Patrick Marsh v. Atsumi Marsh (2014)

MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO MODIFY POSTJUDGMENT

The plaintiff Patrick Marsh and the defendant Atsumi Marsh were married on September 26, 1995.   They were divorced on March 31, 2010, after more than fourteen years of marriage.   The parties are the parents of three minor children:  Kiyana Jacqueline (Kiyana), born July 14, 1998;  Kojiro Matthew (Matthew), born September 23, 2000;  and Ryan Seiji (Ryan), born January 30, 2003.   For the two years following the dissolution of their marriage, the parties apparently co-parented their children without significant issues—or at least without disagreements that required the court's attention.   Beginning in March 2012, however, the conflict between the parties seems to have escalated.   The court file in this case indicates that the plaintiff and the defendant have filed more than twenty motions in the last two years.

On May 8, 2013, the plaintiff filed an application for a postjudgment order to show cause and a motion to modify the terms of the judgment of dissolution entered on March 31, 2010 with respect to the parenting plan for the children (# 143.00;  # 143.01).¹  This motion is the only motion addressed in this opinion.

The parties were before the court on December 11, 2013 on the plaintiff's motion for modification.   Both parties were represented by counsel.   The guardian ad litem for the children, Louise T. Truax, Esq., was also present.²  The court heard testimony from the parties and the guardian ad litem and reviewed the exhibits that were admitted into evidence.   For the reasons set forth below, the court finds that the plaintiff's requested modifications to the parenting plan are in the best interests of the children and grants the plaintiff's motion to modify the March 31, 2010 dissolution judgment.

I

The judgment dissolving the marriage of the parties incorporated by reference the parties' March 31, 2010 separation agreement (the March 2010 separation agreement).   Under Article II of the March 2010 separation agreement, the parties share joint legal custody and joint physical custody of the children.   Article II also includes the parties' parenting plan for the children.

The plaintiff is seeking to have the court modify the terms of his weekday and weekend parenting time set forth in Article II, Section A. Section A provides that “[t]he Husband shall have parenting time with the minor children during every three out of four weekends and for one mid-week overnight.   Weekend parenting time with Husband shall be defined as beginning Fridays at 6:30 p.m. until Sundays at 6:30 p.m.” The plaintiff has moved to modify the parenting plan for the children in three respects:  to have his weekday parenting time begin on Wednesday after the children's school day ends, rather than at 6:30 p.m.;   to have his weekend parenting time begin on Friday after school and continue until Monday morning, as he claims was the parties' practice until June 2013;  and to set the parties' parenting schedule as a rotating four-week schedule rather than as a monthly schedule—i.e., that the children will spend three weekends with the plaintiff, followed by one weekend with the defendant, then three weekends with the plaintiff, and one weekend with the defendant, and so on.

The defendant objects to the modifications that the plaintiff is seeking in his weekday and weekend parenting time.   The guardian ad litem supports the requested modifications to the plaintiff's weekend parenting time and the parenting schedule;  she testified that she does not have a strong position regarding a change in the weekday parenting time.   Each of the plaintiff's requested modifications to the parenting plan is discussed below.

II

General Statutes § 46b–56(a) provides in relevant part that “[i]n any controversy before the Superior Court as to the custody or care of minor children ․ the court may make or modify any proper order regarding the custody, care, education, visitation and support of the children ․ General Statutes § 46b–56(a).  Section 46b–56(a) “provides the court [with] broad authority to make or modify any proper order regarding the custody, care, education, visitation and support of minor children in dissolution actions.”   (Citations omitted;  internal quotation marks omitted.)  Balaska v. Balaska, 130 Conn.App. 510, 515, 25 A.3d 680 (2011).

