business days of the premium due date, the defendant shall provide the plaintiff with written proof from the insurance company that the annual premium for said policy has been paid.   The defendant shall instruct the insurance company to send written notification of delinquent premium payments and/or termination directly to the plaintiff at her address.

11. Relocation. The plaintiff shall maintain the primary residence for the minor child, which shall be within a 35–mile radius of Stamford, Connecticut.   If either party seeks to change the minor child's residence beyond the 35–mile radius, that parent must obtain the prior written consent of the other parent or seek an order from the court approving the change in the minor child's residency before said change may take effect.

12. Deferred Compensation and Retirement Accounts.   The parties' IRAs, 401ks, pension and retirement accounts shall be divided seventy (70%) percent to the plaintiff as her sole possession and thirty (30%) percent to the defendant as his sole possession.   The value of the assets are to be determined as of the date of this judgment of dissolution.   Any costs necessary to implement this distribution, including a QDRO, shall be shared equally by the parties.

13. Individual Bank Accounts.   The parties' bank accounts shall be divided seventy (70%) percent to the plaintiff as her sole possession and thirty (30%) percent to the defendant as his sole possession.   The value of the bank accounts are to be determined as of the date of this judgment of dissolution.

14. Personal Property.   The parties have divided their personal property that was a part of the marital estate prior to this judgment and shall retain whatever personal property they now have in their possession except as may be otherwise provided herein.

15. Vehicles. Each party shall retain the vehicle he or she owns or leases, which is listed on his or her financial affidavit.

16. Attorneys Fees. Each party shall be responsible for their own attorneys fees ⁷ and costs.

17. Guardian Ad Litem Fees. The parties shall be equally responsible for paying the guardian ad litem, Elizabeth Sharpe, Esq., one-half of her total fees and cost.   The court finds that such fees and costs are in the amount of $37,248.07 as of September 30, 2013.   Each party shall receive credit against his/her fifty (50%) percent share for any payments made to date to the guardian ad litem, which amount to a credit of $6,356 made by the plaintiff and $1,000 made by the defendant.

18. Liabilities. The plaintiff shall be responsible for her own liabilities listed on her financial affidavit and hold the defendant harmless therefrom and the defendant shall be responsible for his own liabilities listed on his financial affidavit and hold the plaintiff harmless therefrom.

19. The court is aware of all of the varied other claims for relief or requests made by the parties that have been filed with the court in connection with the dissolution trial;  the court declines to issue orders not stated herein.

20. Both parties shall execute all necessary documents for the effectuation of these orders within thirty (30) days unless other specific times are already provided herein.

BY THE COURT

SYBIL V. RICHARDS, JUDGE

FOOTNOTES

FN1. No amount was indicated in relation to the plaintiff's outstanding legal bills, if any, on her financial affidavit.   It should be noted that the court makes no inference, positively or negatively, as to whether the plaintiff has outstanding legal bills..  FN1. No amount was indicated in relation to the plaintiff's outstanding legal bills, if any, on her financial affidavit.   It should be noted that the court makes no inference, positively or negatively, as to whether the plaintiff has outstanding legal bills.

FN2. His financial affidavit includes the identical vehicle listed on the plaintiff's financial affidavit, too, with an estimated value of $8,000, in which he claims a one-half interest of $4,000..  FN2. His financial affidavit includes the identical vehicle listed on the plaintiff's financial affidavit, too, with an estimated value of $8,000, in which he claims a one-half interest of $4,000.

FN3. However, it should be noted here that the court finds that the defendant's testimony about his receipt of a $27,000 personal loan from his mother was not credible..  FN3. However, it should be noted here that the court finds that the defendant's testimony about his receipt of a $27,000 personal loan from his mother was not credible.

FN4. General Statutes § 46b–56(a) is the precise citation..  FN4. General Statutes § 46b–56(a) is the precise citation.

FN5. The plaintiff's proposed order omits any reference to a specific length of years..  FN5. The plaintiff's proposed order omits any reference to a specific length of years.

FN6. In her proposed order and claims for relief (# 196.00), the plaintiff requested that in the court order the defendant to pay child support retroactively back to the date of her October 19, 2010 filing of a motion for child support.   The court declines to address the plaintiff's request on the ground that said motion was not properly before the court..  FN6. In her proposed order and claims for relief (# 196.00), the plaintiff requested that in the court order the defendant to pay child support retroactively back to the date of her October 19, 2010 filing of a motion for child support.   The court declines to address the plaintiff's request on the ground that said motion was not properly before the court.

FN7. In light of the amount of marital estate that is distributed to the parties by virtue of the court's orders, the court does not find that this will cause in an inequitable result when considering the law regarding the award of attorneys fees..  FN7. In light of the amount of marital estate that is distributed to the parties by virtue of the court's orders, the court does not find that this will cause in an inequitable result when considering the law regarding the award of attorneys fees.

Richards, Sybil V., J.