John L. Townsend v. Necole M. Dundy (2014)

MEMORANDUM OF DECISION

Following a contested hearing that started on March 13, 2013 and ended on October 23, 2013, the court has carefully considered the testimony of the parties and witnesses including the testimony of Dr. Robert Horwitz and the minor child's Guardian ad Litem (GAL) Marissa Leigh Bigelli, the documents entered into evidence, the court file, the Financial Affidavits of the parties, the Proposed Orders by the parties and the GAL and the statutory criteria governing custody, visitation and access issues regarding the minor child, including the best interest of the minor child, and child support, all in connection with pending motions for custody, support and fees.

By Way of Findings

1. The parties to this action were never married.   However, they do have a child together by the name of Jordan Tylee Townsend who was born on 12/24/1997 and has just turned 16 years old.

2. This case first came to court in November of 2002 when the father filed for custody and alleged on the Affidavit Concerning Children that Jordan primarily lived at his residence on Ellsworth Avenue in New Haven and “off and on” at mother's residence in Ansonia since birth.   However, on December 4, 2002 the parties signed an Agreement (pleading no. 103) that they would share joint legal custody with primary physical custody with mother and the father's parenting time to include every other weekend.   The case went to Judgment pursuant to that Agreement.

3. The parties were back in court in early 2004 which was resolved with court orders on 3/24/2004 regarding pick-up and drop-off of minor child and on 4/14/2004 regarding payment of medical expenses and an insurance card for the minor child (pleading nos. 110 and 111).

4. There was no further court activity until 2011 when the father filed Motion # 114 for Contempt and Motion # 115 for Modification on 2/18/2011 seeking sole custody of Jordan with no overnights with mother because of her behavior.   A GAL was appointed for the minor child.

5. 2011 was a contentious year for the parties based on a review of the file.   The plaintiff mother changed counsel toward the end of 2011.   The pleadings are somewhat confusing but it appears that by December 22, 2011 the parties agreed to joint legal custody and shared physical custody with the parties alternating weeks from Monday to Monday.   No child support was ordered.   See Plaintiff's Proposed Orders dated 11/21/2011 (pleading no. 131) which appears to have been approved by Judge Conway on 11/21/2011 with both parties and counsel present and Agreement (pleading no. 144) of parties dated 12/22/2011 signed by all parties, counsel and GAL and approved and ordered by Judge Gould on 12/22/2011.

6. On December 22, 2011 the court referred the parties to Family Relations for a Comprehensive Evaluation to determine issues of custody and access.   Apparently, the parties reached an agreement and the evaluation was withdrawn on 2/29/2012 (see pleading no. 145).   Prior to that Attorney Kevin W. Finch had filed his appearance as Attorney for the Minor Child (AMC).

7. On June 12, 2012 all parties, counsel, GAL and AMC appeared in court and signed a Stipulation (pleading no. 149) which was approved and ordered by Judge Conway on that date.   The Stipulation continued their joint legal custody but provided that primary physical custody would be with the mother.   There was a comprehensive parenting schedule which included every other weekend for the father.   There were provisions regarding the use of a cell phone carried by the minor child, the school bus which would continue to pick-up and drop-off at father's residence, neither party using the police or DCF to harass the other, use of OurFamilyWizard as a means of communication, participation in activities and the equal sharing of those costs and other provisions, particularly the final provision, which provided “If either party shall cause the other to enter into court to enforce the provisions of this agreement, the faulting party shall bear the Court costs and attorney fees of the other.”   On that same day, Judge Conway ordered the parties to engage in coparenting therapy.

8. On June 28, 2012, the parties, counsel, GAL and AMC were back in court with an agreement (pleading no. 151) which provided in part that the parties would begin co-parenting counseling with Dr. Robert Horwitz and share the cost equally, that the father would pay the mother $115 per week in child support, that they would share unreimbursed medical expenses with mother paying 66% and father paying 34%, that they share the fees of the GAL and AMC with the mother paying 60% and the father paying 40%, that the minor child continue to carry only one cell phone and that the father have daily contact with his son at reasonable hours.

9. Shortly thereafter on 10/24/2012 the mother filed Motion # 155 for Contempt regarding out-of-pocket medical expenses, cell phone bill and other child expenses all of which totaled $2,549.49.   This has not yet been resolved.

10. A complete review of the file and the testimony of the parties reveals a couple in high conflict with a minor child caught in the middle.   Jordan has been back and forth between his parents going from physical custody with the mother to shared physical custody with both parents and then back to physical custody with his mother until the incident of 10/28/2012 which resulted in the minor child going to the hospital.   Upon his release from the hospital to his father, the mother showed up at the hospital and confronted the father in the presence of the minor child and had to be restrained by hospital security.   The minor child left with the father where he has been ever since.