As our Supreme Court has observed, “[i]t is well settled in this state that, in deciding custody or visitation issues, a court must always be guided by what is in the best interests of the child.”  (Citations omitted.)  Ireland v. Ireland, 246 Conn. 413, 419, 717 A.2d 676 (1998).  General Statutes § 46b–56(b) provides that, “[i]n making or modifying any order as provided in subsection (a) of this section, 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 ․” General Statutes § 46b–56(b).  See Szczerkowski v. Karmelowicz, 60 Conn.App. 429, 433, 759 A.2d 1050 (2000) (standard the court applies is that of the best interest of the child when ruling on a motion to modify visitation);  Kelly v. Kelly, 54 Conn.App. 50, 57, 732 A.2d 808 (1999) (trial court to be guided by the best interests of the child in modifying an order concerning visitation).

The court will consider each of the requested modifications to the parenting plan in light of what is in the best interests of Kiyana, Matthew and Ryan. In that regard, the court credits the testimony of the guardian ad litem to the effect that the children have been affected by the acrimony between the parties, which continues nearly four years after the entry of the dissolution judgment.³  The guardian ad litem testified that the children are well aware that the communication between their parents has broken down.   She also said the children dislike transferring between their parents' houses for the parties' respective parenting time.⁴

III

The plaintiff resides in the parties' former marital home in Greenwich, Connecticut.   The children currently attend Greenwich public schools.⁵  Kiyana, the eldest, is now at Greenwich High School.  (She previously attended Central Middle School and Greenwich Academy.)   The plaintiff's house is within walking distance of Central Middle School, the school that Matthew attends.   Ryan waits each morning in the defendant's car at the end of the plaintiff's driveway for the bus to North Street School (unless the defendant drives him to school).⁶  In the afternoon, the bus returns Ryan to the end of the plaintiff's driveway, where the defendant waits to take him to her house.

The plaintiff testified that, prior to June 2013, the children came to his house every day after school.   He said that Kiyana and Matthew walked together from Central Middle School, and the bus from North Street School dropped Ryan off at the end of the driveway.   The defendant picked the children up at the plaintiff's house around 5:00 p.m. on Monday, Tuesday, and Thursday—the days that they were not staying overnight.   In July 2012, the plaintiff hired a live-in au pair so that someone would be at his house with the children every afternoon when he was working and not at home.⁷

Although the March 2010 separation agreement provides that the plaintiff would have weekend parenting time every three out of four weekends from Friday at 6:30 p.m. until Sunday at 6:30 p.m., the plaintiff testified that, prior to June 2013, the children were at his house virtually every weekend, from after school on Friday until Monday morning.   He said that the defendant rarely asked that the children be returned to her on a Sunday.   The plaintiff recalled only two Sundays—one in May 2012, the day of Kiyana's confirmation at the First Presbyterian Church in Greenwich, and the other in July 2012, when his sister was visiting with her children—on which the defendant demanded that the children be brought back to her house rather than stay overnight with the plaintiff.   He said that the children remained with him on both occasions.⁸

The defendant denied that the children spent nearly every weekend with the plaintiff prior to June 2013.   She testified that she did not keep a calendar of where the children were on any particular day, but they were not with the plaintiff consistently every weekend.   She said that they followed the schedule set forth in the March 2010 separation agreement initially.   The defendant testified that the plaintiff would call occasionally and ask if the children could spend Sunday night at his house, and she would agree.   She said that she did not imagine that her flexibility with respect to Sunday nights would result in the plaintiff's asking the court to modify the dissolution judgment.⁹

Since June 2013, the parties have been adhering to the express terms of the March 2010 separation agreement.   The defendant releases the children to the plaintiff's au pair at 6:30 p.m. every Wednesday and on Friday when the plaintiff has weekend parenting time.   The au pair transports the children to the plaintiff's house.   The children are returned to the defendant's house by 6:30 p.m. on Sunday.   The children no longer go to the plaintiff's house after school.

