Herbert Erdman v. Donna Erdman (2014)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR MODIFICATION, # 162 AND TO RELOCATE MINOR CHILDREN

A hearing on the postjudgment motion of the defendant, Donna Erdman, hereinafter referred to as “the defendant,” to modify custody and permit relocation of her two minor children and her from Connecticut to North Carolina was heard by the court on March 11, 2014.   The plaintiff, Herbert Erdman, hereinafter referred to as “the plaintiff,” opposed the motion.   The defendant was represented at the hearing by Attorney Joseph R. Sastre, and the plaintiff was self-represented.   The children's guardian ad litem, Attorney Sue A. Cousineau, testified at the hearing.   The court also reviewed the Comprehensive Evaluation Report prepared from Family Services Counselor, Pamela Kelley.

The undersigned, having carefully reviewed the testimony, documentary evidence and relevant statutory criteria, finds the following facts and issues the following orders:

The parties' marriage was dissolved and judgment entered thereto in July 2012.   At that time, the parties agreed on joint legal custody of their two minor children, Austin Erdman, date of birth, December 15, 2001;  and Steven Erdman, date of birth, February 8, 2004, with primary residence to be with the defendant.   The parties also agreed on a visitation schedule within which the plaintiff would parent the children alternating weekends from Friday afternoon through Sunday afternoon, as well as two mid-week days.   The parties also entered into a holiday and vacation schedule.

The defendant is employed full-time at Marshall's in Old Saybrook, Connecticut.   She takes home approximately $200 per week.   She resides in the family home in Westbrook, Connecticut, with her two children and her boyfriend, Bruce Frost.   The marital residence is in foreclosure and the mortgage on the property has not been paid for three years.

The defendant's father has informed his daughter that he will purchase a home for her in North Carolina, described as a doublewide, 1,800–1,900–square–foot residence with three bedrooms, two and a half bathrooms, a detached two-car garage, and a swimming pool, located on one acre of predominantly rural land, about 45 minutes from his home.   Both the defendant and Mr. Frost testified that the latter will accompany the defendant and the children to North Carolina.   The defendant and her supervisor testified that she will be able to transfer her employment with Marshall's to North Carolina.

Both the guardian ad litem, Attorney Cousineau, and the family services counselor, Ms. Kelley, oppose the move.   Attorney Cousineau testified that, due to both parties' limited financial standing, it is probable that the children would not return to Connecticut to see their father, nor would he go to North Carolina to see them, and, for all intents and purposes, the new family unit would consist of the defendant, Mr. Frost and the two minor children.

The plaintiff, as indicated above, opposes the move.   He did not testify at the subject hearing.

The Defendant's Relocation Request

In rendering this decision, the court has carefully considered all of the evidence, as well as the statutory criteria contained in C.G.S. Section 46b–56d, and the case law that has developed regarding these matters.

When the custodial parent desires to relocate and such relocation would have a significant impact on an existing parenting plan and/or custody agreement, the party wishing to relocate bears the burden of showing that the relocation is for a legitimate purpose, the proposed location is reasonable in light of that purpose, and the relocation is in the best interests of the child.  C.G.S. 46b–56d(a).   Further, the court should consider, but is not limited to, the following factors:  each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent, the degree to which the custodial parents and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements.  C.G.S. Sec. 46b–56d(b).

“It 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.”  Schult v. Schult, 241 Conn. 767, 777, 699 A.2d 134 (1997);  Knock v. Knock, 224 Conn. 776, 789, 621 A.2d 267 (1993);  Yontef v. Yontef, 185 Conn. 275, 282, 440 A.2d 899 (1981).   Moreover, “[the Supreme Court] has consistently held in matters involving child custody, and, by implication, visitation rights, that while the rights, wishes and desires of the parents must be considered, it is nevertheless the ultimate welfare of the child which must control the decision of the court ․” Ridgeway v. Ridgeway, 180 Conn. 533, 541, 429 A.2d 801 (1980);  see also Gallo v. Gallo, 184 Conn. 36, 43, 440 A.2d 782 (1981) (in matters regarding visitation orders, “the court considers the rights and wishes of the parents ․ but ․ must ultimately be controlled by the welfare of the particular child).”  Ireland v. Ireland, 246 Conn. 413, 419–20, 717 A.2d 676 (1998).