11. On 10/31/2012 Attorney Finch, as AMC, filed Emergency Ex–Parte Motion for Modification of Physical Custody–Postjudgment (pleading no. 157) which was granted by Judge Conway that day awarding custody to the father until further order of the court and then scheduling the matter for a hearing on 11/2/2012.

12. Also on 10/31/2012, the mother filed an Application for Emergency Ex Parte Motion and/or Emergency Ex Parte Temporary Injunction Regarding Custody/Visitation (pleading no. 158) claiming that the father would not return her son to her.   The court did not act on her Application but did set it down for a hearing to be heard with the AMC's Emergency Ex Parte Motion which had been scheduled for 11/2/2012.

13. On 11/2/2012, the parties, counsel for the father, the AMC and the GAL entered into an Agreement (pleading no. 160) which provided that the father would have temporary physical custody of the minor child with no contact by the child with the mother unless initiated by the child through the telephone only.   The mother was to have no contact with the minor child.   The minor child was to commence individual therapy with Dr. Robert Horwitz and child support was suspended pending further court order.   The parties were to report back at a future date with the DCF investigation and a report from the GAL.

14. On 12/11/2012, an Agreement was approved and ordered by the court that the mother and minor child would immediately commence joint counseling/therapy with Dr. Horwitz (pleading no. 162).   Both parties were represented by counsel at this time.

15. The court notes that the father filed Motion # 163 for Child Support Postjudgment on 12/11/2012 certifying that a true copy was mailed to all parties and counsel of record.

16. The court also notes that the father again filed Motion # 176 for Child Support–Postjudgment on 5/3/2013 certifying that a true copy was mailed to all parties and counsel of record.   On 6/6/2013 the court, among other orders, entered an order for child support reserving “jurisdiction to address the issue of retroactivity of the child support at the conclusion of the custody hearing.”   See pleading no. 181.

17. Following the Agreements of 11/2/2012 and 12/11/2012 which were made orders of the court, all efforts to engage the minor child in individual therapy with Dr. Horwitz and later engage the mother and child in joint counseling/therapy with Dr. Horwitz have failed.   Attempts at limited contact between the mother and the minor child such as a dinner visit also failed.   The minor child is now 16 years old and according to the GAL and the AMC is refusing to see his mother.

18. The minor child reports both physical and emotional abuse by his mother but, according to the therapist Dr. Horwitz, is ambiguous and non-specific.   Dr. Horwitz strongly believes that the minor child should have normal parenting time with his mother but apparently has been unable to accomplish it through their therapy sessions.   It got to the point where the minor child tuned them out, both mother and therapist, during their last sessions.   The minor child also has indicated he might harm his mother if she got physical with him.   Dr. Horwitz does not believe he would but did say he was a big 15–year–old, bigger than his mother.   An interesting exchange took place between the mother and the minor child at Dr. Horwitz's office during a therapy session on 6/25/2013 when the minor child would not talk to or look at his mother.   His mother testified that she stayed strong and told him how she felt and that her heart was now in a different place.   Jordan started to cry and his mother believed that her son thought she was giving up on him.   This might have been the time to tell the minor child that his mother loved him, that it was up to him to contact her, that she would always be there for him and then back off.   Unfortunately, the therapy with Dr. Horwitz has not worked.   The minor child has become more empowered during these proceedings and has become further estranged from his mother.

19. The court has noted the two emergency room visits by the minor child on 10/28/2012 and 2/27/2013 which appear to have been caused by stress and were related to the ongoing conflict between his parents.   The emergency department record (Defendant's Exhibit C) reports a “Major custody battle between parents.   Gets stressed whenever in company of mother-hx of panic attack when dealing with her ․” and “Patient brought in by his father and aunt after bizarre and aggressive behavior today after his court ordered visit with his mother.   Patient had made homicidal and suicidal comments at home and acting hostile.”

20. An argument could be made that the father has supported the minor child's position of not wanting to see his mother.   Or one could argue that the minor child is following the father's desire that he, the minor child, have no contact with his mother.   Are they in collusion to cut the mom out of the picture?   The GAL has testified that she does not believe that to be the case.   The court cannot not find one way or the other.   The witnesses for both parties sound credible but their testimony and the testimony of the parties paint a totally different story for each side.   It could not be more opposite if they tried.

21. At this point, the minor child refuses to see his mother.   He has an excellent relationship with his father's family who, for the most part, reside in the same three-family home on Ellsworth Avenue in New Haven.   He is doing well in school and is involved in sports at his high school.   He is in individual therapy at this time which is not with Dr. Horwitz.

