Meegan A. Rossier v. Thomas M. Gex (2014)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR CONTEMPT (# 111.00)

The defendant's motion for contempt is based on the allegation that the plaintiff relocated with the minor child from the State of Connecticut to Boston, Massachusetts in violation of the automatic orders imposed by statute.

The court finds the pertinent facts as follows.   The plaintiff initiated this action with her application dated April 5, 2013 seeking sole custody of the parties' son Noah, born August 17, 2009.   At the time of the institution of the action the plaintiff resided in West Hartford, Connecticut.

On or about August 1, 2013, the plaintiff vacated her apartment in West Hartford and, without the benefit of the consent of the defendant or a court order, moved with the child to the home of her brother in Boston.   The move occurred despite the fact that the parties had been in this court on July 17, 2013, when they made an agreement which became an order of the court calling for the defendant to have specified visitation in Connecticut.   The plaintiff did not make the defendant or Noah's guardian ad litem aware of the move until the waning days of July, when the relocation was essentially a fait accompli.   The relocation required the defendant to travel to Boston rather than Connecticut for visits with his son, at significant expense including the cost of rental cars.

The plaintiff gave different reasons for the move at various times, including her testimony at the hearing on the present motion.   The varying explanations included the expiration and nonrenewal of her lease;  the plaintiff's inability after an exhaustive search to find an affordable suitable apartment in the Greater Hartford area;  an altercation with her landlord that required a hasty move from the apartment;  and the plaintiff's intention to enroll in nursing school at Northeastern University in Boston (which she ultimately did not do).

The automatic order pertinent to the motion is clear and unambrgiious.   As embodied in Section 25–5 of the Connecticut Practice Book, the order states that “Neither party shall permanently remove the minor child or children from the state of Connecticut, without written consent of the other or order of a judicial authority.”   The same order is stated in full as part of the very custody application that the plaintiff signed and served upon the defendant at the outset of this action, and pursuant to said rule the order was effective as to Ms. Rossier upon her signing the application.   The court does not find credible the testimony of the plaintiff that she was unaware of the order.

The court is troubled by the plaintiff's shifting reasons for the move, her continued representation that she was enrolled in nursing school after she had already decided it was not economically feasible to do so, and her statement that she intends to remain in Boston indefinitely just a few short weeks after telling the guardian ad litem that she planned to return to Connecticut by the end of December 2013.

In short, the court does not find credible the plaintiff's testimony that her need to move to Boston—and nowhere else—was sudden and beyond her control.   The court finds that the plaintiff violated the automatic order cited above, that she had the ability to comply with the order by remaining in Connecticut until she either obtained the consent of the defendant or the appropriate court order, and that her violation of the order was willful.

Accordingly, the court finds the plaintiff in contempt of the order.   As a remedy, the court orders the plaintiff to pay the defendant the sum of $400, to defray a portion of the expense he incurred by having to travel to Boston for his court-ordered parental access time with the minor child.   One-half of said sum shall be payable within thirty (30) days, and the balance within sixty (60) days, of this order.

APPLICATION FOR CUSTODY (101.00)

On the basis of the testimony and other evidence, the court finds as follows:

1. The court has jurisdiction over the matter.

2. The parties were never married.

3. The parties are the parents of the minor child, Noah, born August 17, 2009.

4. The minor child resided in Connecticut for six months prior to the institution of this action.

5. The parties resided together in West Hartford, Connecticut, until March 2012, and have not resided together since.

6. The defendant did not see the minor child from approximately March 2012 until the summer of 2013 due to a criminal protective order arising from his arrest at the parties' home.   The arrest related to an incident in March 2012 in which the defendant was allegedly in possession of a firearm while under the influence of alcohol and threatening harm to himself.   The defendant obtained the dismissal of the charges through his successful completion of a pretrial diversionary program.   He has also successfully completed a substance abuse treatment program.   The defendant does not own or possess a firearm.   The Connecticut Department of Children and Families did not substantiate any abuse or neglect of the minor child by the defendant in connection with said incident.

7. The plaintiff presently resides with the minor in Boston, Massachusetts, in the home of her brother Lucas.

8. The defendant presently resides in New York, New York, with his current girlfriend, Paige Langlands.

9. Since August 2013, the defendant has had visits with the minor child pursuant to an agreement of the parties and order of this court granting him access on alternating weekends from Thursday to Tuesday.

10. The minor child is currently enrolled in a preschool program in Boston and is expected to enter kindergarten in September 2014.

11. While both parents have demonstrated the ability to care for the minor child properly, the minor child has resided with the plaintiff throughout his life.

12. The court-appointed Guardian ad Litem recommends that whichever parent has primary residence of the child, the other parent be granted as close to equal parenting time as is feasible given the distance between the parties' homes.

