John D'Amato v. Dianne Hart D'Amato (2014)

MEMORANDUM OF DECISION

This dissolution of marriage action was heard by the court over a six-day period, commencing on Monday February 24, 2014 and concluding on Tuesday March 4, 2014.   During the trial, the court heard testimony from a number of witnesses, including the two parties, the family relations officer who performed the most recent evaluation, the defendant's father, her mother, her two sisters, her therapist, a Department of Children and Families (DCF) investigative social worker,¹ and the Guardian ad litem (GAL).   Brief testimony regarding billing was also given by Attorney Christopher Goulden, who had been appointed by the court to represent the GAL at one point in the proceedings.   In addition to the several witnesses, there were many items placed into evidence as full exhibits.

Unfortunately, this matter has been pending for a very long time.   The return date on the complaint was December 6, 2011.   By the time the trial commenced, this case had been pending for over two years.   It had apparently been docketed for trial earlier, but that was delayed for a variety of reasons and it was declared a mistrial in June of 2013.   It was at that time that the matter was referred to the Regional Family Trial Docket.   One of the reasons for the delay in bringing this matter to trial was that it has been a highly contentious case with docket pleadings exceeding three hundred items.   At the start of the trial, there were more than ten outstanding motions to be resolved.   The court will rule on those motions as a part of this decision.

The basic facts are as follows.   The parties were married on June 24, 1989 in Monroe, Connecticut.   The plaintiff is presently fifty years old and is a letter carrier for the United States Postal Service (USPS).   He started employment with the USPS in November of 1995, and has been so employed for the entire marriage.   Prior to USPS, he had been employed briefly at Citi Trust and at Sikorsky Aircraft.   He holds a college degree in finance.   Presently, the plaintiff lives in a rented condominium in Monroe with the two minor children issue of the marriage.   The newly married couple lived in a condominium owned by the plaintiff for several years before they purchased the present marital home in 1993, located at 165 Lounsbury Road, Fairfield.   They did not sell the condominium at that time, but rather used a gift of $100,000 from the plaintiff's father for the down payment.   The condominium was sold at a later date.

The defendant is currently forty-nine years old.   She worked as a waitress when the couple first married, but started working for the Judicial Branch as a juvenile probation officer in 1990.   The defendant is still so employed at this time.   She has a college degree in criminal justice.   At the time of the trial, the defendant was residing alone in the marital home in Fairfield.

The parties have two daughters.   The first child was born in late spring of 1998, and their second daughter was born in the fall of 2002.   At the time of the trial, they were fifteen (15) and eleven (11) respectively.   It is the custody of these two young ladies that forms the most significant dispute between the parties, but certainly not the only one.

It is clear that historically the defendant had been the primary parental figure in the lives of these children.   The plaintiff, especially once he began to work for USPS, had a demanding and inflexible work schedule, which in the past included working on every Saturday.   The defendant, on the other hand, was able to manage her work schedule around many of her parental duties.   Problems soon developed surrounding the defendant's growing issues with alcohol.   Much of the testimony at the trial centered on this problem and some facts are not in dispute.   On New Year's Eve of 2011, the defendant became so intoxicated that she passed out and was hospitalized.   That event was clearly, in the words of the GAL, the watershed event in this family's history.   In disagreement, however, is how much and how frequently the defendant drank prior to that incident, and whether she has since dealt with that issue in an adequate manner.

The defendant claims that she did not drink that much and that when she did drink, she was simply trying to cope with an emotionally abusive husband.   The plaintiff testified that drinking was a serious concern for many years prior to that New Year's Eve event, and that he even sought help from her family to deal with the problem.   According to his testimony, the defendant started drinking seriously after the birth of their first child, but it became problematic after the birth of their second daughter.   He claimed that she would drink heavily on Sundays, the day he was home, but resisted his efforts for her to seek help.   According to the plaintiff, by 2003 and 2004, she was hiding bottles to cover her alcoholism.   By September of 2006, the problem with her drinking became so bad that he reached out to his mother-in-law for help.   He stated that the couple had gone to a concert, and that the defendant had become so intoxicated at the event that he had to physically help her walk to the car.   When she passed out and once they returned home, he made the call.   It was, according to him, the first time he spoke to anyone about his wife's drinking.   Fran Hart, the defendant's mother, was called as a witness by the defendant.   During her testimony she did confirm that the plaintiff had called her about this issue.   She testified that the call came maybe in May of 2010 or perhaps earlier.   She did not know if what he told her was true and the defendant never told her anything about any marital difficulties until after the New Year's Eve incident.   She admitted that she took no action, although she may have raised the topic with her daughter, but to no avail.

Credibility is, of course, a major issue in all trials.   Family trials are no different and, perhaps, even worse.  “It is the sole province o] the trial court to weigh and interpret the evidence before it and to pass on the credibility o] the witnesses ․ It has the advantage of viewing and assessing the demeanor, attitude and credibility of the witnesses and is therefore better equipped than we to assess the circumstances surrounding the dissolution action.”  (Emphasis in original;  internal quotation marks omitted.)   Zahringer v. Zahringer, 124 Conn.App. 672, 679–80, 6 A.3d 141 (2010).

The defendant's family all testified that they really did not know anything about her problems until after she was hospitalized.   That testimony was not credible.   In addition to the defendant's mother's admission that the plaintiff had reached out to her for help, the hospital records from the defendant's detoxification at St. Vincent's Hospital in Bridgeport contain family comments to the hospital staff that they knew the defendant was drinking heavily and even driving her children while intoxicated.   The GAL had access to those records as part of his duties and he testified as to their contents, which played a role in the development of his parenting plan recommendations for the court.   He testified that the defendant herself told the intake staff that she had been drinking most of her adult life and would routinely drink large amounts of vodka daily.   The records, according to the GAL, indicated that her alcohol blood level was .448 when admitted, and that the diagnostic work up of the defendant reported that she had a GAF score of 25 a few days after her admission.²  Such a score indicates that the patient's “[B]ehavior is considered influenced by delusions or hallucinations OR major impairment in several areas such as work or school, family relations, judgment, thinking or mood.” ³  The plaintiff offered a photograph he took of the defendant while she was intoxicated and offered that photograph into evidence.   Plaintiff's Exhibit # 21.   The defendant objected to the exhibit at first, but after a brief voir dire, she withdrew the objection and the photograph was entered as a full exhibit without objection.   It shows the defendant asleep lying on the bathroom floor next to the toilet on October 6, 2006.   He testified that when he confronted her with the photograph in an attempt to prove to her that she had a drinking problem, she told him she was just tired and had taken a nap.

