Opinion
No. FA 07-4024647 S
April 21, 2008
MEMORANDUM OF DECISION
This action seeks the dissolution of the parties' ten-year marriage. The action was commenced by complaint dated February 20, 2007, and returnable to the court on March 20, 2007. The parties appeared at trial on February 25, 2008; the plaintiff was represented by counsel, while the defendant was self-represented. Also appearing at trial was the guardian ad litem for the two minor children. The court heard evidence from the parties as well as from three other witnesses, and received into evidence twenty-one (21) exhibits offered by the plaintiff, and one (1) exhibit identified as "Court's Exhibit." The defendant offered no exhibits. All of the evidence presented was considered by the court, as were the provisions of General Statutes §§ 46b-56, 46b-56a, 46b-56c, 46b-56d, 46b-62, 46b-81, 46b-82, 46b-84, and 46b-215a, as well as the provisions of the Child Support Guidelines.
At the conclusion of the trial, the court ordered the defendant to provide additional financial information regarding a possible bonus from his employer as well as information regarding any 401k, savings incentive plan, or other benefit. The defendant provided a document to the court on March 10, 2008, and the court marked it as Court's Exhibit 1.
The court inquired several times of the defendant whether he wished to offer any further evidence or testimony to support his position, and he declined. He had a very limited cross-examination of the plaintiff.
I FINDINGS OF FACT A. Jurisdictional Findings
The court finds that it has jurisdiction over the marriage, that the allegations of the complaint are proven and are true. They have two minor children, Camille, born April 15, 2005, and Celine, born February 18, 2000. The marriage between the parties has broken down irretrievably. One party has resided in Connecticut continually for more than one year before bringing of this action. Neither parties have been recipients of state or municipal assistance.
B. Findings of Fact
The parties were married on July 27, 1997, in Buffalo, New York. The plaintiff, originally from France, is thirty-three years old and presumably in good health. She came to the United States to complete an internship at a hospital in Buffalo, New York, where she met the defendant, then a medical student. She has degrees in pharmacology from the University of Lisle, as well as the University of Strasbourg, and obtained a doctorate in pharmacy from the University of Buffalo in 1999. Her particular area of speciality is HIV/AIDS research, and has had faculty appointments at Massachusetts College of Pharmacy, as well as lecturing at various medical and dental schools. In addition to her lecturing and teaching, she has also written extensively in her field of expertise. (Plaintiff's Exh. 1.)
When the defendant obtained his residency at Massachusetts General Hospital in Boston in 2000, the couple moved to Boston. The plaintiff obtained a job at the New England Medical Center which is affiliated with Tufts University. She later left that job to work at Boston Medical Center, at the Center for HIV/AIDS Care and Research, and was receiving an income of approximately $92,000. After she relocated to Connecticut, at the request of the director for the Center for HIV/AIDS research, Dr. Paul Skolnick, she transitioned to a per diem position "to help with the many programs that she . . . created and participated in at [Boston Medical Center]." (Deposition of Dr. Skolnick, Plaintiff's Exh. 14, p. 8-9.)
The defendant is forty-three years old and also presumably in good health. The court was not presented with much background for the defendant, however, he did attend East Carolina University as a medical student before his medical internship in Buffalo, New York.
In addition to completing his residency at Mass General, the defendant also enrolled in a masters program at a neighboring university, but because the hospital was not aware of this outside involvement, his salary was cut in half, and he lost the family's medical benefits. Upon completion of his residency, he was unable to secure employment in Massachusetts, and in 2004 he took a job with Bayer, in West Haven, Connecticut. The family did move to Connecticut in 2005, in large part because the defendant was in danger of losing his relocation package benefits. The plaintiff was not overly enthusiastic about the move; they owned a house in the Boston area, one of their daughters was enrolled in a French American school, and the plaintiff was professionally fulfilled in her job in her area of expertise. Believing she needed to be a supporting wife and because the defendant said he would stop any financial support, she felt she had no choice but to move to Connecticut. She enrolled in a class at Yale, and initially the idea was for her to go back to school. But after several months, the plaintiff felt insecure with the idea of being financially dependent on the defendant, so the plaintiff found a job close to her home in Wallingford with Bristol Meyers Squibb as a drug safety scientist in oncology. This is not in her area of interest or expertise, and her job consists of writing reports about adverse events regarding specific drugs. It is not a professionally fulfilling job, and the future is grim as Bristol Meyers is projecting to lay off approximately 3,500 people in 2008 as they are outsourcing the jobs to people in India.
