Opinion
No. FA 09 4047697
April 29, 2011
MEMORANDUM OF DECISION
I BACKGROUND AND FACTS
The parties in this dissolution matter were married in Burlington, Vermont on the 4th of July in 1998. Four minor children were born issue of this marriage: Tyler J. Disabella, born on July 25, 1999, Logan T. Disabella, born on December 26, 2000, Dylan F. Disabella, born on January 19, 2002 and Kylee R. Disabella, born on April 24, 2004. This case was tried to the court on March 10th, 11th and 31st, 2011, as well as on April 4th, 5th and 7th, 2011.
Until recently, both parties were represented by counsel. Although, both counsels' motions to withdraw were granted by the court, Prestley, J., on February 14, 2011, the defendant appeared with new counsel at the time of trial and the plaintiff nonetheless proceeded in this matter as a self-represented party.
A. Summary of Previous Court Orders 1. Custody Orders, Inter Alia
This is a high conflict dissolution case. The court will therefore, by way of background, summarize the court orders leading to this trial for the dissolution of the parties' marriage. In late November of 2009, the defendant left the marital home located at 9 Farmview Circle in Granby, claiming she needed to protect herself and her children from domestic violence. As described in testimony and corroborated by the Family Relations study, a dispute between the parties arose upon the defendant's late return from her work as a contract flight attendant, involving international travel. During this argument, the plaintiff exhibited threatening behavior, used offensive language and pressed the defendant up against a sink in the family kitchen, while spitting in her face in the presence of one of their minor children. This incident was not reported to the police and did not result in any physical injury to the defendant.
It was not clear whether the spitting was intentional or if it resulted from close, vociferous speech.
Soon thereafter, this fully contested dissolution case was filed with the court on November 25, 2009, initiated with an application for ex parte relief by the plaintiff. The application for ex parte relief was granted by the court, Dolan J., who ordered, in relevant part, that "[the] plaintiff is granted sole custody of the minor children, without prejudice, solely for the purpose of helping him locate the children." Soon thereafter, the children were discovered with their mother at her parent's home in Mattapoisett, MA, where the children had been enrolled by the defendant in the local school system. In addition, an order of restraint had been issued on behalf of the defendant against the plaintiff in Massachusetts.
By agreement of the parties and within one month after the defendant's departure from Connecticut, the children were returned to the marital home to visit with the plaintiff during the weekend before Christmas. After this initial order of visitation was agreed to by the parties and ordered by the court, Dolan, J. on December 16, 2009, the parties further agreed to return the children to the marital home in Granby in a so-called "nesting" arrangement. The essential terms of this arrangement were that the parties would have joint legal custody and would share physical custody of the children at the marital home. The agreement and order provided for the defendant to reside exclusively at the home with the children for four days during weekdays and the plaintiff at the home for three full days on weekends from Friday until Monday. See December 21, 2009 order of the court, Dolan, J. Notwithstanding this agreement, the defendant has steadfastly desired to relocate with her children to her hometown of Mattapoisett, MA.
Soon thereafter, both parties were arrested for disorderly conduct on January 29, 2010, involving allegations of domestic violence. Although the defendant claims a long history of abusive behavior toward her by the plaintiff, this was the first arrest for domestic violence for both parties. These arrests resulted in limited protective orders against each of the parties but no convictions. The Department of Children and Families (DCF) has also become involved in this matter, including one other reported incident involving an allegation of violence by the defendant toward one of the children; however, after DCF's investigation was concluded, the case was closed as unsubstantiated.
Because of a high level of continuing conflict between the parties, the nesting arrangement was proving to be unsuccessful and on January 31, 2011, the plaintiff was ordered by the court, Prestley, J., to move from the marital home on or before February 28, 2011. Although the defendant continues with her visits in the marital home, the plaintiff has recently moved to a new residence and is now leasing a two-bedroom condominium in Granby with a large finished basement and with sufficient room for his minor children.
2. Financial Orders
On February 24, 2010, the plaintiff was ordered by the court, Caruso, J., to pay unallocated support to the defendant in the amount of $1,200 per week. On March 1, 2010, this order was clarified by the court, Caruso, J., for the plaintiff to leave a check in this amount at the family home by Monday each week, when the defendant was scheduled to resume her turn "nesting" at the family home. The order does not identify the expenses to be paid by the defendant; however, it is clear from the record of the proceedings on February 24, 2009, that the unallocated support of $1,200 was for the purpose of the defendant to pay household expenses. Historically, these household expenses have been paid by the defendant for many years in the higher amount of $1,500 per week.
At or about the time the initial order of support was issued by the court, the plaintiff claims and the court finds that his financial circumstances substantially changed because Nutmeg Express, Inc. lost its primary delivery contract with Office Max. Therefore, on July 14, 2010, the court, Caruso, J., reduced the unallocated order of support "from $1,200 per week to $600 per week, with the additional $600 held in abeyance."
This court order further reflects that the defendant did not appear at the hearing, although she was represented by counsel. Therefore, she was ordered to appear "at the next hearing and testify as to: a. where she was today . . . and; b. whether, as of today, she was in possession of any uncashed family support checks she has received from the plaintiff." Judge Caruso held no further hearings on the issue of support and, therefore, the court considers his July 14, 2010 order of unallocated support in the amount of $600 to be his final judgment on the plaintiff's motion to modify.
Although this case was scheduled for a dissolution trial in November, the matter was continued. The next hearing and order of the court, Prestley, J., was on January 31, 2011, at which the order of support was further modified and reduced. Instead of an unallocated weekly order of support in the amount of $600, the plaintiff was ordered "to pay $400 per week to the Defendant in child support." The plaintiff was further ordered to pay the defendant's auto insurance bill and the utilities at the family home, not previously ordered by Judge Caruso, but assumed by the plaintiff on several previous occasions in lieu of his support obligation. These orders were substantially reiterated in a subsequent order of the court, Prestley, J., on February 14, 2011.