The hospital staff referred the defendant to DCF based on the information that her drinking had taken place with the children in the home.   DCF commenced an investigation and, as a result of that inquiry, substantiated physical and emotional neglect on the part of the defendant.   Plaintiff's Exhibit # 31.   Testimony later indicated that upon appeal, the physical neglect substantiation was reversed by DCF.

The GAL testified that the minor children told the DCF investigator that they knew their mom had been drinking for a long time and that she had driven with them in the car while intoxicated more than once.   The court heard considerable testimony about one such incident that occurred in December 2011, in which the defendant drove to pick up her oldest daughter and some of her friends from a bar mitzvah party they had been attending.   According to the daughter, her mother was intoxicated and hit the retaining wall in their driveway with her car.   The defendant refused to discuss the issue of her alcoholism with the DCF investigator, but she did admit to the family relations counselor that she had driven with the children after having a drink;  she denied being intoxicated while driving with the children.

The court has no doubt that the defendant was abusing alcohol for a long period of time, at least as far back as fall of 2006 and probably even earlier.   Clearly, the problem reached its nadir on December 31, 2011.   Since that time, however, there is no evidence at all to indicate that the defendant has continued to abuse alcohol.   She claims that she has remained sober since that incident and no one has offered anything of substance to contradict that claim.   The defendant called her therapist as a witness.   Michael Reitman is a licensed clinical social worker, and a licensed alcohol and drug counselor.   He has been treating the defendant since she left St. Vincent's in January of 2012.   He testified that the defendant has been successful in maintaining her sobriety and believes she is highly motivated to remain sober.   He continues to see her to the present, although on a much less frequent schedule.   When asked about more, or different types of, treatment for the defendant, he indicated that they did discuss things such as AA, but that she did not think that was right for her.   The GAL testified that in his discussion with Reitman, the therapist had reported that he had recommended more intensive type treatments and that he had recommended she attend AA. The defendant refused any other form of treatment and Reitman reported to the GAL that he had continued to urge her to reconsider that decision.   That was not his position by the time he testified at the trial.

While the court believes that the defendant has been successful in maintaining her sobriety since January 1, 2012, the court also believes that the defendant continues to minimize her alcohol-related problem.   Reitman testified that the defendant's diagnosis is alcohol dependence and not an alcohol abuse.   An abuser, according to the therapist, is someone whose ability to function is impaired by alcohol, while an alcohol dependence would be a person who functions on a daily basis, but would suffer withdrawal if that person stops drinking.   He was quite clear that such a person can develop a resistance to the side effects of alcohol and the dependence does not go away.   The defendant, according to her therapist, must be vigilant as to this problem for the rest of her life.   Her testimony during the trial attempted to convince the court that being drunk was a reaction to abuse and not a long-term problem.   Her family supports her in this revisionist view of her marital history.   It is simply not true and the defendant's efforts to cast her drinking issues as almost a bump in the road is very troubling.⁴

The impact of the defendant's drinking on her children has been quite significant.   The defendant has tried to convince the court that it is the plaintiff's efforts to alienate the children from her that has caused such a rift.   Certainly, the plaintiff has played a role in the children's behavior and attitudes toward their mother, but that is not the full story.   According to her testimony, the defendant continued to be primarily in charge of the girls from the time she returned to the marital home in late-January 2012 until mid-October 2012, when it was agreed that the plaintiff and the children would relocate out of the marital home to reduce the strife to which the children were being exposed.   She was with them virtually all week, including Saturdays and most Sundays.   She testified that the children were happy and engaged with her and her extended family;  that the plaintiff did not interfere or object to her activities with the girls.   The plaintiff did not offer any evidence or testimony that the schedule she presented to the court was not true and accurate.   However, even during this period of her essential control of the children, they were reporting in very negative terms their feelings about her to third parties, such as the family relations counselor, their therapists, and the GAL.

The defendant and the children were in therapy with Laura Matefy, Ph.D. for a period of time.   She last saw the mother and children in June of 2013.   The updated family relations evaluation, which was completed on October 16, 2013 by family relations counselor Kathleen Goncalves, reported that although there were “good moments in therapy” between the mother and daughters, the defendant's inability to accept responsibility for her actions without blaming the plaintiff was an ongoing issue that blocked further progress.   That theme was repeated by the GAL in his testimony.⁵

It was the GAL's opinion, based on his work with this family and his meetings with his wards, that the defendant's refusal to truly accept responsibility for her alcoholism without blaming anyone else is primarily preventing any healing between her and the girls.   Also contributing to the children's negative relationship with their mother, is her continuing minimization of her alcoholism.   He reported in some detail just how significant her drinking was in the lives of the minor children.   The older daughter reported memories of her mother being drunk as far back as when she was seven (7) years old.   Other witnesses, including the defendant herself, have confirmed that the defendant has cursed at the two children while intoxicated.   She rationalized that behavior by saying she said those things quietly and under her breath;  she did not think the girls could hear her.   The youngest daughter actually had a journal, according to the testimony of the GAL, that spoke about her mother's drinking, the arguments that occurred while she was intoxicated and how it made her feel afraid.   Certainly, the plaintiff did not do enough to encourage the children to spend time with their mother, but he did not alienate them from the defendant.   Her behavior did, and continues to, alienate the children.

The minor children need to know that their mother is maintaining her sobriety and that they do not need to fear being with her at any time.   Such reassurance will require a total commitment on the part of the defendant to remain sober, as well as a willingness to support that commitment with objective evidence in the way of random testing at least for a period of time.