The plaintiff's current gross yearly income for her full-time position with Bristol Myers Squibb is approximately $118,000, which results in a net weekly salary of $1,264. Her financial affidavit also indicates a net weekly income from her per diem position with Boston Medical Center of $89, which gives her a total net weekly income of $1,353.
Her financial affidavit showed a deduction of $114.78 for a 401k plan which the court added back into her weekly net income.
The defendant worked at Bayer until his termination in January 2007. The plaintiff testified that after she came to Connecticut, she began to notice the defendant drinking alcohol more and talking about issues he was having at work with his supervisor of a racial nature. There were projects which were not turned in on time, but the defendant complained that his co-workers and supervisors were not being fair to him. After his termination, he was unemployed until August 2007, when he began his employment with Boehringer Ingelheim, located in Ridgefield, Connecticut. His financial affidavit indicates a gross yearly salary of $185,000, which results in a net weekly salary of approximately $2,446.
At trial, the defendant testified that he was earning $185,000 gross yearly salary and based his financial statement on that amount. The defendant provided the court with a copy of a pay stub from the pay period 2/11/08 to 2/24/08. (Court's Exh. 1.)
At the conclusion of the trial, and after hearing that the defendant may be entitled to a bonus of some type, the court ordered the defendant to provide to the court and to the plaintiff's counsel by March 10, 2008, a letter from his employer on company letterhead indicating how the bonus was determined, whether he would be entitled to one, and when he could expect the payment. The court also ordered the defendant to provide a statement indicating whether he had a 401k plan with his employer and the amount contained therein. On March 6, 2008, the defendant provided to the court a pay stub and an unsigned letter, not written on company letterhead, which indicated he would be receiving a pay increase to $191,475 effective March 1, 2008. The letter also indicated that he would be receiving a bonus of $20,960.50. The defendant did not provide any statement as to any 401k or other benefit package. However, in examining the pay stub, it shows a 401k pre-tax payment of $355.77 for the pay period and a total year-to-date of $1,778.85.
The document indicates a "VPR payment." The court assumes this is a bonus of some sort, but is unfamiliar with the acronym "VPR."
On March 10, 2008, the plaintiff filed a Motion to Hold Defendant in Contempt, which the court heard on April 10, 2008. The motion asked the court to find the defendant in contempt for his failure to comply with the court's order requiring that he provide a letter regarding the bonus and a statement indicating the balance of any 401k plan. The plaintiff argued that the letter provided by the defendant was not in the form ordered by the court as it was not on company letterhead, nor was it signed, and therefore, the source and accuracy of the information are unknown. Further, the date of the payment of the bonus is not specified. Also, there was no statement provided as to the balance of any 401k plan, although the pay stub provided by the defendant clearly indicated a deduction for a pre-tax contribution to a 401k plan for the period shown as well as a year-to-date contribution amount. The court held a hearing on the motion and took testimony from the defendant, who indicated he was not able to comply with the court's order as it was not possible for him to obtain such information, and he did not know how to obtain it. The court did not believe that Dr. Harris could not comply with the court's request. The court then gave him an additional time period, until April 14, 2008, to forward the information to the court by facsimile and warned him that if he failed to comply, the court could draw a negative inference from his non-compliance and would base its decision on the evidence presented to the court. As of the date of this memorandum, the court has not been provided with the information as ordered. The plaintiff's counsel urged the court to look at the defendant's financial information with a "jaundiced eye."
