Opinion
No. FA03-0348982 S
April 29, 2005
MEMORANDUM OF DECISION
This matter was tried before the Regional Family Trial Docket, on a referral from the Danbury Judicial District, on April 7th, 8th and 11th, 2005. The Plaintiff, Defendant and numerous witnesses testified and numerous exhibits were introduced. The court has considered all of the credible evidence presented to it and carefully considered the respective criteria for orders of custody, visitation and access, child support, health insurance, payment of the child's medical expenses, alimony, property settlement, division of debt and award of counsel fees. The court makes the following findings of facts and orders:
The parties were married on June 27, 1998 in City Island, NY. The court finds that it has jurisdiction over the marriage. One of the parties has lived in the State of Connecticut for more than one year prior to bringing this action. The following minor child was adopted by the parties since the date of the marriage:
Anthony John, date of birth, February 23, 1999
No other minor children have been born to the Wife since the date of the marriage. The parties are not receiving state assistance. The court finds that the marriage between the parties has broken down irretrievably and there is no reasonable prospect of reconciliation.
The Wife is 42 years old and has been diagnosed with fibromyalgia, Lyme disease, rheumatoid arthritis, early menopause, migraine headaches and PTSD (allegedly as a result of domestic violence during the marriage). She is currently receiving monthly social security disability benefits in the amount of $846.00 for herself and $425-430 for her son. She had been prescribed Zithromax, Plaquenil and other prescription and nonprescription drugs as treatment for her illnesses. Her Lyme disease physician is out of her health insurance network and is paid out-of-pocket.
Ms. DeMarco attended secretarial school, receiving a BA from the College of New Rochelle majoring in education and psychology and has a Master's degree in Early Childhood Education. She was employed as a nursery school teacher for 18 years. She is a member of Alcoholics Anonymous and has been sober for over 13 years.
Ms. DeMarco is presently spending several nights a week with her parents in Brookfield, CT. She takes most of her meals with her parents and the couple's child. Ms. DeMarco returns to the family home daily to care for the couple's pets and has begun to spend several nights a week at this home.
Mr. DeMarco is a 40-year-old high school graduate with 6 years of service in the US Navy. He has been employed as a plant manager by Greenwich Hospital for 14 years and earns approximately $60,000 per year.
Mr. DeMarco is currently living with his mother and step-father, Mr. and Mrs. Sarno, in Mamaroneck, NY. Mr. DeMarco and the couple's son each have their own room in the Sarno residence.
Shortly before the couple married, the wife discovered she was infertile and would never have children. Mr. DeMarco was supportive of adoption and the couple adopted a 4-month old child from Bolivia in the summer of 1999. Ms. DeMarco's family loaned the couple $20,000+ for the cost of the adoption, including agency fees and airfare to Bolivia. The child suffers from sensory integration dysfunction, an abnormal reaction to sound, touch or light.
The couple purchased a home in Bethel, CT in 2001 (Exhibit Q, S) for $211,000.00 The down payment was made with a loan of $25,000 from the Wife's father, $20,000+ from wedding gifts and several thousand dollars from the husband's premarital savings. The parties agreed that the current value of the home is $330,000.00. The balance of the mortgage is $160,000, leaving equity in the approximate amount of $170,000.00.
Mr. DeMarco's 2002 Subaru Outback, with equity of $17,000, was also paid for in full by gifts from the husband's mother (Exhibit 19, 20) and a loan from her father (Exhibit K). Ms. DeMarco's 2003 Nissan Murano was purchased with a loan from the wife's father and has equity of $4,500.00.
The mortgage on the family home went into foreclosure during the pendente lite period. On December 8, 2003 (#120,) Mr. DeMarco was ordered by Judge Shay to pay the Wife $4,000 within one week, the balance of his bankruptcy retainer of $3,000 less attorneys fees. The remaining balance of the $10,219.00 due the mortgage company would be dealt with at the final dissolution. Mr. DeMarco paid the initial $4,000 but failed to pay the balance of $6,219.00 plus interest.