“We recognize the difficult issues that relocation cases present.   The interests of the custodial parent who wishes to begin a new life in a new location are in conflict with those of the non-custodial parent who may have a strong desire to maintain regular contact with the child.   At the heart of the dispute is the child, whose best interests must always be the court's paramount concern.   Those interests do not necessarily coincide, however, with those of one or both parents.”  Ireland v. Ireland, supra, 246 Conn. at 421.

Relocation For A Legitimate Purpose

Regarding the purpose for the proposed relocation, the defendant testified she can no longer afford to live in Connecticut.   Moreover, the fact that her father, the minor children's grandfather, would purchase the house for her in North Carolina would further alleviate some of her economic concerns because she would be living mortgage-free.   She also testified that she believes the cost of living is significantly lower in North Carolina than in Connecticut.

Reasonableness of Proposed Location

In support of the reasonableness of the proposed location in light of the stated purpose, the defendant has a well-paying steady job, a new, comparatively large home awaiting her and the support of her father, the minor children's grandfather, all of which would provide stability and the physical and emotional space for her minor children to nurture their growth.

“The Best Interests of The Children”

While he has admittedly limited financial and residential means, the plaintiff shares a good, positive relationship with his sons.   To some degree, the plaintiff is the more highly functioning parent, and it would be a significant detriment to his minor sons if he were deprived of his day-to-day involvement in their lives.

Clearly, given the relative financial instability of the plaintiff, who collects social security and has no other reasonable source of income, as well as the defendant, to some degree, neither party would be able to afford to have the children return to Connecticut to see their father, nor would the plaintiff be able to afford to travel to North Carolina.   In effect, this economic conundrum would effectively end the minor children's relationship with their father.

Each Parent's Reason for Seeking or Opposing Relocation

The court finds that the defendant's reasons for seeking the relocation are as stated aforesaid, and hereby incorporates its finding above regarding her reasoning on this issue.

The plaintiff's opposition is for the reasons stated above, and are also incorporated herein.

Impact of Relocation on the Quantity and Quality of the Children's Future Contact with the Non–Relocating Parent

As indicated aforesaid and above, the relocation of the minor children from Connecticut to North Carolina would have a significantly negative impact on their relationship with their father.   He is financially unable to travel to North Carolina for visitations, and the defendant is not, and will not, be in the financial position to pay for the children to return to Connecticut to visit with their father.

Requirement of a “Substantial or Material Change in Circumstances”

Notwithstanding the legal and factual analysis above, “[Our Supreme Court] has limited the broad discretion given the trial court to modify custody orders under General Statutes 46b–56 by requiring that modification of a custody award (or agreement) be based upon ․ a material change of circumstances which alters the court's finding of the best interests of the child(ren) ․” Regan v. Regan (Conn.Super. Mar. 8, 2012) (Adelman, J.), quoting Kelly v. Kelly, 54 Conn.App. 50, 55, 732 A.2d 808 (1999).”

Moreover, it has been held that “before a trial court may modify a custody order, it must find that there has been a material change in circumstance since the prior order of the court, but the ultimate test is the best interests of the child(ren).”  Brubeck v. Burns–Brubeck, 42 Conn.App. 583, 585, 680 A.2d 327 (1996), quoting Stewart v. Stewart, 177 Conn. 401, 407–08, 418 A.2d 62 (1979).

The sole change in the defendant's circumstance has been her father's offer to purchase a home for her in North Carolina.   The defendant continues to work full-time in Connecticut at a job she has held for some 13 years.   By all accounts, she is an excellent employee, and, while there is no economic crystal ball, her job prospects remain good here in Connecticut.

It may be axiomatic to repeat in these still somewhat chilly economic times, but it remains clear that “our society is an increasingly mobile one.   Largely ‘[b]ecause of the instability and unpredictability of the employment market ․ repeated, separate moves by each parent are coming to represent the norm.’   J. Wallerstein & T. Tanke [‘To Move or Not to Move:  Psychological and Legal Considerations in the Relocation of Children Following Divorce,’ “ 30 Fam.L.Q. 305, 310 (1996) ].   Yet, that fact alone does not diminish the requirement that the moving party prove a “substantial change in circumstances (since) the entry of the (last) court order.”  Brubeck, id.

As indicated above, the undersigned finds that the defendant has not proven there has been such a change that would necessitate the granting of her motion.   Moreover, even if there were such a change, for the reasons stated above, the undersigned finds that relocation would not be in the minor children's best interests.

For the foregoing reasons, the defendant's motion to modify and relocate her minor children, # 162, is denied.

GOULD, J.

Gould, Mark T., J.