It was once believed persons suffering from the medical condition jaundice saw everything as yellow. By extension, the jaundiced eye came to mean a prejudiced view, usually rather negative or critical. www.wikipedia.org
The court finds the defendant's yearly gross salary to be $212,435, which is a combination of his annual base salary of $191,475 and a VPR payment of $20,960.50. This results in a net weekly salary of $2,778.
The court reached the net figure by calculating the deductions based upon his pay stub and using the same percentage deductions.
The defendant has made a claim against his previous employer, Bayer, alleging discrimination, harassment and retaliation, allegedly because he reported to the Federal Drug Administration the company's withholding of safety data on various medications. He has filed a complaint with the Commission on Human Rights and Opportunities, seeking compensation from Bayer. His initial claim of $55 million has been increased to $75 million. Depositions have been taken, and a report will be issued, and although he does not yet have legal representation, he intends to file a lawsuit if he does not receive satisfaction at this stage. The plaintiff is seeking one-half of any sum the defendant receives based on these claims.
The question for the court to decide is whether an unliquidated claim such as this may be the subject of an award pursuant to General Statutes § 46b-81. "The distribution of assets in a dissolution action is governed by § 46b-81, which provides in pertinent part that a trial court may `assign to either the husband or the wife all or any part of the estate of the other . . . 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 . . . shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . 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 estate' . . . This approach to property division is commonly referred to as an `all-property' equitable distribution scheme. See 3 Family Law and Practice (A. Rutkin ed., 1995) § 37.01[2][a][v], p. 37-19. [Section 46b-81] does not limit, either by timing or method of acquisition or by source of funds, the property subject to a trial court's broad allocative power. A. Rutkin, E. Effron K. Hogan, 7 Connecticut Practice Series: Family Law and Practice with Forms (1991) § 27.1, pp. 398-400." Krafick v. Krafick, 234 Conn. 783, 792, 663 A.2d 365 (1995).
Is this claim a present asset even though the value is unliquidated, or is it in the nature of some nonvested expectancy for which the court must make a separate determination as to the probability that it will be received by the party before it can be divided? In our law, a chose in action is defined as "[t]he right to bring an action to recover a debt, money, or thing," Black's Law Dictionary (7th Ed. 1999), that is, a present legally existing enforceable right, and it is immediate even though the value to be realized is undetermined or in fact, may not even be determinable.
The issue of whether an unliquidated personal injury claim or action may be the subject of an award pursuant to General Statutes § 46b-81 has not been resolved by our appellate courts. Lopiano v. Lopiano, 247 Conn. 356, 752 A.2d 1000 (1998) (where the court held that a personal injury award, received as compensation for, among other things, the plaintiff's pain and suffering and post-dissolution lost wages, is property available, in its entirety, for equitable distribution pursuant to § 46b-81, reasoning that the judgment in the personal injury case represented at the time of the dissolution a presently existing property interest). "We recognize that this case does not raise, and therefore, we do not answer, the question of whether an inchoate personal injury claim (one that is not a present interest, but which may ripen) is property under § 46b-81." "Allowing trial courts to be resourceful has been held preferable to providing an injured spouse an incentive to postpone settlement of a personal injury action until after the dissolution." Id., at 371-72, fn. 8.
In one of the three dissents, Justice Norcott stated, "I believe, however, that this case does raise the issue of whether an inchoate personal injury claim is property under § 46b-81, and that the majority answers that question in the affirmative . . . although the majority does not admit it is doing so." Id., 391.
In Raccio v. Raccio, 41 Conn.Sup. 115, 556 A.2d 639 (1987), the trial court addressed the issue of whether an unliquidated personal injury action may be the subject of an award pursuant to General Statutes § 46b-81 and found "[T]hough its value is undetermined (and it may prove to have none), a personal injury action does constitute a `presently existing interest'" and therefore "an unliquidated personal injury action is subject to an award pursuant to § 46b-81 . . ." Id., 122.