The defendant's unwillingness to truly accept responsibility for her actions had another negative consequence for this family.   This case went on far too long and the responsibility for that must be placed primarily at the feet of the defendant.   For whatever reason, the defendant failed to participate fully and in a timely manner with the efforts of others to resolve this dispute.   She did not participate fully in the Family Relations evaluation.   The defendant refused to authorize communications between the family relations counselor and one of the therapists assigned to work with the children.   Quite frankly, this court has never heard of a parent blocking access to a therapist by a court-appointed evaluator.   The defendant raised issues as to the competence of that therapist, but that does not warrant her actions.   Such complaints should have been addressed to the court in a motion or dealt with in cross examination.

The selection of a co-parenting counselor was unduly delayed at least in part due to the procrastination of the defendant.⁶  The same was true for arranging counseling for the minor children.   Once acceptable therapists were found, the defendant ended the therapy more than once, claiming the therapist was not working well with the parties or the children.   Additionally, the defendant did not appear to meet with the family relations evaluator until October 2013, when the update had been ordered on August 21, 2013.   Her records show that after the first meeting with the parties on September 10, 2013, the counselor could not get a meeting with the defendant until October 10, 2013.   Even the GAL had trouble getting the defendant to meet with him at the very beginning of his work.   Finally, the defendant, according to the testimony of the GAL, was very reluctant to even participate in the family relations study initially done in 2012.   It was reported that she was very concerned about the family relations information becoming available to her supervisors and co-workers claiming that juvenile probation and family relations share the same computer system.   She may have believed that, but there was no evidence that such was the case and, once again, simply not cooperating is just not acceptable.   The matter needed to be brought to the attention of a supervisor or the court if that was a genuine concern on her part.   The impression left on this court is a parent who is hiding something and not willing to cooperate with efforts to resolve this case in a timely manner.

Certainly, the plaintiff played a significant role in the failure of this marriage.   The defendant described him as a rather cold and emotionally abusive person.   The plaintiff was not able to counter that perception, but what will never be known is whether his behavior caused the defendant's reliance on alcohol or whether her abuse of alcohol caused his cold and emotionally abusive reaction.   It is also uncontroverted that it was the plaintiff who refused to participate in co-parenting counseling after storming out of a session.   Clearly, he bears some degree of fault for the failure of the marriage and the horrendous family situation that existed from February 2012 until October 2012, when he and the children vacated the marital home.   He also bears a degree of fault for the lack of meaningful contact between the children and their mother in the time following the physical separation of the parties.   The fact that the children were more compliant with the court-ordered access schedule after the plaintiff was held in contempt for failing to ensure such compliance, indicates he could have done much more to assist the children in that regard.   However, the greater degree of the fault must be placed on the defendant for the problems both before and after the commencement of the dissolution action.

One such area of concern is the behavior of both parents during the defendant's parental access time after the separation in October 2012.   The defendant believes the plaintiff interfered with her time with the girls by remaining in close proximity, e.g., staying in his car parked outside the restaurant in which the visitation was taking place and texting the children during the visitation.   If true, those are not examples of good parental judgment on his part.   The defendant, however, may well have contributed to the problems by ignoring the court order stating she is not to have family members present during the meetings and by having other video taping parts of the visitation.   According to the testimony of the GAL, those actions offended and troubled the minor children.   There is no doubt that the children have strongly aligned themselves with their father, but the fact that such an alignment grew and intensified during the approximate ten-month period when she was clearly the primary parent suggests that many of her actions were seen by the children as harmful to them.

General Statutes § 46b–56(b) provides in relevant part:  “In making or modifying any order [with respect to custody or visitation], 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.”  “The best interest of the child standard is the ultimate basis of a court's custody decision.”   See Knock v. Knock, 224 Conn. 776, 789, 621 A.2d 267 (1993).  “Among the various factors the court may consider when determining the best interest of the child are the parties' parenting skills ․ the child's emotional ties to each parent ․ and the psychological instability of the parent and whether the child is in a stable and loving environment ․ The court may also take into account the recommendations of the child's therapist ․ as well as the child's guardian ad litem.”  (Citations omitted.)  Janik v. Janik, 61 Conn.App. 175, 181, 763 A.2d 65 (2000).

“Either parent can be awarded custody and the issue ‘is not which parent was the better custodian in the past but which is the better custodian now.’   Yontef v. Yontef, 185 Conn. 275, 283, 440 A.2d 899 (1981).   Furthermore, as articulated in Reza v. Leyasi, 95 Conn.App. 562, 568, 897 A.2d 679 (2006), ‘[t]he well-being of the child rather than the punishment or reward of the parent ought to guide every custody case ․’ “ (Emphases added;  internal quotation marks omitted.)   Berger v. Finkel, Superior Court, judicial district of Stamford–Norwalk, Docket No. FA–08–4015315–S (April 18, 2012, Calmar, J.).

At this time, the recommendations of the family relations evaluation and of the GAL are to honor the strong and consistent preference of the minor children to have very limited contact with the defendant.  “The court may also take into account the recommendations of the child's therapist ․ and the child's guardian ad litem.”  (Internal quotation marks omitted.)  Daddio v. O'Bara, 97 Conn.App. 286, 297–98, 904 A.2d 259 (2006) (seen in the context of determining custody).   Actually, they would prefer no contact, but neither witness was willing to recommend that and neither will the court.  “[W]hether the child's preferences and feelings as to custody and visitation are a significant factor in the court's ultimate determination of the best interest of the child will necessarily depend on all the facts of the particular case, including the child's age and ability intelligently to form and express those preferences and feelings ․ Section 46b–56(b) does not require that the trial court award custody to whomever the child wishes;  it requires only that the court take the child's wishes into consideration ․ The ultimate concern of the trial court is to decide what is in the best interests of the child ․ Although the child's wish is one factor for the court to consider in making that decision, it is certainly not the only one ․ [E]ven when [a child's preference] is elicited, the information may be of questionable accuracy.   A child caught up in the maelstrom of family strife may produce, to the psychologically untrained eye and ear, distorted and thus misleading images not only of the child's parents but of the child's own feelings;  and those feelings themselves may be transient.”  (Citations omitted;  footnote omitted;  internal quotation marks omitted.)  Azia v. DiLascia, 64 Conn.App. 540, 547, 780 A.2d 992 (2001).