A. The Plaintiff's Weekday Time

The plaintiff testified that he was seeking to modify his weekday parenting time so that the children can come directly to his house after school, as they had been doing prior to June 2013.   He said that if the children were at his house earlier on Wednesday they would have more time to take their piano lessons (a piano teacher comes to the plaintiff's home), eat dinner, study, and do their homework before they go to bed.   The plaintiff helps the children with their homework on Wednesday nights.

The defendant testified that she gets the children at school or at the bus stop on Wednesday afternoons.   She picks Matthew up at Central Middle School around 2:35 p.m., and they get something to eat.   They meet Ryan at the end of the plaintiff's driveway between 3:30 and 3:35 p.m., when he gets off the bus.   The defendant said that they go to her house and “hang out” for a while.   They pick Kiyana up at Greenwich High School between 4:30 p.m. and 6:00 p.m., depending on whether she has a play rehearsal.   The defendant takes the children back to her house, and she makes them something to eat.   The plaintiff's au pair comes to get the children between 6:00 and 6:30 p.m.

The guardian ad litem testified that she could see some benefit for the children in going to the plaintiff's house right after school, but that she had no strong recommendation regarding the plaintiff's Wednesday parenting time.   She said that it was a “difficult call” when the defendant was available in the afternoon, but the children would be with an au pair if they went to the plaintiff's house.¹⁰  The guardian ad litem noted that the defendant did not express any concern about the children going directly from school to the plaintiff's house prior to June 2013.

The March 2010 separation agreement is silent with respect to the time at which the plaintiff's weekday parenting time is to begin.¹¹  For the three school years following the parties' divorce, the children went directly to the plaintiff's house from school on Wednesday.¹²  Since June 2013, however, the defendant has picked the children up after school and released them to the plaintiff's au pair at 6:30 p.m. on Wednesday, after they have spent the afternoon driving around Greenwich and “hanging out”—as the defendant described it.

The court has concluded that it is in the best interests of the children to go directly from school (or from their after-school extracurricular activities or sports) to the plaintiff's house on Wednesday afternoon, as they had done nearly every school day after the dissolution judgment was entered until June 2013.   It appears that the children are now essentially marking time after school until 6:30 p.m. on Wednesday, when they go to the plaintiff's house, rather than arriving there earlier and having a more productive, less stressful evening.   Although the children will be with the au pair until the plaintiff gets home from work,¹³ they will be able to start their homework, take their piano lessons, and eat dinner during that time.

In addition, by going to the plaintiff's house straight from school, the children will not have to go directly from the defendant's house to the plaintiff's house, which, as the guardian ad litem testified, is problematic for them.   With their schools as the points of transition, the children will be shielded from any potentially unpleasant exchange between their parents.   See Peters v. Senman, Superior Court, judicial district of Tolland, Docket No. FA–104012572–S (Oct. 25, 2013;  Abery–Wetstone, J.)(intention of parenting plan to maximize use of child's school as point of transition from one parent to the other parent).

The parenting plan set forth in the March 2010 separation agreement, as incorporated by reference in the dissolution judgment, is modified accordingly to provide that the plaintiff's weekday parenting time shall begin at the end of the children's school day.   The children will go to the plaintiff's house directly from school (or from their after-school extracurricular activities or sports, as applicable) each Wednesday.

B. The Plaintiff's Weekend Parenting Time

The plaintiff explained that he was requesting that his weekend parenting time begin after school on Friday, and continue until Monday morning, because Sunday is now more stressful and less pleasant with his parenting time ending at 6:30 p.m. Prior to June 2013, he and the children would have a relaxing day on Sunday and then get ready for school in the evening.   Since June 2013, however, Sunday has become a fast-paced day with church, sports, lunch, errands, homework, and dinner.   The plaintiff said that he and the children have no free time on Sunday to visit a museum, for example, because the day is so busy.   The plaintiff also testified that Sunday evening is the time that he helps the children to prepare for the week ahead.   They finish their homework with his help and supervision.   They do laundry, pack their lunches, lay out their clothes, and get to bed on time.