The DeMarco marriage was fraught with domestic violence from initiation. Mr. DeMarco testified that he was physically violent to his wife on a number of occasions including holding a knife to her throat, threatening her with a hammer, punching her in the face and choking her. These admissions were also made to the court-appointed psychological evaluator, Robert S. Colen, Ph.D. (Exhibits 23 24) and the Family Relations Counselor, Lisa A. Leogrande (Exhibit 22).
Additionally, during a parent/teacher conference in March 2003, Mr. DeMarco admitted to his son's nursery school director, Ms. Sims, that he wanted to kill his wife. This admission led to his hospitalization and subsequent treatment.
Mr. DeMarco's therapist, Dr. Pamela Markham, Psy. D., testified that Mr. DeMarco had complied with treatment and made good progress. However, it appeared she did not have the full history of Mr. DeMarco's anger management problems and had not observed him with his son.
The court has serious concerns regarding Mr. DeMarco's ability to control his explosive temper. He still clearly blames his wife for the domestic violence claiming she initiated the violence, would not leave him alone verbally or otherwise caused him to snap. He told Dr. Colen "[w]hile he would be physical or destructive (I'm not proud of it) she would harass him, `get in my face,' play the victim, openly lie or would occasionally hit him." (Exhibit 23, page 6, para. 2) These statements did not indicate to the court he was taking responsibility for his own behavior but continued to blame others for his anger management problems. Even if the husband's allegations that his wife triggered his anger are believed no evidence was presented to the court that either party had taken steps to rectify this problem.
On one occasion during the marriage the father took the child to the bathroom to wash his hands and the child returned with an injured shoulder (Exhibit 22, page 5, para. 2). The parents agreed that the child's arm appeared to be dislocated but popped back into place without medical intervention.
Additionally, Mr. DeMarco's physical violence was not exclusive to his wife but included two on-the-job altercations, a beating of the family dog for getting into garbage and an altercation that ultimately injured his elderly father-in-law. Finally, as previously noted, he admitted to his son's nursery school director that he wanted to kill his wife.
Mr. and Ms. DeMarco both admitted that they had been unable to communicate since their separation — even about their child. Telephone calls resulted in screaming, yelling and hang-ups. At the time of trial, Ms. DeMarco did not have a computer or access to the internet at home.
Exhibit 24, Dr. Colen's updated psychological report states on page 1 "[c]learly Mrs. DeMarco has been traumatized by these acts and shows evidence of a posttraumatic stress disorder."
The court can envision no way for this couple to manage joint custody of their child at the present time. The parties are unable to communicate in any reasonable fashion. Mr. DeMarco continues to blame his anger management problems on his wife and the wife suffers from PTSD as a result of the domestic violence she suffered. Even with the assistance of a Parent-Coach or other therapeutic intervention, the likelihood of successful joint custody at the present time is negligible.
The court finds that the fault for the breakdown of the marriage is the husband's domestic violence against the wife and his anger management problems.
The court is not following the joint custody recommendation made by the Family Relations Counselor and the Guardian Ad Litem. The court heard the testimony and observed the parties at trial; it is clear to the court that joint custody has no reasonable possibility of success at the present time. The court is specifically precluding an order/agreement of joint custody at some point in the future. However, at the present time, any attempt at joint custody by these parents would result in failure and would not be in the best interest of the minor child.
While a court may take into consideration the opinion of a family relations counselor, Yontef v. Yontef, 185 Conn. 275, 281, 440 A.2d 899 (1981), the capacity in which Lisa Leogrande functioned, that of the court-appointed psychological evaluator, Dr. Colen's role, and that of the Guardian Ad Litem, Janik v. Janik, 61 Conn.App. 181, 763 A.2d 65 (2000), cert. denied, 255 Conn. 940, 768 A.2d 949 (2001), the court is not bound by the testimony of any witness as to individual best interest factors or to their opinion as to the ultimate issue presented — whether the joint custody recommendation is in the best interest of this child.