22. An unfortunate fall-out from this conflict is the estrangement of Ms. Dundy's other son Dashon Catlett from Mr. Townsend and Jordan.   According to Mr. Townsend, he and Jordan were like father and brother to Dashon for many years and that relationship appears to be strained at this point in time.   Dashon testified for his mom and came across as a nice young man who cares about his mom and his half-brother Jordan.   If one were to read Mr. Townsend's 3–page statement “To whom it may concern” at the beginning of this file regarding his feelings about Dashon, one would see how sad this case is from many different perspectives.   One being the loss of Dashon's relationship with Jordan and the entire Townsend family.

The following Orders may enter:

ORDERS

1. Custody

The parties shall continue to share joint legal custody of the minor child, Jordan Townsend born December 24, 1997.   Physical custody and place of residence shall be with the father.   The minor child shall have open and liberal access to his mother.   No set schedule shall be put in place at this time.   The father shall encourage their son to regularly contact his mother and arrange for times they can be together.

2. Therapy

The minor child shall continue his current therapy with Eileen Mierzejewski at the Wellness Initiative until he is able to have regular contact with his mother.   The Guardian ad Litem, Marissa L. Bigelli (GAL), will be provided with authorizations from both parents to have contact with the therapist to insure that the therapy continues as herein ordered.

3. Decision Making Authority

Except in an emergency, the father will not make any decision concerning medical, psychological and educational needs and extracurricular activities of the minor child prior to using OurFamilyWizard (OFW) to communicate to the mother his position on those needs and activities.   The mother shall respond to the father within twenty-four (24) hours of receipt of his communication.   They will make a good faith effort to reach an agreement.   In the event they cannot reach agreement, the father shall have final decision-making authority.   The father shall promptly notify the mother of his decision.   All communication shall be through OFW except in an emergency when the parents can call or text each other.   Both parties shall provide the GAL with authorization to monitor their communication on OFW.

4. Child Information

a. The father shall keep the mother informed of all medical and dental issues and appointments, educational reports, sporting events and extracurricular activities that involve the minor child through OFW.

b. The mother shall have full access to the minor child's medical records, doctors, dental providers and mental health providers.   She also may attend all medical and dental appointments.

c. The mother shall have full access to the minor child's school records, PPTs, all school-related meetings and activities and be allowed to attend any school-related activity.

5. Child Support

a. The mother will continue to pay child support to father in the amount of $155 per week pursuant to the court order of 6/6/2013 (pleading no. 181).   The parties will continue to provide health insurance for the minor child as previously ordered.   All unreimbursed medical and dental expenses shall be split by the parties with the father paying 56% and the mother paying 44%.

b. The court will rule on the retroactivity of the child support at such time as the parties resolve by agreement or court order the extent of any arrearage owed by the father to mother for back support pursuant to Motion # 155 for Contempt filed on 10/24/2012.

c. The parents shall alternate the dependency exemption for the minor child for all federal, state and local tax purposes with the father taking the exemption in odd years and the mother taking the exemption in even years.   However, in the event the mother is not substantially current on her child support obligations by December 31 of any given year, she shall not be entitled to take the dependency exemption for that year.   In the event the father intends to take the dependency exemption from the mother for a particular year because he claims she is not substantially current on her child support obligation on December 31 of that year, he must advise her in writing within 31 days of December 31 (i.e., by January 31) and then may only take the exemption upon the written agreement of the parties or an order of this court.   The parties shall execute any documents which are necessary to allow for the aforesaid declaration regarding the dependency exemption.   This provision regarding the dependency exemption is subject to modification upon a substantial change in circumstance from the date of this order.

6. Counsel Fees

a. Each party shall pay for their own attorney fees and costs in connection with these proceedings.

b. The fees and costs incurred by the Attorney (AMC) and Guardian (GAL) for the minor child shall be shared equally by the parties effective 6/6/2013.   Prior to that date the fees were shared 60% by the mother and 40% by the father pursuant to their Agreement of 6/28/2012 (pleading no. 151).   Each party shall make arrangements with the AMC and GAL for the payment of those fees which are acceptable to the AMC and GAL. The court retains jurisdiction over the payment of those fees if they are unable to reach a reasonable agreement.

7. Miscellaneous Provisions Regarding Parties and Minor Child

a. Each parent has a responsibility to provide for the physical and emotional needs of the child.   Both parents are important for the child and the child needs both parents to be active parents throughout his life.   Both parents should respect each parent's separate role with the child.   Each parent should put the child's needs first in planning and making arrangements involving the child.   Unfortunately, that has not happened here.   The conflicts between the parents has caused a breakdown in the relationship between the mother and her child.   It is a sad time for both the mother and child.   I believe both the mother and father share in the cause of this breakdown.   At this time, it is important for the father to rise above the conflict with the mother of his son and do his best to repair the damage so his son and his mother can work toward a normal and healthy relationship with each other.   The court hopes the father is up to it.   Only time will tell.

b. It goes without saying that both parents, particularly the father at this point in time, will use their best efforts to discourage any disparaging remarks by extended family members or third parties about the other parent in the presence of the minor child.

c. Each parent shall keep the other informed of his or her address, contact number and place of employment.