The best interests of the children are served here by having a meaningful relationship with both parents.   The problem, of course, is how to effectuate that especially given the fact that the girls both have extremely strong views and at least one child is almost sixteen years old.   The solution has been made more difficult by the fact that they have not had good therapeutic experiences during the pendency of the trial.⁷  While the court can understand the opinion of the minor children, it also firmly believes that their relationship with their mother will never mend without some professional assistance.

In her revised proposed orders (docket item # 327.00), the defendant seeks joint legal custody of the children with the plaintiff and for the children to live primarily with her.  General Statutes § 46b–56a defined “joint custody” as “an order awarding legal custody of the minor child to both parents, providing for joint decision-making by the parents and providing that physical custody shall be shared by the parents in such a way as to assure the child of continuing contact with both parents.”   Joint legal custody involves equal sharing of decisions regarding a child's welfare, such as education, religious instruction, and medical care.  Zitnay v. Zitnay, 90 Conn.App. 71, 875 A.2d 583, cert. denied, 276 Conn. 918, 888 A.2d 90 (2005).  “[Section 46b–56a], read as a whole, reflects a legislative belief that joint custody cannot work unless both parties are united in its purposes.”  (Emphasis added.)   Emerick v. Emerick, 5 Conn.App. 649, 658, 502 A.2d 933 (1985).   Ultimate decision as to joint custody rests with trier of fact and must be based on all of the testimony and factors that are properly brought before court, including ability of trier to observe demeanor and manner in which witnesses answer pertinent questions.  Timm v. Timm, 195 Conn. 202, 487 A.2d 191 (1985).

The defendant's request for joint legal custody is shocking based on the reality of this case and truly demonstrates the defendant's total lack of insight into her children and the impact her alcoholism has had on them.   It might also suggest that her current therapy is not sufficient to adequately deal with the problems the defendant must confront.   She and the plaintiff have not been able to communicate on any meaningful level for a very long period of time.   While such a lack of co-parenting communication is not completely her fault under any sense of the concept, it is simply not a viable path for protecting the minor children and promoting their best interests at this time.

Although most of the trial was focused on custody issues, there were financial matters in dispute and there were several pendente lite motions in question as well.   Several of major disputes centered around the marital home.   Whether to sell it was one issue, responsibility for certain tax and sewer bills was another, and the validity of a mortgage was a third.

The tax issue is the simplest to deal with and it shall be addressed first.   The stipulation of the parties dated October 18, 2012, which was approved by the court and made an order (docket item # 172.00) set forth the arrangements for the physical separation of the parties.   Under that order, the defendant was to remain in the marital home and be “responsible for all bills related to the Fairfield residence.”   The plaintiff asserts that under this provision the defendant should have paid the tax and sewer use bills that were issued after he vacated the home.   There is no dispute that the town of Fairfield issued tax bills and sewer use bills for the property.   The defendant argues that even though the bill arrived after the separation, they were bills for taxes and sewer usage that had accrued prior to the separation.

The defendant is correct.   The two tax bills in question are for the tax years 2011 and 2012.   Fairfield pays its taxes in quarterly installments and pays in arrears, i.e., the town's Grand List for 2011 is billed in 2012 and so on.   This is very common to most towns in the state.   At real estate closings, for example, the seller routinely gives the buyer a credit against taxes that accrued before the closing but would not become due and owing until after the closing.   This is exactly the same situation.   The 2011 tax bill is a joint obligation even though it might not have actually mailed to the residence until after the separation because it is for taxes that accrued when both parties resided in the house jointly.   The 2012 tax bill would be a joint obligation for the first eleven months of the year and the defendant would be solely liable for the taxes accrued during November and December 2012.   Any taxes accrued during 2013 and 2014 would be the defendant's responsibility.   The evidence;  plaintiff's exhibit # 10;  indicates that a total of $2,029.15 was paid against the 2011 tax bill, but no evidence was offered that such payment did not come from marital funds.

The issue of the mortgage is more complicated.   According to the testimony of both parties they did receive a large amount of cash from the plaintiff's brother in late November 2004.   The defendant admits the money came but could not recall the exact amount.⁸  The plaintiff submitted into evidence a copy of the check in the amount of $100,000;  plaintiff's exhibit # 8;  there is no reason to not belief that was the amount.   The plaintiff claims it was a loan and the defendant claims that it was a gift.   The defendant testified that she was very uncomfortable receiving such large sums of money from her in-laws and that she even wrote a thank you note to her mother-in-law for the check.   It is not disputed that they received the money and they spent the money on a variety of house-related items including paying off their first mortgage.   Plaintiff's Exhibit # 9.   A few months prior to the commencement of this action, the plaintiff signed a mortgage to his brother to secure the claimed obligation.   Plaintiff's Exhibit # 7.   He explained the seven-year delay in having a formal mortgage on it having been a friendly family obligation.   It was only with the growing marital problems and a likely divorce proceeding on the horizon that his brother wanting some formal protection.   The mortgage is signed only by the plaintiff.   No note was produced and no evidence of regular payments to the brother was produced.   It would certainly appear to have been a gift, but in any regard, despite the benefit the defendant obtained from the money, it is the plaintiff's obligation because he is the one who encumbered the property.⁹  Whether he is actually required to pay the debt in order to release the mortgage is between him and his brother.

The last issue related to the home is whether it should be sold.   No appraisal as to the value of the home was presented to the court and neither party testified as to its value.   The plaintiff lists the value on his most recent financial affidavit at $500,000 and the defendant puts it at $440,000.   The property has considerable equity either way and even considering the $100,000 mortgage on the land records.   Since the minor children now reside in Monroe and attend Monroe schools, there is no substantive reason to maintain the house especially because it is occupied only by one person and there are very substantial financial obligations facing both parties.