CT Page 10415
B. Additional Relevant Facts
Both parties appear to be in good physical health. The plaintiff is a high school graduate and thereafter served in the Marine Corps for over eight years. After serving in the Marines, the plaintiff became a financial planner and earned his Series 6 license to sell financial products, limited to mutual funds and various forms of insurance. Since 1993, the plaintiff has been self-employed in a trucking and delivery business — a trade he learned in the Marines. He now operates Nutmeg Express, Inc, a C corporation owned equally by both parties. Until approximately 2003, the defendant carefully followed and organized all financial matters associated with the family business. Since then, her involvement and knowledge of the business has been diminished to the point where she now has little, if any, current knowledge of the financial status of Nutmeg Express. However, it has been the long-time practice of the parties to draw $1,500 per week from the income stream of the business for household expenses.1. Plaintiff's Income
The plaintiff's financial affidavits filed with the court show a declining weekly gross income, from $1,572 on April 11, 2010 to $1,289 on May 24, 2010, and July 14, 2010. Most recently, he shows gross weekly income of $1,000 on his financial affidavit of January 11, 2011. This income compares very poorly to his last income tax filing for Nutmeg Express, filed for the 2006 income year, showing $508,000 in gross sales. Over the course of the last decade, the plaintiff's business has won and lost two major contracts, one for Nordic Track and the other for Office Max. The parties appear to agree that the independent moving and delivery business is cyclical and, in addition, the plaintiff claims that he is currently a victim of a poor economy. There is no allegation that the plaintiff intentionally or negligently lost these large contracts.
The defendant asserts that the plaintiff's weekly income capacity is substantially higher than the income reflected in his current financial affidavit. Largely based upon the defendant's history of a substantially higher gross income, the defendant further asserts that the court should find an income capacity of $3,000 per week, imputed to the plaintiff.
"[T]he court may base financial awards on earning capacity rather than actual earned income of the parties . . . While there is no fixed standard for the determination of an individual's earning capacity . . . it is well settled that earning capacity is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health . . . [T]he court may consider earning capacity from employment when the evidence shows that the reported amount of earnings is unreasonable. Thus, for example, when a person is, by education and experience, capable of realizing substantially greater earnings simply by applying himself or herself, the court has demonstrated a willingness to frame its orders on capacity rather than actual earnings. It is appropriate to consider a party's earning capacity where there is evidence of that party's previous earnings." (Citations omitted; internal quotation marks omitted.) Boyne v. Boyne, 112 Conn.App. 279, 283, 962 A.2d 818, 821-22 (2009).
Historically, the plaintiff has admitted to gross personal income of as much as $200,000, earned annually from his delivery business. In 2006, for example, Nutmeg Express, Inc. made $508,000 in gross sales according to his Corporate Income Tax Return for the 2006 tax year. Unfortunately, this was the last year for which tax records are available. Furthermore, both these examples of income were earned at times when Nutmeg Express had large delivery contracts with national retailers.
There was no creditable evidence presented of the plaintiff's gross income being greater than the $1,000 per week he claims on his current financial affidavit. There is, however, ample evidence that the family has previously drawn, on average, $1,500 per week from the Nutmeg Express business account for many years for the household expenses of the family. Furthermore, approximately one year ago on April 11, 2010, the plaintiff's financial affidavit showed gross weekly income of $1,572. The court notes that this income was being generated by the plaintiff at a time when Nutmeg Express had no large contracts, such as Office Max or Nordic Track. Therefore, instead of using the defendant's imputed income figure of $3,000, the court finds that a more reasonable figure of $1,500 should be imputed to the plaintiff, based upon his age, health, vocational skills, history of employment and general employability.
2. Defendant's Income
The defendant has also graduated from high school and has attended a junior college. Since college, she has been a Resident Director at the junior college she attended in her youth, a buyer for Levi Strauss Company and, more significantly, has been trained as a commercial flight attendant. At the time she met the plaintiff, she earned $62,000 per year as private flight attendant, which included $10,000 in annual bonuses. During the marriage, she has occasionally worked as a private contract flight attendant. She has previously described herself on her financial affidavits as both a homemaker and contract airline stewardess, making anywhere from $220 per week on her financial affidavit of July 14, 2010 to $60 per week on her financial affidavit filed with the court on January 11, 2011. Most recently, she has described herself as a homemaker making no weekly income.
The plaintiff continues to assert that the defendant is employable, yet seeks no employment opportunities. Although the court concurs that the defendant has neither worked nor sought significant employment in recent years, she now admits to a weekly income capacity of $500. Given her vocational skills, experience, employability, age and health, the court concurs. It has been thirteen years since the defendant earned $62,000 per year, and after primarily rearing four young children for many years, her employability has been impeded and it may take time for her to substantially, and then fully, be reengaged in her occupation.
3. The Family Home
The title and mortgage associated with the family home are exclusively in the name of the defendant, due to the historically precarious nature of the plaintiff's business. According to her financial affidavit, the defendant values the home at $309,900, with an outstanding mortgage balance of $325,000.
Instead of using support payments from the plaintiff on household expenses, such as the mortgage and utilities, there was credible evidence to support the plaintiff's assertion that the defendant spent this money somewhat frivolously, including $300 in limo rides for a scavenger hunt. The defendant justifiably claimed that the children needed to have fun during these tumultuous and trying times; however, more frugal family fun is demanded by these more frugal times. Although the plaintiff has been in substantial arrears for many months, the mortgage has been in longstanding default and an action to foreclose the mortgage has been initiated by the mortgagee. In addition, the electricity for the home is due to be shut off on May 1, 2011.
Credible evidence was also presented of the plaintiff's numerous charges at the Tower Ridge Country Club, where the family has a life-time membership. The focus here, however, is on the use of support payments while they were timely.
4. Support Arrearage
The plaintiff has been in substantial noncompliance with the orders of support for many months. Based upon Judge Caruso's order modifying unallocated support from $1,200 to $600 per week on July 14, 2010, and then Judge Prestley's order modifying this amount to $400 per week in child support on January 31, 2011, the defendant claims an arrearage of $21,484.50, as of April 8, 2011. Although generally admitting the arrearage, the plaintiff claims additional credit for payments made to the defendant, or on her behalf, in lieu of support.
See § I.A.2. of this decision.
The first of these claims involves withdrawals from the Nutmeg Express, Inc. accounts on numerous occasions in November and December 2009, prior to the initial order of support. These withdrawals occurred primarily while the defendant was living at her parent's home in Mattapoisett. These funds totaled approximately $14,000; however, most of it was returned to the corporate accounts of Nutmeg Express and the defendant retained only $3,000 of these funds prior to the issuance of the court's order of support on February 24, 2010. Based upon these facts, the court grants no credit to the plaintiff for these withdrawals, noting that the defendant was an equal owner of the business at that time.