In Ford v. Ford, 68 Conn.App. 173, 789 A.2d 1104, cert. denied, 260 Conn. 910, 796 A.2d 556 (2002), for example, the Appellate Court expressly upheld the trial court's decision rejecting a recommendation against relocation by the Guardian Ad Litem and court-appointed psychologist. "[A] trial court is not bound to accept the expert opinion of the family relations officer . . . [A] trial court is free to rely on whatever part of the expert's opinion the court finds probative and helpful." Ford v. Ford, supra, 68 Conn.App. 190, citing, Yontef v. Yontef, supra, 185 Conn. 281. "It is in the sole province of the trier of fact to evaluate expert testimony, to assess its credibility, and to assign it a proper weight." State v. Jarzbek, 204 Conn. 683, 706, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061 (1988). "It is the quintessential function of the finder of fact to reject or accept evidence and believe or disbelieve any expert testimony." (Citation omitted.) "The trier may accept or reject, in whole or in part, the testimony of an expert." (Citation omitted.) Tartaglino v. Dept. of Correction, 55 Conn.App. 190, 195, 737 A.2d 993, cert. denied, 251 Conn. 929, 742 A.2d 364 (1999). Keans v. Bocciarelli, 35 Conn.App. 231, 241-42, 645 A.2d 1029, cert. denied, 231 Conn. 934, 650 A.2d 122 (1994). "In weighing the testimony of an expert, the trier of fact may accept part of the testimony of an expert without being bound by the opinion of the expert." Johnson v. Healy, 183 Conn. 514, 517, 440 A.2d 765 (1981), quoting United Aircraft Corporation v. International Assn. of Machinists, 169 Conn. 473, 490, 363 A.2d 1068 (1975), cert. denied, 425 U.S. 973 (1976).
ORDERS
After considering all of the statutory criteria set forth in General Statutes § 46b-84 as to support of a minor child, § 46b-215a-1 et. seq., Regs. Conn. State Agencies, as to child support, § 46b-62 as to counsel fees, § 46b-66a as to conveyance of real property, § 46b-81 as to assignment of property and transfer of title; § 46b-82 as to the award of alimony, § 46b-84 as to medical insurance for minor child, together with applicable case law and the evidence presented here, the court hereby enters the following orders:
1. DISSOLUTION OF MARRIAGE:
A decree dissolving the marriage, on the grounds of irretrievable breakdown, shall enter on April 29, 2005.
2. CUSTODY AND PARENTING PLAN:
Sole custody of the parties' minor child, Anthony John DeMarco (born February 23, 1999), shall be awarded to the Defendant Catherine Troiano DeMarco, subject to the Plaintiff Anthony DeMarco's access schedule and e-mail communication by the mother to the father as more fully set forth below. All transportation for visitation shall be provided by the Father's mother and/or step-father, per prior agreement. It is the court's intention to prevent face to face meetings between Plaintiff and Defendant during the exchange of the child until further court order. All visitation shall take place under the supervision of the Plaintiff's mother or stepfather. The court does not intend to prevent father and son from having periods of up to 1 hour alone or to require that the Sarnos remain in the same room as father and son. However, given the father's history of anger management difficulties, it is critical that Mr. or Mrs. Sarno always be available to relieve Mr. DeMarco if parenting becomes too stressful for him.
If mother cancels a visitation for any reason, visitation shall be made up on an hour for hour basis within 4 weeks. Mother shall not cancel visitation for any reason other than illness or poor driving conditions. The mother shall submit a physician's note to the father by U.S. Mail documenting any illness causing cancellation of visitation. Father shall have the independent right to confirm the illness with the child's physician.
The Plaintiff, Anthony DeMarco, shall have visitation with the minor child as follows:
Weekend Visitation: Until school ends in June 2005 Father shall have supervised visitation at his mother's home the first, second and forth weekend of each month from Sunday at 11:30 a.m. until 6:30 pm. Father shall feed the child dinner prior to the child being returned to the mother. Commencing with the end of school in June 2005, Father's visitation shall commence in June and July on Saturday at 5:00 p.m. (if father's work schedule changes) and terminate on Sunday at 6:30 p.m. on the first, second and forth weekend of each month. In August 2005 and thereafter, weekend visitation shall commence at 5:00 p.m. Saturday and end with drop-off at school on Monday morning. If there is no school, drop-off shall be at 6:30 p.m. Monday evening with mother.