There is also a dispute over the transfer of a motor vehicle from the plaintiff to the defendant.   As part of the October 18, 2012 stipulation and order referred to above, the plaintiff was to transfer the title to a Nissan Frontier to the defendant and she was to be solely responsible for the costs of owning and operating the vehicle.   One year later, the plaintiff received a delinquent notice for an unpaid toll on a New York toll road by a driver of the motor vehicle and, as a result of that communication, learned that the title and registration for that vehicle has never been changed despite the fact that he claimed the title had been given to her.   Plaintiff's Exhibit # 15.   He offered the title with his signature on the transfer box, and testified that he gave it to his attorney to pass on to her attorney to give to the defendant.   The defendant testified she had never received it.   The fact that the defendant never raised the issue in a contempt motion for over a year would suggest that she did receive the transfer of the title and simply never acted on it.   However, without clear proof that she actually received it, the court cannot make a finding of contempt as requested by the plaintiff.¹⁰

“[A] court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was wilful ․ [A] contempt finding is not automatic and depends on the facts and circumstances underlying it ․ Dickinson v. Dickinson, 143 Conn.App. 184, 188–89, 68 A.3d 182 (2013).[I]t is well settled that the inability of [a] defendant to obey an order of the court, without fault on his part, is a good defense to the charge of contempt ․ The contemnor must establish that he cannot comply, or was unable to do so ․ It is [then] within the sound discretion of the court to deny a claim of contempt when there is an adequate factual basis to explain the failure ․ Ahmadi v. Ahmadi, 294 Conn. 384, 398, 985 A.2d 319 (2009).   Whether [a party] establishe[s][an] inability to [perform as ordered] by credible evidence is a question of fact.”  Mekrut v. Suits, 147 Conn.App. 794, 799–80 (2014).

Having reviewed carefully the testimony of the parties and the other witnesses including their demeanor while on the stand, having reviewed the items presented to the court as evidence and having considered the statutory criteria of the appropriate statutes, as well as the case law of our state, the court makes the following findings of fact:

A. The court has jurisdiction over this matter;

B. All statutory stays have expired;

C. The allegations of the complaint have been proven;

D. The marriage has broken down irretrievably and there is no reasonable hope of reconciliation;

E. There are two children issue of the marriage, to wit:  Summer, born June 11, 1998 and Starr, born October 23, 2002;

F. Neither party nor the child has been the recipient of any state or municipal assistance during the marriage;

G. The defendant bears the greater fault for the breakdown of the marriage;

H. It would have been the intention of the parties had they remained an intact family to support their children to the best of their ability in the post-secondary educational goals of said children;

I. The best interests of the children require an order of sole legal and physical custody;

J. The best interests of the children also require the defendant to maintain her sobriety and totally abstain from the use of alcoholic beverages;

K. The presumptive child support as determined by the Connecticut Child Support Guidelines ¹¹ would suggest that the non-custodial parent pay to the custodial parent $252 weekly and that the parties share unreimbursed medical/dental expenses and child care, with the plaintiff paying 53 percent and the defendant paying 47 percent;

L. The parental access plan must take into consideration the very negative feelings that the minor children currently have for the defendant;

M. Therapeutic intervention for the parties and the children will be required to assure a reasonable relationship between the minor children and their parents;

N. The plaintiff has, or had at the commencement of the litigation, deferred income assets estimated to total of $278,928, including his estimated pension benefit, his Post Office thrift saving plan, UTC 401k and IRA;

O. All such deferred income assets are deemed to be assets of the marriage and subject to equitable distribution under General Statutes § 46b–81, whether they currently exist or had been spent pending the litigation;

P. The defendant has deferred income assets consisting of her State Employees Retirement System pension consisting of a hazardous duty Tier II plan with a value as of January 1, 2013 of $822,607; ¹²

Q. The deferred income assets of both parties were earned entirely within the marriage;

R. There is insufficient evidence to support a finding of contempt as requested by the plaintiff in his motions # 297.00 and # 309.00;

S. There is sufficient evidence to support a finding of contempt as requested by the plaintiff in his motions # 306.00 and # 307.00 in that members of her extended family were allowed to attend and participate in a scheduled parental access session in violation of the court's clear order to the contrary;

T. Plaintiff's motions # 298.00, # 299.00, and # 308.00 were not addressed sufficiently for the court to take any action or they are subsumed by the final orders of the court in this Memorandum of Decision;

U. The legal fees incurred by the GAL for his representation by Attorney Christopher Goulden, as ordered by the court in the amount of $11,300 are found to be fair and reasonable based on the services rendered, the experience level of the attorney and in consideration of fees charged in the general Fairfield County area by other members of the bar for similar services;  and

V. The legal fees incurred by the GAL in the performance of his duties in this matter in the amount of $58,934.17 ¹³ are found to be fair and reasonable based on the services rendered, the experience level of the attorney and in consideration of fees charged in the general Fairfield County area by other members of the bar for similar services.

In light of the findings of the court and in consideration of all of the factors enumerated above, the court hereby ORDERS

I. The marriage of the parties is dissolved.

II. The custody, both legal and physical, of the two minor children is granted to the plaintiff.

III. The defendant shall have parental access to the minor children as follows:

A. On a three-week rotating basis.

1. Three (3) hours with the minor child Starr the first week;

2.  Three (3) hours with the minor child Summer the following week;

3.  Three (3) hours with both children the third week;

4.  The parental access shall begin at the Panera Bread restaurant parking lot in Fairfield and shall run from 5 p.m. to 8 p.m. on Sunday;

5.  The plaintiff shall transport the children to and from such meetings, but he shall not remain in said parking lot or in the general vicinity during the access time;

6.  The day and specific times may be changed by written agreement of the parties so long as the frequency and the length of the visits is not altered;

7.  The defendant shall not drive with the children during such parental access time, but may move from location to location as desired;

8.  The defendant shall not permit any third party to participate in her parental access time with the minor children.

B. Therapeutic access.

1. Commencing no later than June 6, 2014, the plaintiff and the minor children shall engage in counseling with a therapist selected by the GAL;

2.  Said counseling shall have as its goal the reestablishment of a more normal relationship between the defendant and the minor children;

3.  Said counseling shall continue on a frequency and duration as directed by the therapist;

4.  When appropriate, at the sole professional discretion of the therapist, the defendant shall be included in said counseling in a fashion and on a schedule as directed by the therapist;

5.  Both parties shall cooperate with the recommendations and scheduling of the therapist, including but not limited to individual sessions with said therapist if so directed;

6.  The therapist shall report any and all lack of cooperation and good faith participation to the GAL who shall, upon receiving such report, request an immediate status conference with the court;

7.  The therapist may recommend to the parties and the GAL modifications of the restrictions imposed on the parental access schedule and such modifications may be adopted by the written agreement of the parties.   Said agreement not to be unreasonably withheld;

8.  Said counseling shall last until the parties are released by the therapist or June 30, 2015, whichever first occurs;

9.  The out of pocket cost of such counseling shall be shared equally by the parties;

10.  The duties of the GAL shall continue for so long as the counseling remains active and in place and the parties shall share equally in the cost of such service at the rate of $350 per hour.