The second category of claims involves diverted business checks obtained by the defendant. One-half the amount of a check for $2,955 has previously been credited to the plaintiff in the defendant's calculation of the arrearage owed, as reflected in a transaction dated November 1, 2010. Defendant's Exhibit S. Similarly, a $600 business check was diverted by the defendant to an independent Nutmeg Express, Inc. business account, awaiting a court order for distribution. The court orders these funds distributed to the defendant for her personal use and support. The plaintiff shall be credited for this payment, accordingly.
The plaintiff also claims credit for utility payments made on behalf of the defendant, absent an order to do so. The court finds the plaintiff made payments to Fusco Oil of $314.80 on January 4, 2010 and of $312.38 on March 4, 2010 on behalf of the defendant. Similarly, the court finds that the plaintiff made payments to CL P of $350.00 on March 12, 2010 and of $354.41 on May 4, 2010 on behalf of the defendant, all of which were paid during a period of time when it was her responsibility to do so pursuant to court order and at times when the plaintiff was current with his obligation of support. The plaintiff also claims to have made a $300 payment to the defendant on June 25, 2010, which she acknowledges but which is not reflected in her ledger of arrearages on Exhibit S. Therefore, the defendant's claimed arrearage of $21,484.50, as of April 8, 2011, is reduced by $2,231.59 to $19,252.91.
5. Breakdown of the Marriage
The Guardian Ad Litem (GAL) and the Family Relations Counselor involved in this case consider the marital and parental relations between the parties to be toxic. Although the parties were generally civil in their demeanor in court during the trial, they repeatedly challenged each other's accounts of facts and veracity throughout the trial. The defendant, in particular, consistently exhibited an unyielding distain for the plaintiff's positions while testifying in court, although the court acknowledges the difficulty of being examined and cross-examined by a spouse during a contentious dissolution proceeding.
The GAL testified that he has never seen as toxic a conflict over parenting in his 23 years of practice as a family lawyer. In his opinion, the defendant was particularly incapable of cooperatively parenting the children with the plaintiff. This was most particularly highlighted for him when she suspected that one child was being abused by the other children and called DCF to investigate. Despite the lack of substantiation of abuse in the opinions of both DCF and the GAL, the defendant refused to follow the parenting schedule until she was threatened with arrest for custodial interference. Although it was very reasonable for the defendant to be concerned about the health and safety of her child, this incident is further evidence of the inability of the defendant to cooperate with the plaintiff in parenting these children and in following court orders.
The Family Relations Counselor who studied this family was similarly concerned about the ability of the parties to cooperatively and constructively co-parent these children. In the conclusion of her report, she states that "[n]either the plaintiff nor the defendant displays any respect for the other. They have both reported incidents of arguments and humiliating each other in public. They have admitted discussing their marital discord with mutual acquaintances. Defendant has informed the children's teachers that they would not be returning to their respective schools, as they will be living in Massachusetts. The relationship that these parents have developed is toxic. It appears that the bitterness of this divorce has caused both parents to lose focus of the importance of assisting their children through this difficult time. Instead they continue to expose their children to the police, berate one another, and cause undue additional stress in an already stressful situation.
"It is believed that the plaintiff and the defendant will continue to have difficulties coparenting their children without the assistance of professionals. In an effort to avoid the children's decline in function and to increase the children's ability to communicate their feelings to their parents without the fear of repercussions, it is vitally important for the parents to participate in co-parenting counseling on a consistent and on-going basis." Exhibit A at pp. 16-17.
The antipathy between the parties extends to the defendant's side of the family. Although this may exist on both sides of the family, it is particularly relevant to these proceedings in the context of the defendant's desire to relocate to her family's hometown. During one of many disputes between the parties, the plaintiff inappropriately arrived at the marital home during the defendant's parenting time, to check on the alleged victim of abuse, as previously described, whom he had not seen pursuant to the parenting schedule and who had not been at school. The plaintiff arrived at the family home while the other children were exiting their school bus into the care of the defendant's father. The defendant, who was inside the home, called the police and, upon their arrival, both the plaintiff and his father-in-law were arrested. Other disputes between the plaintiff and his father-in-law have been testified to, including one in a police station and another at the law offices of the GAL, Leo Diana. Due to these interactions and despite the family's claims to the contrary, the GAL has concluded that the defendant and her family cannot reasonably be expected to cooperate with the plaintiff in the exercise of his parental rights.
The causes for the failure of this marriage may be complicated but, in the court's view, the breakdown was initially precipitated by the defendant's discovery that the plaintiff was married to another woman. After four years of marriage and the birth of three children, the defendant received a phone call from Nina J. Monroe in 2002, claiming to be the plaintiff's wife. The purpose of Ms. Monroe's call was to formalize the dissolution of her marriage to the plaintiff. After initially believing in her husband's honor and the legitimacy of her marriage, and therefore doubting Ms. Monroe's account of the facts, the defendant was ultimately convinced of the accuracy of Ms. Monroe's claim that, indeed, Ms. Monroe's marriage to the plaintiff predated the marriage of the parties. When the plaintiff denied that he was ever married to Ms. Monroe, the parties began to engage in an argument that the defendant described, for the first time, as threatening and abusive.
The parties have provided no documentary evidence of the marriage of the plaintiff and Ms. Monroe or their divorce, and there is no action for annulment or motion to otherwise determine the validity of the marriage of the plaintiff and the defendant. The court emphasizes that there was no evidence admitted or offered that martial relations continued between the plaintiff and Ms. Monroe during the marriage of these parties. In fact, she lived in California and was seeking the dissolution of her marriage to the plaintiff for the purpose of marrying another man, a detail of substantial significance that appears to have escaped the conscience of the plaintiff.
6. Connection with Granby and Mattapoisett CT Page 10421
During this nearly thirteen (13) year marriage, the parties have lived in Coventry, Farmington, Southington and have now lived in Granby since the birth of Kylee in 2004. This is a significant sequence of events, in that the parties had yet another child and established their family home in Granby, all since the discovery of Ms. Monroe in 2002. Therefore, although a major factor in the breakdown of the marriage may have occurred before the birth of Kylee and the move to Granby, the children have been raised primarily in this town and are uniformly considered to be strongly connected to this community.