Weekday Visitation: During the school year: one dinner per week on Tuesday. Visitation to be from pick-up at school to return to mother at 6:30 p.m. During the summer, Tuesday visitation shall be from 10:30 am.-6:30 pm.
Summer Vacation 2006: Commencing the summer of 2006 and yearly thereafter, father shall be entitled to take the child for a 7-day, 6-night vacation provided he is supervised by Mr. and/or Mrs. Sarno. Father shall notify mother via e-mail by March 1st of the date, location, itinerary, hotel names and telephone numbers, flight numbers utilized during his vacation.
Holidays: Christmas: The parties shall alternate the Christmas holiday such that one parent shall have the child from noon Christmas Eve until Christmas Day at 10:00 a.m., when the child shall be delivered to the other parent's residence. The child shall then spend from 10:00 a.m. through 7:00 p.m. on Christmas Day with the other parent. Father shall have the child Christmas Eve and Mother shall have the child Christmas Day in 2005 and shall alternate yearly thereafter.
Thanksgiving: The child shall spend the Thanksgiving holiday with mother each year.
Easter: The holiday shall be alternated yearly with mother having the child for Easter 2006. The Easter holiday visitation shall run from 5:00 p.m. on Saturday until 6:30 p.m. Easter Sunday.
Mother's Day/Father's Day: The child shall spend Mother's Day weekend with mother; he shall spend Father's Day weekend, from 5:00 p.m. Saturday until 6:30 p.m. Sunday, with father.
Memorial Day: The holiday shall be alternated yearly with father having the child for Memorial Day 2005. The Memorial Day visitation shall run from 5:00 p.m. on Saturday until.6:30 p.m. Monday.
July 4th: The holiday shall be alternated yearly with mother having the child for 2005. The July 4th visitation shall run from 5:00 p.m. on Saturday until 6:30 p.m. Monday.
Labor Day: The holiday shall be alternated yearly with father having the child for Labor Day 2005. The Labor Day visitation shall run from 5:00 p.m. on Saturday until 6:30 p.m. Monday
Holiday and vacation visitation shall take priority over the normal visitation schedule and shall not require any make-up visitation.
MISCELLANEOUS:
(a) The parties shall use the OurFamilyWizard.com web site to communicate information regarding the minor child. Mother shall obtain a computer and internet access within 30 days of the date of this decision. Mother shall send Father an e-mail through the web site every Monday and Father shall respond by Wednesday. The parents are both ordered to use the web site for all other non-emergency communications and scheduling of the child's activities and visitation. Mother's sole custody is specifically conditioned on her communication and consultation with the father via e-mail on all matters involving the child's health, education and welfare. Mother's communication shall be made in advance of any decisions regarding the minor child.
(b) The parents shall confer via e-mail concerning major education issues such as repeating or skipping a grade, assessing for special education programs or gifted programs, but the Mother shall make the final decision.
(c) The parents shall both be listed as person(s) to be notified in case of an emergency. Their names, telephone numbers and addresses shall be listed on all school, caretaker, healthcare provider and activity records and updated within 48 hours of any change of information.
(d) The parent who has responsibility for the child on a particular day may participate in activities such as field trips or athletic activities, but the other parent may attend if the general public is invited. Neither parent shall interfere or create difficulties if both are attending an event involving the child.
(e) Mother shall inform Father before planning enrichment activities, such as music lessons or sporting activities, In the event sports activities fall on Father's parenting time, he shall be responsible to see that the child is delivered to the practice/game on time.
(f) Mother shall consult with Father via e-mail about summer sleep-away camp or day camps by March 1st of each year. Mother's decision shall be final but she shall seek and encourage the input of Father on the selection of the camp or other summer activity.
(g) Medical Care
The Father and Mother shall both have the right to be present with the child for medical check-ups and treatment. Mother shall notify father via e-mail of all regularly scheduled well care visits within 48 hours of making the appointment. In case of an emergency, either parent shall take the child for treatment. The other parent shall be notified as soon as practicable of the incident.
