Derrick C. Bell v. Shauna E. Fowler (2014)

MEMORANDUM OF DECISION

This matter comes before the court by way of several postjudgment motions.

Specifically before the court are defendant mother's Motion for Modification (# 112), plaintiff father's Motion for Contempt, Postjudgment (# 113), plaintiff's Objection to Motion for Modification, Postjudgment (# 114), defendant's Objection to Motion for Contempt, Postjudgment (# 115), defendant's Amended Motion to Modify Parenting Agreement, Postjudgment (# 116) and plaintiff's Motion for Modification, Postjudgment (# 117).

AGREEMENT

The parties are the parents of a minor child Deshaun, age 3. They entered into a parenting agreement on October 10, 2012 wherein they share joint legal custody of the minor child and primary residence is with defendant mother.   The parties essentially have a shared parenting plan with mother having parenting time from Monday until drop off at school on Wednesday and father having parenting time every Wednesday after school until drop off at school on Friday morning.   Parents alternate weekends from after school on Friday until Sunday at 5 p.m.

The agreement set forth a Christmas Eve/Christmas/New Year holiday schedule.   The Christmas Eve/Christmas schedule allows the parties to both spend time with the minor child during the holiday.   Additionally, the plan provides as follows:

Parents agree that they may each have 2 weeks of vacation with the minor child with no more than 10 consecutive days.   Parents agree to provide the other parent with dates, location, lodging, travel arrangements and contact numbers 30 days prior to departure.

The court entered an order on December 12, 2012 requiring plaintiff father to pay child support in the amount of $30 per week secured by wage withholding.   The court further ordered father to claim the child as a dependent on his 2012 tax return and “the parties will alternate years for claiming the minor child as a dependent.”

FACTS

Plaintiff father alleges that he was wilfully denied parenting time during Christmas 2013.   Pursuant to paragraph 7 of the parenting plan of October 9, 2012 father was to enjoy parenting time from 5 p.m. on Christmas day until 9 a.m. on December 26.   Paragraph 10 of the plan allowed father to enjoy parenting time on New Year's Day. It is undisputed that on December 22, 2013 defendant mother informed father that she was exercising her 2–week vacation effective December 25, 2013.   Defendant remained at her home for the vacation.   Plaintiff father was unable to see his son until January 3, 2014.

In July 2013 the plaintiff planned a vacation with his son to Jamaica.   He gave the defendant well over 30 days' notice of his plans.   A week prior to his departure, the defendant mother asked Mr. Bell if she could have parenting time on the day prior to plaintiff's scheduled flight as she had never been away from her son for an extended period of time.   The day prior to the flight was plaintiff Bell's regularly scheduled parenting time.   Mr. Bell initially refused but then reconsidered his position.   He contacted defendant Fowler and told her she could spend time with Deshaun that he needed to pick up the child by 5 p.m. as they had an early morning flight departing from John F. Kennedy Airport in New York City.

On the day in question, Mr. Bell reminded Ms. Fowler of the 5 p.m. pick up time.   She eventually responded that she would return the child at 8 p.m. When Mr. Bell insisted, she stated she would return the child at 6:30 p.m. She refused to return the child at 5 p.m. Plaintiff Bell eventually contacted the police and the child was returned to the police station.

Plaintiff Bell also expressed concern that Ms. Fowler had unilaterally removed him as an emergency contact at the child's school.   Bell was informed by school officials that he had been removed as a contact by Fowler.   Defendant added as an emergency contact the child's maternal grandmother and her cousin.   He further alleges that the minor child has been tardy for school on 22 occasions during the 2013/2014 calendar year.   Mother alleges that the child was tardy on 21 occasions but that the period of tardiness was minimal.   Father also alleges that mother has failed to complete parenting education as ordered by the court on December 12, 2012.

Lastly, the issue of child support was raised.   Plaintiff Bell currently pays $30 per week in child support.   He alleges that his child support obligation should be reduced to zero based upon the shared parenting plan that the parties currently enjoy.