All of the children desire to live in Granby and visit regularly in Mattapoisett, with the exception of the youngest child, Kylee, who would appear to be happy to live in either location. The children are highly engaged in athletic activities at school and in local leagues. The children are generally successful and enjoy their local schools. And, in fact, the children are uniformly described as great kids who are extraordinarily capable of coping with the adversity of this acrimonious dissolution in the context of the deep support they find in the friendships they have and families living with them in Granby.
The children have also regularly visited with the defendant's family, the Camachos, in Mattapoisett and maintain positive and strong relationships with the twenty-six (26) members of the Camacho family who reside in that area of Massachusetts. The Camacho family has generously offered to support the defendant by providing a separate and available home to accommodate the needs of defendant and her children. In fact, it appears to be an ideal location to raise the children, particularly for the defendant with the support of her family and in light of the limited financial resources now available to the parties.
Notwithstanding the positive aspects of a life for the children with their mother in Mattapoisett, both the GAL and the Family Relations Study recommend that it is in the best interest of the children to continue to reside in Granby, in a shared parenting relationship.
7. Relationships with the Children
It is important to state very clearly at the outset, that the evidence uniformly supports the conclusion that the parties love their children and that the children love their parents in return. The evidence also supports the conclusion that it is in the best interest of the children to have the benefit of ongoing and continuous relationships with both of their parents. This conclusion, however, complicates the difficult custody decision in this case involving tumultuous relationships, limited financial resources and the defendant's desire to relocate to Mattapoisett.
The plaintiff asserts that the defendant is unilateral in her decision-making involving the children and that she violates court orders concerning access. He further asserts that she unreasonably denies him contact with the children while they are in her care. The defendant counters that the plaintiff has been verbally and, at times in the past, physically abusive toward her in the presence of the children. She further claims that the plaintiff fails to comply with his orders of support and that he has inappropriately sought access to the children while they are scheduled with her. In general, she claims that she has been the more diligent and involved parent than the plaintiff and is better prepared to primarily parent the children in the future. The court finds there is credible evidence in the record to support all of these assertions. However, the court also finds that the evidence supports the conclusion that the plaintiff's capacity and willingness to parent the children successfully has grown during the period of shared parenting, in place now for over one year.
The only parent-child relationship of particular concern to the court in this case involves Tyler, who exhibits a very strong connection with his father. This appears to be a natural connection for a boy of his age, who is deeply committed to the sport his father played in high-school and who unambiguously considers his father to be his hero. Tyler was also described as more negatively affected by the divorce than the other children. In particular, his schoolwork has suffered and he has been more saddened than the others by this case, which both parties have discussed in the presence of the children. The good news is that Tyler's schoolwork and outlook have improved since the nesting arrangement concluded several months ago and also since the plaintiff has focused him more on homework during his weekend visits.
Interestingly and somewhat ironically, although the defendant is generally described as a more organized and involved parent, she took exception to the plaintiff assisting Tyler with his homework, as contrary to the general, pedagogical goal for sixth graders, stressing independent accountability and responsibility for their work.
By contrast, the relationship between Tyler and the defendant is more complicated. When describing all of her children, the defendant's testimony focused at length on her relationship with the oldest of her four children, Tyler, who appears to be more enigmatic to her than the others. The defendant has attempted in the past to describe her son as having some degree of Asperger's Syndrome, without the benefit of a diagnosis. Although she attempted to have this diagnosis explored by school professionals, she now understands that Tyler does not suffer from this autism spectrum disorder. Although she vehemently denies ever referring to him as "damaged goods," she did refer to him in her testimony as a "practice child" and she appears to struggle to understand his "off to the left behavior," his impulsiveness and his need to be managed. She also appears to associate Tyler with some of her husband's character flaws involving aggression, which she believes has been caused by witnessing the plaintiff's abusive behavior toward her in the past.
Although the plaintiff's sister, Kathy Hartjie, explained the relationship between the defendant and Tyler as one involving a limited maternal connection, the court sees no serious impediment to the development of a positive parental relationship between Tyler and his mother.
II FURTHER FINDINGS, DISCUSSION AND ORDERS A. Jurisdiction and Dissolution of Marriage
After reviewing the evidence and evaluating the testimony of the parties and other witnesses, the court makes the following findings and conclusions, in addition to other findings of fact made by the court, infra. The court has jurisdiction in this case and the marriage has broken down irretrievably with no reasonable expectation of reconciliation. The parties have received state assistance during the course of the marriage and the state seeks orders, to which the parties have no objection, except for the support arrearage owed by the plaintiff to the defendant addressed, infra. Based upon these findings, the marriage of the parties is ordered dissolved effective this date of judgment.
B. Custody and Access
The plaintiff contests the defendant's plan to relocate with their children to Mattapoisett, MA. In dissolution judgments involving contested relocations of custodial parents, trial courts are required to consider the best interests of minor children in making initial determinations of custody. In determining the best interests of minor children in Connecticut, the court is guided by the provisions of General Statutes § 46b-56 and, more specifically, the sixteen (16) factors specified in subsection (c) of the statute.
In Ireland v. Ireland, 246 Conn. 413, 717 A.2d 676 (1998), the Supreme Court established a burden shifting rule for post-judgment relocation cases, as well as specific factors to be considered, referred to as the " Tropea factors." Subsequently, the legislature modified the Ireland burden shifting rule by enacting General Statutes § 46b-56d, which sets forth the required considerations in post-judgment relocation cases. In Ford v. Ford, 68 Conn.App. 173, 789 A.2d 1104 (2002), cert. denied, 260 Conn. 910, 796 A.2d 556 (2002), the Appellate Court held that the, now overruled, two-step burden shifting analysis in Ireland did not apply to relocation orders entered at the time of dissolution. In making this determination, the Appellate Court reasoned that "[a]t a trial for the dissolution of a marriage, unlike at postjudgment proceedings, the interdependence and relationship between a custodial parent and child has presumably not yet been formed." Id. at 180.