13. For purposes of the application of the child support guidelines, the plaintiff's current net weekly income is $612 and the defendant's current net weekly income is $618.

14. The facts found above with respect to the motion for contempt have also been considered in connection with the custody application.

CONCLUSIONS

The court has reviewed the evidence with a view to ascertaining the best interests of the minor child in light of the factors enumerated in Section 46b–56 of the Connecticut General Statutes.   In doing so, the court finds the factors discussed below particularly pertinent.

Both parents have a genuine love and concern for Noah. Both have succeeded in providing appropriate care for him when he is in their charge.   Both have household members who are willing and able to assist in Noah's care;  the plaintiff's brother is a resource for her and Ms. Langlands is a caring partner with the defendant in seeing to Noah's needs.   Applying the statutory criteria, the court concludes that the parties' joint legal custody of Noah is in his best interests.

Unfortunately, the geographical distance between the parties' respective homes in Boston and New York City creates challenges to the formulation of a parenting plan that is in the best interests of Noah and allows both parents to play a significant role.

In considering the factors enumerated in Section 46b–56(c) of the Connecticut General Statutes, the court finds that most are either inapplicable to the present case or provide no basis for a significant differentiation between the parties as to the issue of Noah's primary residence.

The factor set forth in Section 46b–56(c)(6), namely “the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders,” gives the court pause for concern with respect to the mother.   The court finds her less than fully cooperative, at least to date, in promoting a relationship between Noah and his father.   In this vein, the conduct of the mother as found in the foregoing decision on the father's motion for contempt is also troubling in the context of the ultimate decision on custody and the parenting plan.

Nevertheless, it is the court's view that this concern is outweighed by the factor referenced in Section 46b–56(c)(5) regarding “the past and current interaction and relationship of the child with each parent.”   The mother has cared for and nurtured Noah and has had a strong and continuous bond with him throughout his life.   Notwithstanding the mother's abrupt relocation to Boston and her sometimes lackluster efforts to facilitate access for the father, the court finds it to be in Noah's best interests to continue his primary residence with his mother.   While the location of Noah's residence has been less stable than the court would like to see, his sharing of a home environment with his mother has been constant, and it is clear from the evidence that under her care he has thrived.

At the same time, the father has made impressive strides in his ability to retake an important role in his son's life following an extended period of absence.   It is in the best interests of Noah to foster the relationship with his father as much as is feasible in view of the distance between his parents' homes, taking into consideration that the child is due to enter kindergarten in September 2014.   Going forward, for Noah's benefit his mother must become a more positive force in facilitating that relationship than has been the case to date.

For the foregoing reasons the court makes the detailed orders below, in which the plaintiff is sometimes referred to as the “Mother” and the defendant as the “Father.”

Custody

The parties shall have joint legal custody of the minor child, Noah. The child's primary residence shall be with the Mother.

Parenting Time

Date of Judgment to Summer 2014

From the date of this judgment until the Father's 2014 summer access, the Father shall have parenting time on alternate weekends from Thursday evening until Monday evening, with the exchange of the child, unless otherwise agreed, to be in accordance with the order below regarding exchanges at Union Station in New Haven, Connecticut;  provided, that the Father shall have the option upon notice to the Mother on any such weekend to transport the child to drop-off at Tuesday pre-school in lieu of such exchange.

School Year

Commencing in September 2014, during each school year the Father shall have parenting time on each and every weekend which is extended by at least one day due to a school holiday;  provided, that the foregoing shall not apply to Labor Day weekend if the school year commences before that holiday.   His parenting time on such weekends shall commence at 6:00 p.m. on the evening of the last school day before the weekend and shall end at 6:00 p.m. on the evening before school is scheduled to resume.   Notwithstanding the foregoing, if such a three-day (or longer) weekend coincides with or overlaps a holiday or vacation for which a contrary specific order for parenting time is made herein, the holiday or vacation order shall prevail.

In addition to the above access time during the school year, the Father shall have the option to have weekday or weekend parenting time (except during Mother's holiday or vacation periods) in the State of Massachusetts, or in the State of Vermont where Father's parents reside, at any time upon seven (7) days' notice to Mother.   Said additional parenting time may include one night of overnight access in each calendar month.   If Father exercises this additional parenting time on a weekday he shall be responsible for ensuring that the child attends school and his regularly scheduled activities.   The order below for exchange of the child at Union Station in New Haven, Connecticut shall not apply to the Father's exercise of additional access time under this paragraph;  rather, the Father shall be responsible for providing for his own transportation to Boston or Vermont, and/or for arranging for the transportation of the child to Vermont, as the case may be.   The Father may also designate either or both of the paternal grandparents to transport the child for the purpose of his parenting time.