The defendant testified that it was important for the children to be at her house on Sunday night to get ready for the week.   She described Sunday evening as their family time together.   The defendant said that their Sunday evenings were relaxing, after their hectic weekday schedule.   When the children are with the defendant on Sunday night, they prepare themselves mentally for the coming week.   The defendant reported that adhering to the schedule set forth in the March 2010 separation agreement has had a positive effect on the children.   She said that they are very happy coming home on Sunday evening.

The guardian ad litem recommended that the plaintiff's weekend parenting time continue until Monday morning on the weekends that he has the children.   She cited her understanding that the children had previously stayed with the plaintiff the “vast majority” of Sunday nights.   The guardian ad litem testified that at no time prior to June 2013 did the defendant indicate that, in her view, it was not in the children's best interests to be spending Sunday nights at the plaintiff's house.¹⁴

The court notes that both parties testified that Sunday night is an important time for the children to prepare for the coming week.   Therefore, the court has concluded that it is not in the children's best interests to have three of four Sunday evenings interrupted by a stressful transfer from the plaintiff's house to the defendant's house.   Although the defendant testified that the transitions with the plaintiff's au pair go well, the guardian ad litem said that the children do not like going between their parents' respective houses.   The court credits the guardian ad litem's testimony and accepts her recommendation that the plaintiff's weekend parenting time continue until Monday morning.

In addition, for the reasons discussed above with respect to the plaintiff's weekday parenting time, the court has concluded that it is in the children's best interests to have the plaintiff's weekend parenting time begin at the end of the children's school day on Friday.   By going to the plaintiff's house directly from school on Friday, the children will not have to transfer from the defendant's house to the plaintiff's house.   The children's schools will be the transition points instead.

The parenting plan set forth in the March 2010 separation agreement, as incorporated by reference in the dissolution judgment, is modified accordingly to provide that, on the weekends that the plaintiff has parenting time with the children, his parenting time shall begin at the end of the children's school day on Friday and shall continue until Monday morning.

C. The Parenting Time Schedule

Article II, Section A of the March 2010 separation agreement provides that the plaintiff shall have parenting time with the children “every three out of four weekends,” without specifying how the parties are to determine which weekends will be the weekends that the children spend with the plaintiff and which will be the weekend that the children are with the defendant.   The plaintiff testified that it was extremely challenging to schedule his weekends with the children, in part because the March 2010 separation agreement is unclear.   The guardian ad litem testified that the lack of clarity causes stress and uncertainty for the children, and she recommended that the visitation schedule be set as a rotating four-week schedule.

The court agrees with the recommendation of the guardian ad litem.   It is in the best interests of the children to have more certainty in the schedule for the parties' weekend parenting time.   The parenting plan set forth in the March 2010 separation agreement, as incorporated by reference in the dissolution judgment, is modified accordingly to provide that the parties' weekend parenting time shall be on a rotating four-week schedule, with the plaintiff having three consecutive weekends of parenting time, followed by one weekend of parenting time for the defendant, and so on.   The holiday and vacation schedule set forth in the March 2010 separation agreement ¹⁵ will supersede—but will not interrupt—the parties' regular weekend parenting time schedule.   For example, under Article II, Section B, the children are to spend the Memorial Day weekend with the plaintiff in 2014.   If that weekend coincides with the third of the plaintiff's parenting time weekends, the following weekend will be the defendant's parenting time weekend.   If the Memorial Day weekend would otherwise be the defendant's parenting time weekend, the following weekend will still be the first of the plaintiff's three consecutive weekends of parenting time, because the rotating parenting time schedule will be superseded by the holiday weekend but will not be interrupted.¹⁶

Commencing in 2015, this schedule shall begin in January of each year on the first weekend after the children have returned to school, and it shall continue through the calendar year.   In even-numbered years, the schedule will start with the plaintiff's three consecutive weekends of parenting time.   In odd-numbered years, the defendant's weekend of parenting time shall come first.