In Ford, the Appellate Court specifically held "that burden-shifting scheme in Ireland, and the additional Tropea factors, do not pertain to relocation issues that arise at the initial judgment for the dissolution of marriage. Rather, we find that Ireland is limited to postjudgment relocation cases. We conclude that because the Ireland court did not expand its holding to affect all relocation matters, relocation issues that arise at the initial judgment for the dissolution of marriage continue to be governed by the standard of the best interest of the child as set forth in § 46b-56. While the Ireland factors may be considered as "best interest factors" and give guidance to the trial court, they are not mandatory or exclusive in the judgment context." Id. at 184.
General Statutes § 46b-56(c) provides "In making or modifying any order as provided in subsections (a) and (b) of this section, the court shall consider the best interests of the child, and in doing so may consider, but shall not be limited to, one or more of the following factors: (1) The temperament and developmental needs of the child; (2) the capacity and the disposition of the parents to understand and meet the needs of the child; (3) any relevant and material information obtained from the child, including the informed preferences of the child; (4) the wishes of the child's parents as to custody; (5) the past and current interaction and relationship of the child with each parent, the child's siblings and any other person who may significantly affect the best interests of the child; (6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders; (7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute; (8) the ability of each parent to be actively involved in the life of the child; (9) the child's adjustment to his or her home, school and community environments; (10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the child's family home pendente lite in order to alleviate stress in the household; (11) the stability of the child's existing or proposed residences, or both; (12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child; (13) the child's cultural background; (14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child; (15) whether the child or a sibling of the child has been abused or neglected, as defined respectively in section 46b-120; and (16) whether the party satisfactorily completed participation in a parenting education program established pursuant to section 46b-69b. The court is not required to assign any weight to any of the factors that it considers."
In Ford v. Ford, 68 Conn.App. 173, 789 A.2d 1104 (2002), cert. denied, 260 Conn. 910, 796 A.2d 556 (2002), the Appellate Court held that the relocation analysis of Ireland v. Ireland, 246 Conn. 413, 717 A.2d 676 (1998), was inapplicable to initial custody judgments because "unlike at postjudgment proceedings, the interdependence and relationship between a custodial parent and child has presumably not yet been formed." Id. at 180. The court's reasoning appears to apply, notwithstanding the possible existence of pendente lite orders awarding primary residential custody to one parent over the other.
In the present case, the parties have engaged in a shared parenting arrangement since January 2010. Therefore, the existing interdependence and relationships between the children and both parents would be less "formed" with one parent than the other and, arguably therefore, more significantly altered in this case by the relocation of the defendant to Mattapoisett. Based upon the facts of this case and the applicable law, the court finds it is in the best interest of these children to have both parents actively involved in their daily lives. This, of course, militates against the defendant's relocation to Mattapoisett for this and many other significant reasons.
First and foremost, the court finds it to be in the best interest of the children to remain within the continuity of the schools and community which have embraced and successfully sustained them for most of their lives. Mattapoisett might offer the same community support and the potential for yet more extended and beneficial family involvement in their lives; however, this would be a conclusion reached only through speculation.
Moreover, the court cannot discount the concerns of the GAL and the Family Relations Counselor who have been directly involved in the lives of this family and who are seriously and legitimately concerned over the historical difficulties between the plaintiff and the defendant, and particular members of her family. Although there may have been good cause for the defendant's rejection of the plaintiff as husband and as member of the Camacho family, the plaintiff appears to remain unforgiven for his transgressions. Until this dynamic of poor relations between the parties is resolved, the court fears that the nearly three hours distance between Granby and Mattapoisett may as well be an ocean.
The defendant legitimately considers the recommendation of shared parenting in Granby to be paradoxical, assuming the toxicity of the relationship between the parties. She counters that this inability to co-parent is inimical to and inconsistent with the proposed shared parenting plan in Granby. The defendant therefore reaches a different conclusion, compared with the GAL's recommendations and the Family Relations Study. Instead, she believes that the best interests of the children favor a custody and access order limiting the interactions of the parties. By allowing the defendant to relocate with the children to Mattapoisett as the primary parent, the regular interactions required of a shared co-parenting plan would be minimized and, therefore, the potential for exposing the children to conflict between the parties would be mitigated. Although this may be true in theory and in practice, the strong prediction based upon the factual history of the parties, especially by the GAL, is that the plaintiff would be substantially excluded from the lives of his children. This consequence however, by virtually all accounts, would not be in the best interests of the children.
The most significant problem with the children living in Granby is financial. Sustaining two homes in Granby has become extraordinarily difficult since the nesting arrangement ended in January. The plaintiff's business has suffered as the economy has in recent years and particularly by the loss of several major delivery contracts over the course of several years. When provided with funds to pay for household expenses, the defendant failed to pay the mortgage on the family home and has been defaulted. The plaintiff has since been substantially noncompliant with his support obligation since July 2010 and is now renting a condominium while the fate of the family home languishes on the foreclosure docket. It is important to note that the plaintiff was ordered to vacate the family home to end a very difficult nesting arrangement.
Financially, the plaintiff is unable to move his place of business. The plaintiff's business, Nutmeg Express, Inc., has been moderately successful in recent years and is the only significant economic engine, generating financial resources for this family. It has been located in Connecticut for over 17 years, and court agrees with the plaintiff's position that it is not a business operation easily moved to an entirely different market, such as Mattapoisett.
On the other side of the financial equation, the defendant has worked successfully in the airline industry in the past and the court takes judicial notice of the fact that parties' hometown of Granby is only one town away from Windsor Locks, where the largest airport in Connecticut is located. Although the defendant has not sought employment of any significance in recent years, Granby affords her an opportunity to work in her field of employment and to assist in the generation of income for this family.
The easy answer to this financial problem is to allow the defendant to relocate to the home offered by her family in Mattapoisett. From a financial perspective, this is an extremely compelling solution. It is more compelling in light of the plaintiff's precipitous drop in income to $1,000 per week, compared with his historic weekly income apex of nearly $4,000, earned approximately five years ago. It is very easy to say that the plaintiff should be held accountable for the financial problems this family faces and, for this reason, the Mattapoisett solution should be welcomed by everyone concerned for this family.