Information about the child's medication shall be exchanged by e-mail or other means if an e-mail will not reach the other parent in a timely manner.
In case of an emergency, the care-providing parent shall contact the other parent. Mother and Father shall both be entitled to complete and full information from any physician, therapist, psychologist, psychiatrist or similar type professional attending the children for any reason and from any teacher or school giving instruction to the children.
(h) The child shall continue to be known by the Father's surname and the terms "mommy/mom" and "daddy/dad" will continue to be used to refer to the parties.
(i) Mental Health Care
Mother shall select the mental health professional(s) for the child and the duration of the treatment if she deems it necessary. Both parents shall be able to speak with the mental health professional(s) regarding the children's progress or to address ongoing concerns.
(j) In matters concerning parenting, each party shall endeavor to further the best interests of the minor child and facilitate close ties between the minor child and the other party. Neither party shall arbitrarily hinder nor interfere with the relationship of the minor child with the other party, and each party shall contact the other via e-mail to discuss parenting arrangements with as much advance written notice as is reasonably practicable.
(k) Each parent shall exert every reasonable effort to maintain free access and unhampered contact between the minor child and the other parent, subject to the terms of this order. Neither parent shall do anything which may estrange the minor child from the other parent or which may hamper the free and natural development of the minor child's love and respect for the other parent.
(l) Each party shall be entitled to reasonable telephone contact (once per day, during reasonable hours of the day and evening, but in no event later than 7:00 p.m.) with the minor child while said child is in the care of the other, including holidays and vacations, at the expense of the contacting party. The minor child shall be entitled to unfettered telephone contact initiated by the minor child to each parent.
(m) Each party shall keep the other reasonably informed as to the whereabouts of the minor child at all times when he is with the plaintiff or the defendant, as the case may be. The parties shall provide each other with an advance itinerary listing the dates, addresses and telephone numbers of each place he/she intends to take the minor child at any time the minor child does not sleep at his/her residence for two or more consecutive nights during any period.
(n) Each party shall keep the other informed of his/her place of residence and telephone number, cell phone number and work telephone number, and shall promptly notify the other within 24 hours of any changes during the minority of their child.
(o) Each party shall have free and unhampered access to all records and information concerning the welfare of the minor child including, without limitation, medical, psychological, and dental, and to be furnished with copies of all reports given by such people directly from the provider/institution. Further, each party shall be entitled to all information from any teacher or school giving instruction to the minor child, and to be furnished with copies of all reports and documents (which shall also include notices of parent meetings, school performances, extra-curricular activities and the like) given by such teacher(s) or school(s) directly from such teacher(s) or school(s). Each party shall be responsible for securing such medical, educational or other information for himself/herself directly from such third parties and neither party shall restrict or interfere with the other party's right to receive such information.
(p) The parties shall keep each other advised of upcoming events and activities in the academic and social life of the minor child so that each may attend and participate in those events and activities. The parties shall also share equally any tickets distributed or otherwise available for school and extra-curricular activities/events, if same are limited in number. Each party shall bear the cost, if any, of his/her share of such tickets.
(q) Neither parent shall disparage the other parent in the presence of the minor child.
3. CHILD SUPPORT:
Child Support and unreimbursed medical expenses shall be paid pursuant to the Connecticut Child Support Guidelines. The Father shall pay the Mother the sum of $172.00 per week as child support and shall contribute the Guideline percentage (60% Father, 40% Mother) of all work-related daycare expenses and unreimbursed medical expenses after the first $100.00 per year. Child support shall be secured by immediate wage withholding.
4. ALIMONY:
The Plaintiff shall pay the Defendant alimony in the amount of $200.00 per week for a period of 8 years from the date of dissolution. Alimony shall terminate on the first to occur of 8 years from the date of dissolution, the death of either party, the full-time employment of the wife with gross earnings in excess of $25,000 per year, the remarriage of the wife or her cohabitation pursuant to the statute. Alimony shall be secured by immediate wage withholding.