IV

The court has fully considered the criteria set forth in General Statutes § 46b–56, as well as the evidence, the relevant case law, the demeanor and the credibility of the witnesses, and the arguments of counsel, in making the findings set forth above and in reaching the decisions reflected in the orders that issue below.   Accordingly, the plaintiff's motion to modify the March 31, 2010 judgment of dissolution, which incorporated by reference the parties' March 2010 separation agreement, is hereby GRANTED, and is hereby ORDERED that the March 31, 2010 dissolution judgment be modified as follows:

1. The plaintiff's weekday parenting time shall begin each Wednesday at the end of the children's school day.   The children are to go directly from school (or from their afterschool extracurricular activities or sports, as applicable) to the plaintiff's house.

2. With respect to the weekends that the children are with the plaintiff:

(a) The plaintiff's weekend parenting time shall begin at the end of the children's school day on Friday.   The children are to go directly from school (or from their after-school extracurricular activities or sports, as applicable) to the plaintiff's house;  and

(b) The plaintiff's weekend parenting time shall continue until Monday morning.   The children are to go directly to school from the plaintiff's house.   The defendant may wait with Ryan for the school bus at the end of the plaintiff's driveway.

3. The parties' weekend parenting time shall be on a rotating four-week schedule, with the plaintiff having three consecutive weekends of parenting time, followed by one weekend of parenting time for the defendant, continuing to the end of the calendar year.   The holiday and vacation schedule set forth in the March 2010 separation agreement will supersede but will not interrupt the parties' regular weekend parenting time schedule.   Commencing in 2015, this schedule shall begin on the first weekend in January after the children have returned to school, and it shall continue through the calendar year.   In even-numbered years, the schedule will start with the plaintiff's three consecutive weekends of parenting time.   In odd-numbered years, the defendant's weekend of parenting time shall come first.

BY THE COURT,

HELLER, J.

FOOTNOTES

FN1. This is the plaintiff's second postjudgment motion to modify the dissolution judgment with respect to the parenting plan.   On March 9, 2012, the plaintiff filed a motion seeking the same relief (# 127.01).   The March 2012 motion was marked “off” by the court (Emons, J.) on May 7, 2012..  FN1. This is the plaintiff's second postjudgment motion to modify the dissolution judgment with respect to the parenting plan.   On March 9, 2012, the plaintiff filed a motion seeking the same relief (# 127.01).   The March 2012 motion was marked “off” by the court (Emons, J.) on May 7, 2012.

FN2. Attorney Truax was appointed the guardian ad litem for Kiyana in May 2012, by agreement of the parties (Emon, J.) Attorney Truax's responsibilities were expanded in July 2013, when she became the guardian ad litem for all three children (Schofield, J)..  FN2. Attorney Truax was appointed the guardian ad litem for Kiyana in May 2012, by agreement of the parties (Emon, J.) Attorney Truax's responsibilities were expanded in July 2013, when she became the guardian ad litem for all three children (Schofield, J).

FN3. The court notes that the guardian ad litem was not even appointed until more than two years after the parties' divorce..  FN3. The court notes that the guardian ad litem was not even appointed until more than two years after the parties' divorce.

FN4. The guardian ad litem observed that the children know that the communication between the plaintiff and the defendant is, as she described it, “abysmal.”   She added that having the parties meet to transfer the children would be “abysmal,” as well..  FN4. The guardian ad litem observed that the children know that the communication between the plaintiff and the defendant is, as she described it, “abysmal.”   She added that having the parties meet to transfer the children would be “abysmal,” as well.

FN5. The March 2010 separation agreement provides that the children are to reside predominantly in Greenwich..  FN5. The March 2010 separation agreement provides that the children are to reside predominantly in Greenwich.