In determining the best interests of the children, a parent's willingness to provide support is important and relevant. However, there has been no substantial evidence presented to support the conclusion that the plaintiff undermined the success and profitability of his business. There is evidence, however, that the defendant has failed to seek substantial employment for several years, notwithstanding the serious financial problems facing this family and the existence of a shared parenting plan for well over one year. Although these financial considerations are extremely important to the survival and well-being of the children, the answer to the question of what is in their best interests is more complicated.
The problem with the Mattapoisett solution is that the plaintiff, the Family Relations Counselor and, in particular, the GAL all fear that if the children move to Mattapoisett, the defendant and her family will, by the nature of their relationships, limit the plaintiff's access to his children. The plaintiff testified that the defendant makes unilateral decisions and fears that, with the support of her family, he will be excluded from their lives. Although this conclusion is arguably speculative, the court considers it to be based upon credible evidence. Generally, the defendant appears to conclude that she is correct in her perceptions and decisions regarding the children, and she therefore more rigidly maintains her positions, making co-parenting more difficult.
The defendant clearly and emphatically states that her children love their father and that she would encourage and foster their continuing relationship. However, examples to the contrary are numerous, beginning with her plan to leave with the children to Mattapoisett, without notice to the plaintiff. She executed the plan in advance when she was in no danger of immediate harm, as the precipitating and abusive incident occurred several days earlier. Although there has been a history of abusive language and unacceptably aggressive behavior by the plaintiff toward the defendant, there is no evidence of domestic violence that has resulted in physical harm of any kind to the defendant or to the children. The only arrests that have occurred for domestic violence are on charges of disorderly conduct, and those charges were leveled against both parties.
The tendency to be unilateral in her thinking and actions was also exhibited in the Asperger's Syndrome concern she expressed about Tyler. It was again exhibited in the abuse she suspected involving her children, and particularly in her refusal to follow the parental access orders after this allegation was found to be unsubstantiated. Further, the court cannot ignore the defendant's unwillingness to seek significant employment during the pendency of this case as, by inference, yet another example of her unilateral thinking. Because the defendant does not consider the Granby area to be the proper location for her family, she has successfully avoided achieving financial security in this geographical area by failing to seek or find any significant employment, despite her capacity to do so and while her family has suffered financially. The court also finds her unilateral thinking to have been exhibited in court. Although the defendant exhibited a calm and reasoned tone, generally, she was vehemently dismissive of the plaintiff's claims during the trial. To the defendant's credit, she has not attempted to alienate the affections of the children toward their father. The plaintiff by comparison and despite his flaws as a husband, seemed more willing to support the defendant's positive role as a mother to their children.
Although perseverance may be a very admirable personality trait in some contexts, the court concludes that the defendant's unyielding approach to the plaintiff, if unchecked in Mattapoisett, would be an impediment to the plaintiff's ongoing relationship with the children. Based upon this reasoning and the existing facts of this case, it would not be in the best interests of these children to relocate to Mattapoisett. Therefore, the court issues the following orders regarding custody and access, which are generally consistent with the recommendations of the Family Relations Study and the GAL:
At trial and absent objection, the defendant's father offered a newspaper article about his daughter's speech at her high school graduation in 1983, where she was president of her class. On the article, he wrote: "Note: this is Cheryl" pointing to the following passage: "The class gave rousing approval to her suggestion that `if we fail at what we set out to do, we must get back on our feet and try harder.'"
1. The parents shall share joint legal custody of their children, Tyler J. Disabella, DOB 07/25/99; Logan T. Disabella, DOB 12/26/00; Dylan F. Disabella, DOB 01/19/02; and Kylee R. Disabella, DOB 4/24/04. Joint legal custody refers to both parents having equal input into their children's medical, educational and religious decisions. In the event of an impasse on non-emergency medical or educational decisions, final decision making authority shall be vested in the plaintiff, with the exception of religious decisions, over which the defendant shall have final decision making authority. These orders concerning final decision making do not reflect the incapacity of either party to make sound and informed decisions. Instead, they reflect the need for decision making, generally, without unnecessary delay or further action of the court.
In light of the Sunday parenting schedule, infra, and the defendant's interest in attending church with the children, she is authorized to make decisions regarding religion, except to the extent they interfere with the parenting schedule or the educational and medical decision making authority assigned to the plaintiff.
2. The parents shall share physical custody, with the defendant having parenting time from 9:00 a.m. Sunday through to school on Wednesday morning. The plaintiff shall have parenting time from Wednesdays after school through Sunday morning when the children are returned to the defendant.
3. The drop-off and pick-up locations shall occur at the children's school and/or after school program and/or child care provider. On Sunday mornings, transfers shall be curbside at the defendant's home.
4. The parents shall alternate all major holidays, with the exception of Thanksgiving and Christmas which shall be spent with the defendant. The Thanksgiving holiday shall commence Wednesday after school and extend until Friday evening at 6:00 p.m. The Christmas holiday shall commence on Christmas Eve from 2:00 p.m. until December 29th at 5:00 p.m. The plaintiff shall then have parenting time through New Year's Day at 12 noon. Based upon the existing parenting schedule, Easter shall be spent with the mother and will not alternate, given her commitment to attending church with the children.
All other major holidays shall alternate annually from 9:00 a.m. to 9:00 p.m. as follows, except that the 9:00 p.m. return may be extended on the 4th of July until the conclusion of any locally scheduled fireworks display occurring on that day:
Mother Father Odd Memorial Day Even Even Fourth of July Odd Odd Labor Day Even5. The defendant shall always have Mother's Day; the plaintiff shall always have Father's Day. These holidays shall be defined as 5:00 p.m. on the evening prior until 6:00 p.m. on the holiday.
6. Each parent shall spend four consecutive hours with the children on each child's birthday, so long as it occurs on a weekend or holiday; otherwise, for a period of two hours.
7. Each parent shall have the right of first refusal should he or she not be available to their children for scheduled parenting time. Pick-up and drop-off shall be curbside by the parent exercising the right of first refusal.
8. Each parent shall have four weeks of summer vacation time with the children with the time divided in two-week increments. The parent who is spending vacation time with the children shall be responsible for securing and maintaining consistent daycare and/or day camp activities for the children in the event that the parent is unable to take time off from work. The right of first refusal shall be suspended during vacation. To clarify, should the defendant have the children for vacation and she receives a call to work, she may make arrangements to leave the children in the care of family member(s) during that period of time. The same option shall be utilized for the plaintiff under the same circumstances.