5. THERAPY:
The Husband and Wife shall continue in therapy with their current therapists for as long as their respective therapist deems necessary.
6. REAL ESTATE:
The Husband shall Quit Claim all his right, title and interest in and to the marital residence located at 10 Blue Spruce Court, Bethel, Connecticut. The Wife shall make a good faith effort to refinance said residence within five (5) years of the judgment and remove the Husband's name from the mortgage and promissory note. The Wife shall execute a Mortgage Deed and Note to the Husband in the amount of Thirty-nine Thousand ($39,000.00) Dollars with an interest rate of four (4%) percent per annum payable upon the first to occur of any of the following: the wife's remarriage, sale of the residence, no longer using said property as the primary residence for the wife and child, the child's graduation from high school or reaching the age of 18.
7. MEDICAL INSURANCE — CHILD:
The husband shall maintain, at his sole expense, the present medical/dental insurance for the child, which is provided to him through his employment. If said insurance is no longer available to the husband through his employment at a reasonable cost, the parties shall equally share the cost of obtaining such medical and dental insurance.
The provisions of 46b-84(e) shall apply.
8. LIFE INSURANCE:
The parents shall both shall maintain life insurance on their lives, naming the child as irrevocable beneficiary, in the amount of $100,000 or more until he is no longer a full-time student or attains the age of 23 years, whichever first occurs Each parent shall have the right to name a trustee to hold the proceeds of the life insurance for the support, education, health and welfare of the minor child.
If life insurance is not provided by the parent's employer, neither parent shall be required by this paragraph to pay a yearly life insurance premium exceeding $300.00 per year and shall maintain term life insurance in the amount a $300.00 yearly premium will purchase.
9. MOTOR VEHICLES:
Each of the parties shall retain the motor vehicle in his or her possession. The husband and wife shall transfer to the other all their right, title and interest in and to the automobile driven by the other party within 15 days of the date of this decision. The Wife shall hold the Husband harmless and indemnified from any automobile loans made to the husband or the wife by her father during the marriage as the court has taken those loans into consideration in the property settlement.
The parties shall be solely liable for their own automobile insurance, registration, personal property taxes and repairs.
10. DEPENDENCY EXEMPTION:
The Husband shall be entitled to take the minor child as an exemption for federal and state income tax purposes as long as his child support and medical reimbursement payments are paid in full by December 31st of the calendar year.
11. EDUCATIONAL EXPENSES:
The court shall retain jurisdiction to enter an educational support order pursuant to C.G.S. § 46b-56c.
12. PENSIONS, IRA ACCOUNTS. 401K ACCOUNTS, AND DEFERRED COMPENSATION ACCOUNTS:
The husband and wife shall keep as their sole property any retirement assets listed on their respective Financial Affidavits.
13. BANK ACCOUNTS/STOCK HOLDINGS:
The husband and wife shall keep as their sole property any savings, checking and stock accounts listed on their respective Financial Affidavits as well as any assets listed on their respective Financial Affidavits.
14. DEBT:
The husband and wife shall each be solely liable for the debt listed on their respective financial affidavits.
15. ATTORNEYS FEES:
The husband and wife shall each be liable for their own attorneys fees.
The outstanding fees of the Guardian Ad Litem (GAL,) in the amount of $6,950.00, are found to be reasonable and necessary. The husband shall pay 75% and the wife shall pay 25% of the GAL's fees in full within 45 days of the date of judgment.
16. MEDICAL INSURANCE — WIFE:
The husband shall provide the wife's attorney with information regarding her continued medical insurance coverage under COBRA. The Wife shall be liable for the cost of her COBRA benefits.
17. PERSONAL PROPERTY:
The husband shall be entitled to the personal property he has requested on Exhibit A of his Amended Claims for Relief. He shall make arrangements to remove the property within 30 days of the date of judgment or ownership of the property shall revert to the Wife. The wife shall cooperate with the removal of the husband's property.
The parties shall each retain all other personal property presently in their possession.
BY THE COURT,
Holly Abery-Wetstone, Presiding Judge