ANALYSIS

“Contempt is a disobedience to the rules and orders of a court which has the power to punish for such an offense ․ If the underlying court order was sufficiently clear and unambiguous ․” the issue is whether the violation was “wilful, excused by a good faith dispute or misunderstanding.”  Johnson v. Johnson, 111 Conn.App. 413, 420–21 (2008).

“The fact that an order has not been complied with fully does not dictate that a finding of contempt must enter.”  Auerbach v. Auerbach, 113 Conn App. 318, 326, cert. denied 292 Conn. 901 (2009).  “To constitute contempt, a party's conduct must be wilful.”  Quaranta v. Cooley, 130 Conn.App. 835, 840–41 (2011).

At the outset, before a party can be found in contempt, the court must first determine whether there exists an underlying court order that is clear and unambiguous.   No such order exists relative to the defendant mother's failure to return the child in a timely fashion on the day prior to the departure to Jamaica.   The parties may have had an agreement to alter the parenting time.   A violation of the parties' agreement does not give rise to a finding of contempt.   Rather, defendant mother's actions on the day in question show a callous disregard of father's rights, the fact that father was willing to accommodate her desire to see the minor child before the Jamaica trip, and of the spirit of shared parenting.

The same can be said of mother's unilateral decision to remove plaintiff Bell as an emergency contact at the child's school.   There exists no court order that the defendant has violated.   The court, however, takes note of the defendant's self-serving shameless behavior.

Equally deplorable and in violation of the court order was defendant mother's actions resulting in the loss of father's Christmas and New Year's Day parenting time.   In defense to her actions, mother claims that father is a Rastafarian and therefore he should not be offended by her actions as he does not celebrate Christmas.   She further alleges that she became aware that she had not exercised her 2–week vacation allotment with the minor child and therefore made the decision to exercise said option two days before Christmas.   She further claims that the 30–day notice provision in paragraph 13 of the October 10, 2012 order is only triggered if the parties travel out of the state or out of the country.

The court finds Ms. Fowler's arguments without merit.   Regardless of plaintiff Bell's religious beliefs, the parenting agreement clearly and unambiguously allots him parenting time during the Christmas holidays.   Fowler's interpretation of paragraph 13 is impracticable.   It is an untenable position that a party could take the minor child for 10 days' vacation with as little as two days' notice to the other party.   Moreover, nothing in paragraph 13 of the October 2012 parenting plan limits the 30–day notification to out of state or foreign travel.   The court finds defendant Fowler in contempt for her wilful violation of the clear and unambiguous parenting plan during Christmas 2012.

Both parties seek modifications of the October 2012 Parenting Access Plan. Father seeks an additional overnight from Sunday to Monday drop-off at daycare/school in order to minimize the child's late arrivals at school and avoid contact with defendant mother and the maternal grandmother with whom the defendant resides.¹  Additionally, the parents seek clarification on who may claim the tax exemption, future holiday schedules, and other minor items.

Lastly, both parties submitted current Financial Affidavits.   A Child Support Guideline Worksheet was last prepared in December 2012 showing mother's presumptive child support amount at $103 and father's at $133.²  Pursuant to the Guidelines, father is responsible for 66% of unreimbursed medical expenses and mother's responsibility is 34% of the unreimbursed medical expenses.

ORDERS

1. Defendant's Motion for Modification filed December 31, 2013 (# 112) is denied.

2. Plaintiff's Motion for Contempt, Postjudgment, dated January 6, 2014 (# 113) is granted in part, insofar as it relates to defendant's action over Christmas 2012.

3. Plaintiff's Objection to Motion for Modification, Postjudgment dated January 6, 2014 (# 114) is sustained.

4. Defendant's Objection to Motion for Contempt, Postjudgment, dated January 14, 2014 (# 115) is sustained with regard to paragraphs 4 and 5.