9. If a parent is traveling with the children during scheduled vacation time, the vacationing parent shall provide the non-vacationing parent with thirty (30) days' advance notification of vacation plans with the children. The vacation notice shall include an itinerary and contact information.
10. Both parents shall agree upon enrolling their children in extra-curricular activities (i.e. camp, sporting events), and neither parent shall deviate from these activities without the prior consent of the other parent. The parties shall also share the cost of any and all agreed-upon extracurricular activities.
11. In the event that either parent decides to move from his/her current address, that parent shall provide the other parent with the new address within fourteen (14) days and by written notification sent by the United States Postal Service.
12. Should either parent decide to move from their current address before the last child turns 18 or remains a full-time high school student, the moving parent shall not relocate more than a twenty-mile radius from the non-moving parent so as to not interfere with the parenting schedule, unless a modification is effectuated by court order in advance of any such move or relocation.
13. The children shall have unrestricted telephone access to their parents; specifically, if either parent is away on business, the parent who is caring for the children shall allow the children to have reasonable telephone contact with the parent who is away. In addition, each parent shall provide a work itinerary when traveling out of the State of Connecticut (i.e. transportation and hotel information).
14. The parties shall attend counseling at a program like the PEACE Program to assist in their ability to co-parent their four children in a non-combative, meaningful manner.
15. The Guardian Ad Litem shall remain involved with this family and shall be consulted should parenting issues arise.
16. Both parents shall be involved with the children's therapy as requested by the therapist.
C. Child Support
The court has previously found the plaintiff to have imputed weekly income of $1,500 and the defendant to have imputed weekly income of $500. Based upon these imputed incomes, the Child Support Guidelines provide for, and the court orders, presumptive child support in the amount of $316, with unreimbursed medical expenses divided as follows: 50% paid by the defendant and 50% paid by the plaintiff, with the same percentage paid for work-related child care. The court will not deviate from the guidelines at this time in light of the fact that the defendant has no actual income.
The support arrearage of $19,252.91, previously found by the court as of April 8, 2011, is to be repaid at the rate of $64 per week until fully repaid, for a total weekly amount of $380.
All child support payments shall be paid through the State of Connecticut.
D. Health Insurance
The parties shall provide health insurance for the minor children through their employment, if it available at a reasonable cost, not to exceed 7.5% of net income. If unavailable through the parties' employment at a reasonable cost, the parties shall obtain medical insurance through HUSKY. Unreimbursed medical and dental expenses shall be shared equally by the parties, pursuant to the Child Support Guidelines. The provisions of General Statutes § 46b-84(e) are hereby incorporated by reference as if fully set forth in this judgment.
General Statutes § 46b-84(f) provides, in part: ". . . (2) The court shall include in each support order a provision for the health care coverage of the child who is subject to the provisions of subsection (a) or (b) of this section. Such provision may include an order for either parent or both parents to provide such coverage under any or all of subparagraphs (A), (B) or (C) of this subdivision . . . (A) The provision for health care coverage may include an order for either parent to name any child as a beneficiary of any medical or dental insurance or benefit plan carried by such parent or available to such parent at a reasonable cost, as described in subparagraph (D) of this subdivision . . . (B) The provision for health care coverage may include an order for either parent to: (i) Apply for and maintain coverage on behalf of the child under the HUSKY Plan, Part B; or (ii) provide cash medical support, as described in subparagraphs (E) and (F) of this subdivision. An order under this subparagraph shall be made only if the cost to the parent obligated to maintain the coverage under the HUSKY Plan, Part B, or provide cash medical support is reasonable, as described in subparagraph (D) of this subdivision. An order under clause (i) of this subparagraph shall be made only if insurance coverage as described in subparagraph (A) of this subdivision is unavailable at reasonable cost to either parent, or inaccessible to the child."
E. Post-Secondary Education
The court finds that if this family had remained intact, support for post-secondary education would have been made available, to the extent the family could have afforded to do so, as exhibited by the support and concern the parties have shown toward the education of their children. Therefore, pursuant to General Statutes § 46b-56c, the court retains jurisdiction over the post-secondary educational support of the three children, who are all under the age of twenty-three.
General Statutes § 46b-56c provides in part: "(a) For purposes of this section, an educational support order is an order entered by a court requiring a parent to provide support for a child or children to attend for up to a total of four full academic years an institution of higher education or a private occupational school for the purpose of attaining a bachelor's or other undergraduate degree, or other appropriate vocational instruction. An educational support order may be entered with respect to any child who has not attained twenty-three years of age and shall terminate not later than the date on which the child attains twenty-three years of age."
F. Life Insurance
The plaintiff shall maintain a life insurance policy, so long as it is available through an employer or at a reasonably affordable cost, in the minimal amount of $150,000. The defendant shall similarly maintain a life insurance policy, so long as it is available through an employer or at a reasonably affordable cost, in the minimal amount of $50,000. The beneficiaries of these policies shall be the minor children while they remain eligible for support. These amounts are modifiable, based upon a change in income and the remaining eligibility of the children for support under General Statutes §§ 46b-84 and 46b-56c.
G. Alimony
The statutory authorization for the award of alimony in dissolution cases is provided in General Statutes § 46b-82, and "the purpose of both periodic and lump sum alimony is to provide continuing support." Dombrowski v. Noyes-Dombrowski, 273 Conn. 127, 132, 869 A.2d 164 (2005). Based upon the facts of this case, and having considered all the statutory factors pursuant to General Statutes § 46b-82, the plaintiff shall pay to the defendant alimony in the amount $125 per week for a period of twelve (12) years from the date of the dissolution. Together with the current child support order of $380, the defendant will receive a weekly allocated support payment of $505. Based upon both the actual incomes of the parties, as well as their income capacities as determined by the court, this equally divides the family income between them.
General Statutes § 46b-82 provides: "(a) At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. The order may direct that security be given therefor on such terms as the court may deem desirable, including an order pursuant to subsection (b) of this section or an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. The court may order that a party obtain life insurance as such security unless such party proves, by a preponderance of the evidence, that such insurance is not available to such party, such party is unable to pay the cost of such insurance or such party is uninsurable. In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment."