C. Holiday access.

1. The defendant shall have parental access to both minor children on holidays as follows.

a. Three (3) hours on December 25th from 1 p.m.–4 p.m.;

b. Three (3) hours on Mother's Day from 5 p.m.–8 p.m.;

c. Such other time and days as recommended by the therapist and agreed to by the parties;  agreement not to be unreasonably withheld;

d. There shall be no restrictions as to third-party participation or location for the Christmas access, but the no driving restriction shall continue to apply;

D. It shall be the goal and expectation that the parental access between the defendant and the minor children shall increase over time;

E. The therapist for the family shall be given a copy of this Memorandum of Decision by the GAL prior to the start of any counseling.

IV. Miscellaneous custodial orders.

A. All parental access by the defendant with the minor children shall be conditioned on her maintaining total sobriety for alcoholic beverages.

1. The defendant shall submit to random alcohol testing utilizing the SoberLink technology as administered by an independent testing facility selected by the GAL;

2.  Such testing shall continue for a minimum of six months from the date of this Judgment or until further order of the court;

3.  Such testing shall be administered on a random schedule as developed by the testing facility appropriate to assure total abstinence on the part of the defendant;

4.  A positive test, or failure or refusal to take a requested test, shall cause the defendant's weekly access to the children to be immediately cancelled subject to further order of the court;

5.  The GAL shall be the person authorized to receive reports of failed or refused tests and shall contact the plaintiff upon receiving such notice and direct him to cancel all access other than the therapeutic access that might be in place at that time.   The GAL will also contact the defendant with such information;

6.  The cost of such testing shall be paid by the defendant.

B. The plaintiff shall send to the defendant every Tuesday and Saturday a detailed email describing the children's activities both in and out of school, advising of upcoming events including, but not limited to, medical appointments, religious celebrations outside of the plaintiff's home, school presentations and/or honors, sporting activities, and other extra curricular or enrichment type activities.

C. The defendant may attend events involving the children outside of their home if approved by the therapist and the counseling detailed above.

D. The plaintiff shall notify the defendant as soon as it is reasonably possible of any emergency medical treatment involving the children.

E. The minor children shall be free to contact the defendant by phone, email, text or other means at any time that they desire, and the plaintiff shall not interfere with such contact unless as a part of a legitimate discipline regime.

F. Neither party shall speak of the other parent in a demeaning or derogatory manner and shall take all reasonable steps to prevent other parties from such behavior.

G. Each party shall take all reasonable steps to encourage a positive relationship between the two minor children and the other parent.

V. The defendant shall pay child support to the plaintiff in the amount of $252 weekly commencing as of the week beginning on March 16, 2014.

VI. The defendant shall contribute 47 percent of all unreimbursed/uncovered medical/dental expenses defining that term in its broadest sense so as to include rather than exclude such an expense.

VII. The defendant shall contribute 47 percent of all reasonably necessary child care so as to allow the plaintiff to maintain his employment, and summer camp or summer programs shall be considered as such child care if the reason is appropriate under the Child Support Guidelines.

VIII. The court shall retain jurisdiction as to future motions seeking post-secondary educational ordered pursuant to General Statutes § 46b–56c.

IX. The plaintiff shall maintain medical and dental insurance coverage for the two minor children for as long as they are eligible under the terms of his plan.

X. Each party shall continue to maintain the life insurance coverage that they presently have through their employment for the benefit of the minor children so long as they have any financial obligation to support such children including post-secondary educational orders that might be made in the future pursuant to the statute and findings of this decision.

XI. The defendant's support obligation shall be secured by a contingent wage withholding order.

XII. For all income filing purposes, the plaintiff shall claim the youngest child as a dependent and the defendant shall claim the older child.   When there is only one child available for the dependency exemption the parties shall alternate annually with the plaintiff taking the first such year and the defendant the next year.

XIII. The People's Bank accounts currently held by the plaintiff for the benefit of the two minor children shall continue to be held by him.

A. Said funds shall be used for the benefit of the minor children as decided by both parents and no funds shall be withdrawn from either account without the written consent of both parents.

B. The plaintiff shall account to the defendant as to the balance in said accounts on June 2, 2014 and on June 2nd annually thereafter.

C. This order shall expire as to each child on that child's 18th birthday.

XLV. No alimony is ordered for either party.

XV. The parties are ordered to take all reasonable steps to place the marital home on the market for sale.

A. The plaintiff shall select the realtor no later than March 30, 2014.

B. The parties are to cooperate with all reasonable recommendations of the realtor as to the marketing, staging, pricing and maintaining of the home for a maximum sale price.

C. Any cosmetic changes and minor repairs (under $500) recommended by the realtor or required by the buyer's lender shall be the sole responsibility of the defendant.

D. Any major repairs (in excess of $500) recommended by the realtor or required by the buyer's lender shall be shared equally by the parties.

E. The defendant may continue to have exclusive possession of the property pending the sale and closing, but any failure to cooperate fully with the realtor may result in the defendant being ordered to vacate said property.