Summer

The Father shall have continuous parenting time each summer from July 1 to August 15.

During the Father's summer parenting time, the Mother shall have the option to have one day of parenting time in each calendar week (not to include overnight parenting time) in New York City, upon seven (7) days' notice to Father.   Nothing shall preclude the Mother from exercising said option by having access time with Noah on Saturday of one calendar week and Sunday of the next (i.e. the following day), without overnight access in between.   The order below for exchange of the child at Union Station in New Haven, Connecticut shall not apply to the Mother's exercise of additional access time under this paragraph;  rather, the Mother shall be responsible for providing for her own transportation to New York City.

Holiday Parenting Time

Christmas, New Year's and Christmas School Vacation Period

The parties shall divide parenting time during the Christmas school vacation period.   The school vacation period shall be defined as 6:00 p.m. on the day school concludes for Christmas recess until 6:00 p.m. on the day prior to the start of school in January.

In 2014 and all even numbered years thereafter, Father shall have parenting time from the evening of the day school concludes for Christmas recess until 6:00 p.m. on December 30, and Mother shall have parenting time for the balance of the school vacation.

In 2015 and all odd numbered years thereafter, Mother shall have parenting time from 6:00 p.m. on the day school concludes for Christmas recess until 6:00 p.m. on December 27, and Father shall have parenting time from 6:00 p.m. on December 27 until 6:00 p.m. on the day prior to the start of school in January.

Thanksgiving

In 2014 and all even numbered years thereafter, Mother shall have parenting time from 6:00 p.m. on the Wednesday immediately prior to the holiday through 6:00 p.m. on the Friday immediately following the holiday.

In 2015 and all odd numbered years thereafter, Father shall have parenting time from 6:00 p.m. on the Wednesday immediately prior to the holiday through 6:00 p.m. on the Saturday immediately following the holiday.

Mother's Day and Father's Day Weekends

The child shall spend Mother's Day weekend with Mother every year and Father's Day weekend with Father every year.   These weekends shall be defined as Friday at 6:00 p.m. until Sunday at 6:00 p.m.

Vacations

February and April school vacation periods

In 2014 and all even numbered years thereafter, Mother shall have parenting time for the February school vacation period and Father shall have parenting time for the Easter/April school vacation period.

In 2015 and all odd numbered years thereafter, Father shall have parenting time for the February school vacation period and Mother shall have parenting time for the Easter/April school vacation period.

If the child only has one of these vacation periods (due to school calendar or policy or excessive weather related cancellations), the Father shall have parenting time for the entire vacation.

These school vacation periods shall be defined as 6:00 p.m. on the day school concludes for the school break until 6:00 p.m. on the day prior to the recommencement of school after the school break.

Parenting Time Exchanges

Except as otherwise agreed by the parties or otherwise ordered herein, all exchanges for Father's parenting time shall take place at the Union Station in New Haven, Connecticut (Metro North/Amtrak train station).   Where a time is specified for an exchange which is to occur at said station, the parties shall arrange for the exchange of the child to occur as close to the specified time as is reasonably possible given the applicable train schedules.   In so doing, the parties shall minimize to the extent possible the length of time the child must wait in the station for the receiving parent to arrive.   When traveling the child shall be accompanied at all times by one of the parties, provided that the Mother may designate her brother to accompany the child in her place and the Father may designate Paige Langlands or either or both of the paternal grandparents to accompany the child in his place.   Each party may also use a different designee with the consent of the other party, which consent shall not be unreasonably withheld.   Each party shall bear his or her own (or designee's) transportation expenses plus the expense of transporting the child for the leg of the trip for which he or she is obligated to provide accompaniment to the child.

MISCELLANEOUS

(a) The parties shall utilize OurFamilyWizard (“OFW”) to communicate as to all matters concerning their respective parenting time and related issues and shall share equally in the expense thereof.   The foregoing shall not be construed to prohibit the parties from communicating by other means in addition to OFW. The parties shall respond to any requests made by the other parent on OFW within 48 hours of such request.   Any parent who schedules an educational, therapeutic or medical appointment for the minor child shall notify the other parent within 24 hours of scheduling the appointment, including provider name, address, telephone number and nature of appointment.   Any parent scheduling an appointment that is less than 24 hours before the appointment time shall notify the other parent by telephone as well as OFW. Any emergency situation involving the child shall be relayed by telephone message as well as OFW.

(b) Neither parent shall relay messages or information to the other parent through the child.   Neither parent shall make derogatory remarks about the other parent to or in the presence of the minor child and shall not permit third parties to do so.   Neither party shall discuss the custody proceedings with or in the presence of the child.