8. Pending Motions

a. Emergency Ex–Parte Motion for Modification of Physical Custody–Postjudgment filed by AMC on 10/31/2012 (pleading no.   157):  Granted—See Orders entered this date.

b. Application for Emergency Ex Parte Motion and/or Emergency Ex–Parte Temporary Injunction Regarding Custody/Visitation filed by mother on 10/31/2012 (pleading no.   158):  Denied.   See Orders entered this date.

c. Motion # 163 for Support and Maintenance of Minor Child Pendente Lite filed 12/11/2012 by father and Motion # 176 for Support and Maintenance of Minor Child filed 5/3/2013 by father:  Granted—See Orders entered this date and on 6/6/2013 (pleading no. 181).

d. Motion # 183 for Custody of Minor Child Pendente Lite filed 9/9/2013 by father:  Granted—See Orders entered this date.   Objection filed 9/10/2013 by mother (pleading no.   184):  Overruled.

e. Motion # 185 for Counsel Fees filed 9/27/2013 by mother:  Denied—See Orders entered this date.

f. Motion # 187 for Counsel Fees filed 9/27/2013 by father:  Denied—See Orders entered this date.

g. Motion # 168 for Contempt filed 3/8/2013 by mother regarding visitation with Dr. Horwitz:  Denied.

h. Motion # 188 for Contempt for Failure to pay Guardian ad Litem fees, Postjudgment:  No finding of wilful contempt at this point in time.   See Orders entered this date.

i. Motion # 192 for Counsel Fees Re:  Attorney for Minor Child filed 10/7/2013 by AMC:  Granted—See Orders entered this date.

j. Motion # 155 for Contempt filed 10/24/2012 by mother for non-payment by father:  To be resolved at later date.   Dispute referred to Family Relations.   See paragraph 5b above.

9. Documents

Copies of the following documents are attached hereto and made a part hereof:  most recent Financial Affidavit* of each party filed at the hearing, the Advisement of Rights Re:  Income Withholding* * form, the Financial Affidavit* * * of each party filed on 6/6/2013, the Child Support Guidelines Worksheet* * * * presented to the Court on 6/6/2013 and the Order of 6/6/2013 (pleading no. 181).

The Court,

James G. Kenefick, Jr.

Judge Trial Referee

6/6/2013 ORDER

After hearing, the Court (Kenefick, J.T.R.) enters the following orders:

1) As to defendant's Motion 173, the defendant shall claim the minor child as a tax deduction on her 2012 tax return and the issue of which party will claim the minor child in 2013 and thereafter will be addressed by the Court at the conclusion of the custody hearing.

2) Motion 174 to expunge is denied.

3) Motion 175 regarding the medical insurance card is granted.   The defendant shall provide the plaintiff with an original Cigna medical and dental card.   The plaintiff shall give defendant notice of any medical and dental appointments for the minor child, prior to the appointment date.   If the minor child needs medical attention due to an emergency, the plaintiff shall inform the defendant immediately thereafter.   Defendant's Objection (177) is overruled.

4) As to Motion 176 for child support, the Court orders the defendant to pay $155 per week to the plaintiff in child support going forward.   The unreimbursed medical and dental expenses will be split by the parties with the plaintiff paying 56% and the defendant paying 44%.   The Court reserves jurisdiction to address the issue of retroactivity of the child support at the conclusion of the custody hearing.   The Court found the gross and net income of the parties for child support to be as reflected on the Guidelines Worksheet* * * * attached hereto.

5) Motion 178 for GAL fees is granted.   The GAL hourly fee is set at $250 per hour and the parties will split the fee with the plaintiff paying 50% and the defendant paying 50%.   The GAL shall be paid promptly on an ongoing basis until the next hearing date of 7/10/13.The Court reserves jurisdiction to re-allocate the percentage split of the GAL fee at the conclusion of the custody hearing.

6) The AMC fee will be paid 50% by the defendant and 50% by the plaintiff.   The Court reserves jurisdiction to re-allocate the percentage split of the AMC fee at the conclusion of the custody hearing.

(KENEFICK, J.T.R.)

*[Editor's Note:  The referenced Financial Affidavits, pg. 13, par. no. 9 has not been reproduced.]

* *[Editor's Note:  The referenced Advisement of Rights Re:  Income Withholding, pg. 13, par. no. 9 has not been reproduced.]

* * *[Editor's Note:  The referenced Financial Affidavits of 6/6/2013, pg. 13, par. no. 9 has not been reproduced.]

* * * *[Editor's Note:  The referenced Child Support Guidelines Worksheet, pg. 13, par. no. 9 and in ORDER, pg. 14, par. no. 4 has not been reproduced.]

Kenefick, James G., J.T.R.