F. The sale proceeds shall be divided equally after the payment of

1.  All normal closing costs and adjustments typically included in closings in Fairfield County;

2.  The payment of the first mortgage—originally a home equity line of credit;

3.  Real estate commissions;

4.  The payment of the real estate taxes for the Grand List of 2011 and 10/12ths of the taxes for the Grand List of 2012 as well as the sewer use fees for 2011 and 10/12ths of 2012 including all accrued interest and lien fees associated with those years;

5.  The plaintiff shall be solely liable for securing a release of the mortgage to his brother in the amount of $100,000;

6.  The defendant shall be solely liable for all bills related to the ownership and occupancy of the property from November 1, 2012 forward until the transfer is completed and she shall hold the plaintiff harmless and indemnify him therefrom;

7.  The court shall retain jurisdiction over the sale of the marital home until the transfer is completed and recorded.

XVI. The defendant shall transfer to the plaintiff by a domestic relations order (DRO) a portion of her State Employees Retirement System Tier II Hazardous Duty Pension equal to 34 percent of her pension benefit.

A. Said DRO shall be drafted by an attorney as selected by counsel for the parties and the cost of the preparation shall be shared equally by the parties.

B. The defendant shall insure her life for $275,000 naming the plaintiff as the irrevocable beneficiary so long as she can purchase said policy for a reasonable cost not to exceed $500 annually.

C. If the defendant cannot purchase $275,000 worth of insurance, she shall purchase as much as she can for a premium not to exceed $500 annually.

D. Said insurance shall remain in place for twenty years or until the plaintiff dies whichever is the first to occur.

E. The defendant shall provide proof of the policy to the plaintiff no later than June 1, 2014 and every June 1st thereafter.

F. The court shall maintain jurisdiction over this order until it is accepted for enforcement by the plan administrator.

XVII. Each party shall retain free and clear of any claim by the other any personal property now in their respective possession including all household furnishings, financial accounts, motor vehicles, etc.

XVIII. Each party shall be solely liable for their debts as listed on their respective financial affidavits not dealt with by the provisions of this judgment elsewhere and shall hold the other party harmless and shall indemnify that other party therefrom.

XIX. The parties shall pay the legal fees owed to Attorney Christopher Goulden as follows.

A. The plaintiff shall pay 20 percent of his fee.

B. The defendant shall pay 80 percent of his fee.

XX. The parties shall pay the fees owed to the GAL as follows.

A. The plaintiff shall pay the sum of $21,268.34.

B. The defendant shall pay the sum of $29,467.09.

C. Each party shall pay the total amount of their respective obligation to both the GAL and Attorney Goulden no later than April 30, 2018, but shall make a minimum monthly payment of at least $100 to the GAL and $75 per month to Attorney Goulden beginning April 2014.

1. In the event the total obligation is not paid in full as of April 30, 2018, interest shall accrue in a compound fashion of the full amount—not the actual remaining balance—as of the date of this judgment at the rate of 10 percent per annum;

2.  Said interest shall continue to so accrue until the entire original balance plus any accrued interest is paid in full;

3.  Nothing in this order shall be interpreted as limiting the right of the GAL and/or Attorney Goulden to take other legal action to enforce this order;

4.  This obligation is a support obligation under the United States Bankruptcy Code having originated in legal fees to protect the rights and best interests of the minor children in a dissolution of marriage proceeding.

XXI. Plaintiff's motion for contempt # 297.00 is denied.

XXII. Plaintiff's motion for contempt # 309.00 is denied.

XXIII. Plaintiff's motions for contempt # 306 and # 307 are granted and the defendant is held in contempt of the court's order restricting third parties from attending parental access sessions.   No further penalty is imposed;  and

XXIV. The court declines to rule on motions # 298.00, # 299.00, # 301.00 and # 308.00 as either no evidence was presented on said motions or they have become moot.

Adelman, J.

FOOTNOTES

FN1. The worker testified, but the DCF file was not allowed into evidence due to the defendant's right to confidentiality which she declined to waive.   The record was originally admitted over the defendant's objection as to hearsay in the report, no objection was raised as to the statutory confidentiality of the document.   After a short recess, during which the court reviewed the statute in question, General Statutes § 17a–28, the court reversed its ruling, sua sponte, and the report was marked for identification only.   Only the witness testimony was considered by the court..  FN1. The worker testified, but the DCF file was not allowed into evidence due to the defendant's right to confidentiality which she declined to waive.   The record was originally admitted over the defendant's objection as to hearsay in the report, no objection was raised as to the statutory confidentiality of the document.   After a short recess, during which the court reviewed the statute in question, General Statutes § 17a–28, the court reversed its ruling, sua sponte, and the report was marked for identification only.   Only the witness testimony was considered by the court.

FN2. GAF stands for Global Assessment of Functioning Scale.   It is a 100–point tool rating overall psychological, social and occupational functioning of people over eighteen (18) years of age.   It excludes physical and environmental impairment.   The GAF is included in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (DSM–IV–TR) in the section on multiaxial assessments.   This definition is from a web site offered by the Washington State Mental Health Division.   See https:// deptswashington.edu/washinst/Resources/CGAS/GAFÏndex.htm..  FN2. GAF stands for Global Assessment of Functioning Scale.   It is a 100–point tool rating overall psychological, social and occupational functioning of people over eighteen (18) years of age.   It excludes physical and environmental impairment.   The GAF is included in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (DSM–IV–TR) in the section on multiaxial assessments.   This definition is from a web site offered by the Washington State Mental Health Division.   See https:// deptswashington.edu/washinst/Resources/CGAS/GAFÏndex.htm.

FN3. Supra, n.2..  FN3. Supra, n.2.

FN4. This is not to be construed as the court ignoring her claims of emotional abuse by the plaintiff.   It is likely that much of what she testified to did occur, but there are two things to note.   First, her reaction to the abuse put herself and her children at great risk and blaming another for the cause missed that most significant point.   Second, much of the abuse she testified about occurred after the filing of the complaint and after her hospitalization.   While that, of course, does not excuse the plaintiff's behavior, it does take it out of the equation as a cause of the marital failure..  FN4. This is not to be construed as the court ignoring her claims of emotional abuse by the plaintiff.   It is likely that much of what she testified to did occur, but there are two things to note.   First, her reaction to the abuse put herself and her children at great risk and blaming another for the cause missed that most significant point.   Second, much of the abuse she testified about occurred after the filing of the complaint and after her hospitalization.   While that, of course, does not excuse the plaintiff's behavior, it does take it out of the equation as a cause of the marital failure.