The alimony award is non-modifiable as to duration, but shall terminate upon the death of either party or upon the remarriage of the defendant. The award is modifiable in the event of a substantial change in circumstances by either party and in the event of the defendant's cohabitation as defined by statute.
Each party shall also pay the other $1.00 per year in alimony, modifiable by the state for the purpose of reimbursement of state assistance and, in addition, by the parties for the purpose of any liability arising from the hold harmless provisions of the property, liability and real estate transactions, discussed infra.
H. Real Property
"The trial court is empowered to deal broadly with the equitable division of property incident to a dissolution proceeding, and, consistent with the purpose of equitable distribution statutes generally, the term property should be interpreted broadly as well . . . General Statutes § 46b-81 confers broad powers upon the court in the assignment of property, and the allocation of liabilities and debts is a part of the court's broad authority in the assignment of property." (Citations omitted; internal quotation marks omitted.) Roos v. Roos, CT Page 10432 84 Conn.App. 415, 420, 853 A.2d 642, cert. denied, 271 Conn. 936, 861 A.2d 510 (2004); see Clark v. Clark, 115 Conn.App. 500, 505, 974 A.2d 33 (2009); also see General Statutes § 46b-81.
The provisions of General Statutes section 46b-81 are as follows: "(a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the Superior Court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect. (b) A conveyance made pursuant to the decree shall vest title in the purchaser, and shall bind all persons entitled to life estates and remainder interests in the same manner as a sale ordered by the court pursuant to the provisions of section 52-500. When the decree is recorded on the land records in the town where the real property is situated, it shall effect the transfer of the title of such real property as if it were a deed of the party or parties. (c) In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates."
The marital home, located at 9 Farmview Circle in Granby, is solely in the name of the defendant. This home shall remain in her name. In the event of a foreclosure of the mortgage and the imposition of a deficiency judgment, the parties shall share in the repayment of that deficiency judgment equally, limited in amount to the liability existing at this time of judgment. The same shall apply to any tax liability on the real property, existing at this time of judgment. The parties shall hold each other harmless from the others' obligation.
The court is mindful of the fact that the total liability may be determined, ultimately, by the sales price of the home. Here, the court intends to fix the principal debt owed to the bank and to other lien holders as of this date. Any deficiency, of course, will be determined in combination with a sales price, which is unknown at this time.
So long as the home remains the subject of an action for foreclosure, the plaintiff shall have the right to purchase the marital home from the defendant if he tenders an amount sufficient to pay and extinguish all outstanding liabilities associated with the title, including any mortgages, liens and taxes.
This order is in consideration of the plaintiff's equitable interest in the liability associated with the home. The court shall retain jurisdiction regarding this transaction.
Other property 1. Nutmeg Express, Inc.
The defendant shall transfer all right title and interest she may have in Nutmeg Express, Inc., and the plaintiff shall be liable for all taxes associated with this business organization. At his own expense, the plaintiff shall prepare any documents necessary to effectuate the transfer of this business entity from both parties to the plaintiff alone. Beginning in ninety (90) days and until such time as the transfer of Nutmeg Express, Inc. is effectuated, the defendant shall be entitled to one-half of the net proceeds of the business, which shall include any amounts paid to or on behalf of the plaintiff for his personal use or consumption. From this net amount of proceeds from the business, the plaintiff may deduct any alimony payment otherwise due to the defendant. The defendant shall not unreasonably delay or refuse to effectuate the transfer.
2. Personal property
The parties have divided their personal property to their mutual satisfaction, except with regard to two television sets and a painting. The painting was a gift from the plaintiff to the defendant, which gift he will respect if she returns the 42" television set, which was a gift from her to him. The defendant, however, is only willing to return an older, 60" television set because the plaintiff is more capable of moving this exceptionally heavy item. For practical reasons alone, the court takes the defendant's position and orders her to allow reasonable access to the plaintiff, to remove the larger of the television sets within thirty (30) days; otherwise, it shall remain with the defendant to keep or dispose of as she deems appropriate.
All other personal property in the possession of the parties shall remain their property.
3. Motor Vehicles.
Each party shall retain and insure the respective vehicles in their possession and title to any such automobiles shall be transferred to the primary driver, if the title is in both names. Any automobile loans shall be paid by the primary driver and each party shall indemnify and hold the other harmless from any personal debts relating to these automobiles and loans.
J. Taxes
The parties shall file annual tax returns and provide copies of the returns and supporting documentation to the other party, postmarked on the date of filing.
The plaintiff shall make arrangements to file his delinquent state and federal income tax returns within a reasonable period of time. The defendant shall reasonably assist the plaintiff in the joint filing of any such delinquent personal and corporate income tax returns. The plaintiff shall be liable for all tax liability, interest and penalties associated with past-due income taxes.
So long as the plaintiff timely files his personal income tax returns in future tax years, or is otherwise granted extensions, he may claim the three oldest children as dependants on his returns, so long as they are eligible. He shall otherwise lose the right to claim these dependant children if he fails to timely file his returns and if the defendant files timely personal income tax returns and is eligible for a tax benefit from any dependant deduction.
The defendant may claim the youngest child as a dependant for tax purposes in future tax years, so long as she files timely state and federal income tax returns, or is otherwise granted extensions, and she is eligible to receive a tax benefit from the dependant deduction. She shall otherwise lose the right to claim the dependant child if she fails to timely file her returns and if the plaintiff files timely personal income tax returns and is eligible for a tax benefit from the dependant deduction. The court notes that, in the event of an untimely filing by the other party, an amended return may be necessary to effectuate and transfer this tax benefit provision from one party to the other.
At such time as only one eligible child may be claimed for a tax benefit, the parties shall alternate claiming the child on their tax returns, with the plaintiff claiming the child in even income tax years and the defendant in odd income tax years thereafter.
K. Liabilities
Except as noted above, the parties shall each retain and be responsible for the debts and liabilities listed on their respective financial affidavits as of the date of trial. The court enters no other orders concerning liabilities identified on their respective financial affidavits except that they shall be their own and shall hold each other harmless.
L. GAL Fees
In light of the financial orders made herein, the GAL fees shall be shared equally by the parties, who shall immediately make arrangements for the payment of these fees.
M. Counsel Fees
The parties shall be responsible for their respective counsel fees.
SO ORDERED,