(c) The child shall have telephone or Skype access to the parent in whose care he is not at the time, initiated by such parent, every other day.   Such access shall occur at 9:00 a.m. on the specified days or at such other time as may be agreed by the parties.   If the child is not available to accept the phone or Skype call from the parent, the parent in whose care the child then is shall assist the child in returning the call within 24 hours.

(d) Both parents shall complete the statutorily required parenting education program, or a comparable program offered in their respective areas, within ninety (90) days of this judgment.

(e) If a parent causes or permits the child to travel beyond the borders of such parent's state of residence (other than to have parenting time with the other parent) for a period in excess of 48 hours, he or she shall give the other parent notification of same via OFW no later than the day before the commencement of the trip.   Such notification shall include the physical address(es) where the child will be staying overnight and a telephone number for such address(es).   If the child's such absence from the parent's state of residence shall be for a period in excess of 72 hours, then such notification shall be given at least 48 hours before the child's departure and shall also include travel information that includes, as applicable, flight or other transportation information, destination(s), details of hotel or other overnight accommodations, and telephone contact information.

(f) Neither party shall introduce the child to any significant new third party, including boyfriend or girlfriend, until at least six months have passed from the time such party's relationship with the third party became significant.

Decisions

Each parent shall continue to have a full and active role in making any decisions in the child's life, including but not limited to education, religious training and practices, camps, and major medical (including psychological and psychiatric) or dental (including orthodontic) treatment.   These orders shall not prevent either parent from making a bona fide emergency medical decision for the child without first consulting with the other parent, so long as the other parent is informed and consulted as soon as is practicable given the nature of the emergency.   The parents shall consult with each other regarding all major decisions in the child's life and shall provide each other with any authorizations requested so as to allow both parents to obtain medical and educational information about the children.   Each parent shall notify the other of pending events concerning the child's medical condition, education, extracurricular activities, religious and social life, and shall provide the other with copies of any documents in his or her possession relating to these areas, including but not limited to school report cards.   In reaching any major decisions pertaining to the child, the parties shall be guided by the best interests of the child.   Neither parent shall unreasonably withhold consent to a proposed major decision pertaining to the child.   Routine or day-to-day decisions shall be made by the parent with whom the child is residing at the time a decision is required.

Relocation

Neither party shall relocate substantially farther from the other, with or without the child, without a prior court order permitting such relocation.

Child Support

Weekly Support Payments

The court finds the presumptive child support amount payable by the defendant for the minor child per the Child Support Guidelines to be $128 per week.   However, the court finds that in order for the defendant to maintain a satisfactory parental relationship with the child, it will be necessary for the defendant to incur significant expenses in exercising his option for additional parenting time during the majority of the year when the child is in Boston.   In view of these anticipated extraordinary expenses the court finds that the application of the guidelines in this case would be inequitable or inappropriate, and that the downward deviation from the presumptive amount ordered herein is appropriate.   Accordingly, the court orders the defendant to pay to the plaintiff as child support the sum of $110 per week commencing on the date of judgment.

Medical Insurance and Unreimbursed Medical Expenses

So long as the child is eligible, plaintiff shall maintain at her expense the existing Massachusetts medical insurance coverage, or its equivalent, for the child.   If and when the child becomes eligible for medical and/or dental insurance at a reasonable cost through either party's employment or otherwise, such party shall promptly enroll the child for such coverage and pay the cost thereof.   Each party shall from time to time provide the other with the most recent insurance card available for the coverage he or she is so required to maintain.   The provisions of Section 46b–86(e) of the Connecticut General Statutes shall apply to any medical or dental insurance maintained by either parent for the benefit of the child.

All unreimbursed medical expenses of the minor child shall be borne sixty (60%) percent by the plaintiff and forty (40%) percent by the defendant, in accordance with the child support guidelines.   Each party shall provide to the other a monthly report of such expenses paid or billed during the previous month;  each parent shall promptly pay to the provider or reimburse to the other parent, as the case may be, such parent's share of such expenses.

Child Care

The cost of work-related child care shall be borne sixty (60%) percent by the plaintiff and forty (40%) percent by the defendant, in accordance with the child support guidelines arranged by such party during his or her parental access time.   Each party shall provide to the other a monthly report of such expenses paid;  each parent shall promptly reimburse the other the appropriate share of such expenses.

Guardian ad Litem fees

The fees of the guardian ad litem (GAL), which are found to be in the nature of child support, shall be borne equally by the parties, and shall be payable by each party unless otherwise agreed with the GAL within 30 days after the date of the GAL's invoice or 60 days after the date of this order, whichever is later.

Final Judgment

The foregoing is intended as the final judgment of the court with regard to the plaintiff's custody application.

SO ORDERED.

BY THE COURT,

Albis, J.

Albis, Michael A., J.