FN5. The work done by the GAL in this case was excellent.   It is clear from the record that he was attacked repeatedly by the defendant with two separate grievances and charges of horrendous and totally unprofessional behavior on his part.   At one point, the court actually authorized the GAL to hire legal counsel.   Despite those attacks, the GAL presented the court with a very balanced and thorough history of the case.   It was only through the efforts of the GAL, for example, that vital information from the St. Vincent's records were brought to the court's attention.   The GAL testified in a very straightforward manner even under strenuous cross examination by the attorney for the defendant.   His responses were to the point, objective and there was no effort on his part to parse the questions to his own view;  he answered every question put forth.   His testimony was credible and persuasive..  FN5. The work done by the GAL in this case was excellent.   It is clear from the record that he was attacked repeatedly by the defendant with two separate grievances and charges of horrendous and totally unprofessional behavior on his part.   At one point, the court actually authorized the GAL to hire legal counsel.   Despite those attacks, the GAL presented the court with a very balanced and thorough history of the case.   It was only through the efforts of the GAL, for example, that vital information from the St. Vincent's records were brought to the court's attention.   The GAL testified in a very straightforward manner even under strenuous cross examination by the attorney for the defendant.   His responses were to the point, objective and there was no effort on his part to parse the questions to his own view;  he answered every question put forth.   His testimony was credible and persuasive.

FN6. The ultimate failure of the co-parenting counseling was the fault of the plaintiff who stormed out of the meeting in great anger.   He clearly was not willing to participate once the work began..  FN6. The ultimate failure of the co-parenting counseling was the fault of the plaintiff who stormed out of the meeting in great anger.   He clearly was not willing to participate once the work began.

FN7. The GAL testified that the minor children are currently “therapy phobic.”   They blame the defendant for undermining their therapy with Debra Datz and state that they are unwilling to engage in more therapy at this time..  FN7. The GAL testified that the minor children are currently “therapy phobic.”   They blame the defendant for undermining their therapy with Debra Datz and state that they are unwilling to engage in more therapy at this time.

FN8. A great portion of the defendant's testimony about events prior to January 2012 was that she just did not recall or remember.   While some of that can be attributed to her lack of knowledge regarding the family finances, it is also suggestive that perhaps her alcohol consumption played a role.   Her testimony about events after she was sober was significantly sharper and she did not claim lack of recall nearly as often..  FN8. A great portion of the defendant's testimony about events prior to January 2012 was that she just did not recall or remember.   While some of that can be attributed to her lack of knowledge regarding the family finances, it is also suggestive that perhaps her alcohol consumption played a role.   Her testimony about events after she was sober was significantly sharper and she did not claim lack of recall nearly as often.

FN9. It was the defendant's testimony that he did not even tell her about signing the mortgage and she did not learn of its existence until discovery for the dissolution action.   He did testify that his brother wanted a mortgage all along but he could never get the defendant to actually discuss it with him or sign any documents.   No draft documents from 2004 or 2005 were produced to support this claim that she would not cooperate..  FN9. It was the defendant's testimony that he did not even tell her about signing the mortgage and she did not learn of its existence until discovery for the dissolution action.   He did testify that his brother wanted a mortgage all along but he could never get the defendant to actually discuss it with him or sign any documents.   No draft documents from 2004 or 2005 were produced to support this claim that she would not cooperate.

FN10. The plaintiff merely signed his name on the title, but the rest of the required information was blank and he offered no cover letter or other evidence that the title was actually given to opposing counsel..  FN10. The plaintiff merely signed his name on the title, but the rest of the required information was blank and he offered no cover letter or other evidence that the title was actually given to opposing counsel.

FN11. The guidelines are official regulations established by the Commission for Child Support Guidelines pursuant to General Statutes § 46b–215a and approved by the legislative regulation review committee pursuant to General Statutes § 46b–215c.   See Regs., Conn. State Agencies § 46b–215a–1 et seq..  FN11. The guidelines are official regulations established by the Commission for Child Support Guidelines pursuant to General Statutes § 46b–215a and approved by the legislative regulation review committee pursuant to General Statutes § 46b–215c.   See Regs., Conn. State Agencies § 46b–215a–1 et seq.

FN12. The defendant is presently vested and eligible to retire.   Plaintiff's Exhibit # 17 offered values for the defendant's pension if she retired at 55, 60, or 65.   The present value of the pension decreases as the benefit is deferred to a later date.   However, since the valuation presented for the plaintiff's pension is at age 56, the court will use the defendant's valuation for her retirement at 55 which is the closest in time to the that of the defendant.   The court could use the present value since she is eligible to retire immediately, but that would not be an equitable comparison as she testified she was not planning to retire now..  FN12. The defendant is presently vested and eligible to retire.   Plaintiff's Exhibit # 17 offered values for the defendant's pension if she retired at 55, 60, or 65.   The present value of the pension decreases as the benefit is deferred to a later date.   However, since the valuation presented for the plaintiff's pension is at age 56, the court will use the defendant's valuation for her retirement at 55 which is the closest in time to the that of the defendant.   The court could use the present value since she is eligible to retire immediately, but that would not be an equitable comparison as she testified she was not planning to retire now.

FN13. The actual total bill presented in court was for $52,135.42, but it included an estimated full trial day on March 4th.   The trial actually ended with the morning session so the court deducted $1,400 representing four hours at the GAL's $350 per hour rate.   That reduced the bill to $50,735.42.   The GAL had received payment of $8,198.75 and that amount was added back to the total to rule on the full amount of $58,934.17..  FN13. The actual total bill presented in court was for $52,135.42, but it included an estimated full trial day on March 4th.   The trial actually ended with the morning session so the court deducted $1,400 representing four hours at the GAL's $350 per hour rate.   That reduced the bill to $50,735.42.   The GAL had received payment of $8,198.75 and that amount was added back to the total to rule on the full amount of $58,934.17.

Adelman, Gerard I., J.