5. Defendant's Amended Motion to Modify Parenting Agreement Postjudgment dated January 14, 2014 (# 116) and plaintiff's Motion for Modification, Postjudgment dated January 15, 2014 (# 117) are both granted in part.   The Modified Parenting Plan is attached hereto.

6. Based upon parents' shared parenting plan, no party shall pay child support.

7. Defendant Fowler is to complete Parenting Education classes by June 2, 2014.   A penalty of $5 per day is imposed for each day she fails to complete the class after June 2, 2014.

8. Defendant Fowler shall pay attorney fees in the amount of $200 to plaintiff's counsel by close of business on April 30, 2014.

PARENTING ACCESS PLAN

1. The plaintiff and defendant shall share joint legal custody of the minor child, Deshaun, born on September 14, 2010.

2. Mother shall have parenting time every Monday until Wednesday drop-off at daycare/school.

3. Father shall have parenting time every Wednesday after daycare/school until Friday drop-off at daycare/school.

4. Mother and father shall alternate weekends from Friday after daycare/school until drop-off at daycare/school Monday morning.

5. Mother and father shall share the Thanksgiving holiday each year, alternating the schedule time from 9 a.m. until 3:30 p.m. and from 3:30 p.m. until 9 a.m. the following Friday.   In odd numbered years, father shall have the morning schedule (9 a.m. until 3:30 p.m.) and mother shall have the afternoon schedule (3:30 p.m. until 9 a.m. the following Friday).   The morning and afternoon schedule shall reverse in even numbered years.

6. Mother shall have parenting time on Christmas Eve each year from 12 noon until 5 p.m. on Christmas Day.

7. Father shall have parenting time on Christmas day from 5 p.m. until 9 a.m. on December 26.

8. Mother shall have parenting time on Easter Sunday each year from 9 a.m. until 7 p.m.

9. The parents shall share the minor child's birthday each year.   Each parent shall have 2 hours with the minor child from 4 p.m. to 8 p.m. Parenting time on the minor child's birthday may be extended by agreement of the parties.

10. Mother and father shall alternate the following remaining holidays as follows:

New Year's Eve Mother to have even years and father odd years

New Year's Day Father to have odd years and mother even years

Memorial Day Mother to have odd years and father even years

4th of July Father to have odd years and mother shall have even years

Labor Day Mother to have odd years and father shall have even years

11. Mother shall have parenting time each year on Mother's Day from 9 a.m. until 7 p.m.

12. Father shall have parenting time each year on Father's Day from 9 a.m. until 7 p.m.

13. The parents shall each have two weeks' vacation with the minor child with no more than 10 consecutive days.   The parent exercising the vacation option shall provide 60 days' notice via email to the other parent.   Each parent will provide the other parent with vacation plans.   The information to be provided includes, but is not limited to, location of vacation, travel arrangements (if applicable), dates, lodging, and contact phone numbers.   The notice shall be provided thirty days prior to the vacation.   The aforesaid vacation shall not be exercised during the Christmas/New Year holiday schedule.

14. The parents may each have one daily telephone call with the minor child while in the care of the other parent.

15. Neither parent shall permanently remove the minor child from the State of Connecticut without written agreement from the other parent.

16. The parents shall share the minor child's passport.

17. Father shall claim the child as a tax exemption on even years and mother shall claim the child as an exemption in odd years.

18. Both parents shall be listed as emergency contacts at the child's daycare/school and with respect to all extra-curricular activities.

19. The parties shall cooperate in selecting the best CREC (Capitol Region Education Council) school/program for their child.

SO ORDERED.

BY THE COURT,

Ficeto, J.

FOOTNOTES

FN1. Plaintiff and the maternal grandmother have an acrimonious relationship..  FN1. Plaintiff and the maternal grandmother have an acrimonious relationship.

FN2. Parties' income has remained fairly consistent..  FN2. Parties' income has remained fairly consistent.

Ficeto, Anna M., J.