FN6. The plaintiff testified that the defendant requested that she drive Ryan to school on Thursday morning after the children's overnight with the plaintiff, and the plaintiff agreed.   The plaintiff takes Kiyana to school, and Matthew walks to school unless the plaintiff takes him, too..  FN6. The plaintiff testified that the defendant requested that she drive Ryan to school on Thursday morning after the children's overnight with the plaintiff, and the plaintiff agreed.   The plaintiff takes Kiyana to school, and Matthew walks to school unless the plaintiff takes him, too.

FN7. The plaintiff testified that a call from Kiyana's school prompted him to hire an au pair.   He said that he built an in-law apartment in the basement of his house to accommodate the au pair..  FN7. The plaintiff testified that a call from Kiyana's school prompted him to hire an au pair.   He said that he built an in-law apartment in the basement of his house to accommodate the au pair.

FN8. The plaintiff said that he considered the defendant's demand that he return the children to her house when their aunt and cousins were visiting to be “malicious.”.  FN8. The plaintiff said that he considered the defendant's demand that he return the children to her house when their aunt and cousins were visiting to be “malicious.”

FN9. The defendant also testified that the plaintiff made it so difficult for her to pick up the children at his house that she acquiesced.   She said that the plaintiff had threatened to call the police if she came on his property, and she did not want to expose the children to that.   Both parties testified, however, that the defendant waited with Ryan for the bus each day at the end of the plaintiff's driveway, with the plaintiff's consent..  FN9. The defendant also testified that the plaintiff made it so difficult for her to pick up the children at his house that she acquiesced.   She said that the plaintiff had threatened to call the police if she came on his property, and she did not want to expose the children to that.   Both parties testified, however, that the defendant waited with Ryan for the bus each day at the end of the plaintiff's driveway, with the plaintiff's consent.

FN10. Article II, Section J of the March 2010 separation agreement contains a “right of first refusal” provision, but it is not applicable during normal work hours, when either party may use “appropriate child care.”.  FN10. Article II, Section J of the March 2010 separation agreement contains a “right of first refusal” provision, but it is not applicable during normal work hours, when either party may use “appropriate child care.”

FN11. In contrast, the March 2010 separation agreement expressly provides that the plaintiff's weekend parenting time begins on Friday at 6:30 p.m..  FN11. In contrast, the March 2010 separation agreement expressly provides that the plaintiff's weekend parenting time begins on Friday at 6:30 p.m.

FN12. The court credits the plaintiff's testimony that the children went to his house after school virtually every day until June 2013..  FN12. The court credits the plaintiff's testimony that the children went to his house after school virtually every day until June 2013.

FN13. As noted above, the parties may use “appropriate child care” during work hours, pursuant to Article II, Section J of the March 2010 separation agreement..  FN13. As noted above, the parties may use “appropriate child care” during work hours, pursuant to Article II, Section J of the March 2010 separation agreement.

FN14. The guardian ad litem also mentioned that she felt that Ryan had been coached by the defendant, because he was using the same words that the defendant used in describing the importance of Sunday evening in preparing for the week ahead..  FN14. The guardian ad litem also mentioned that she felt that Ryan had been coached by the defendant, because he was using the same words that the defendant used in describing the importance of Sunday evening in preparing for the week ahead.

FN15. These provisions are set forth in Article II, Section B (Holidays) and Article II, Section C (Vacations) of the March 2010 separation agreement, as incorporated by reference in the March 31, 2010 dissolution judgment..  FN15. These provisions are set forth in Article II, Section B (Holidays) and Article II, Section C (Vacations) of the March 2010 separation agreement, as incorporated by reference in the March 31, 2010 dissolution judgment.

FN16. The court would encourage the parties and their counsel to consult with each other as soon as possible so that everyone is on the same page with respect to the weekend parenting time schedule for the remaining eleven months of 2014..  FN16. The court would encourage the parties and their counsel to consult with each other as soon as possible so that everyone is on the same page with respect to the weekend parenting time schedule for the remaining eleven months of 2014.

Heller, Donna Nelson, J.