The court is aware that another superior court case reaches a different conclusion. Gaines v. Gaines, Conn.Sup.Ct., J.D. of New Haven at Meriden, FA 03-0286244, May 2, 2005.
The unliquidated claim is distinguishable from other categories which our appellate courts have said are divisible not because they are a present legally enforceable right, but because they are an expectancy with such a high probability of realization by a spouse that to leave them undivided would be inequitable. Bender v. Bender, 258 Conn. 733, 785 A.2d 197 (2001). In Bender, the issue before the court was whether unvested pension benefits are property subject to equitable distribution. The court did not change those interests or rights that were considered to be property, but provided the court with the analysis to determine another category of interest subject to distribution. "We disagree with the dissent that we have, by this analysis, overruled our prior cases defining property for purposes of our equitable distribution statute. We have, instead, built upon their foundation. Where we and the dissent part company is over the appropriate reading of our prior jurisprudence. We acknowledge, as we have repeatedly done herein, that in some cases we have determined that certain interest constituted property where there were enforceable contract rights therein, while in others we have determined that certain interests were too speculative to constitute property where there were no such rights. We do not read those cases, however, as the dissent does, to mark out a hard and fast line requiring such rights as the sine qua non of `property' under § 46b-81." Id., 753.
Because a chose in action represents a present existing legally enforceable right, and not of a more speculative nature, such as an unvested pension, or unvested rights to future compensation, or rights to future compensation that are accruing but not yet vested, the court is not required to do an " . . . assessment . . . of the likelihood of the person's receiving the assets claimed by . . . [the] spouse" as stated in Czarzasty v. Czarzasty, 101 Conn.App. 583, 594, 922 A.2d 272 (2007).
Admittedly, the question of liability and measure of damages is speculative, however, the claim itself — a chose in action — is a present legally enforceable right divisible under § 46b-81. While this claim is related to the defendant's employment, it would be inequitable if the plaintiff did not participate at all in any recovery. She made substantial sacrifices related to his employment in Connecticut with Bayer; she relocated, interrupted her career and her children's education, will most probably incur losses related to the purchase of the house in North Haven, and was required to support the entire family while he was unemployed after his claimed wrongful termination.
When the couple relocated to Massachusetts, they initially were living in a rental property. Due to the increases in the rent, they decided to purchase a house in September 2001, in Woburn, Massachusetts. Most of the funds used to purchase the home came from the plaintiff's parents. (Plaintiff's Exh. 3.) When the decision was made to relocate the family to Connecticut, the parties purchased a house located at 2121 Whitney Avenue, North Haven for $453,500, with a mortgage of $359,600. Each contributed $5,000 towards the $10,000 down payment, and because they still owned the house in Massachusetts, they took out a second mortgage in the amount of $43,350. The house in Woburn finally sold in 2006, and the net proceeds were used to pay off the second mortgage then in the amount of $45,668 and the balance used to pay off one of the defendant's student loans in the amount of $12,470. There was no appraisal done of the North Haven property in order to furnish the court with a fair market value. The plaintiff testified that she called a few real estate agents who gave her a range of what the property was worth and the midpoint figure is $410,000. The defendant testified that he, too, contacted a realtor who gave a value of $463,000. In reviewing the financial affidavits previously submitted in September 2007, the plaintiff had indicated a value of $475,000. The court will fix a value of the property at an average of the high and low values of $442,500, and equity of approximately $95,000.
The plaintiff received a total of $26,550 from her parents.
Although the defendant testified that he performed extensive work to the property and contributed a significant amount of funds towards the related expenses, the court was not furnished with any specific credible evidence.
Besides the marital property, the plaintiff has two deferred compensation plans, one with TIAA CREF in the amount of approximately $24,000 and one with Fidelity in the approximate amount of $12,300, both of which accrued during the marriage. The defendant shows no deferred compensation plans or other significant assets on his financial affidavit, although after examination of his pay stub which he submitted to the court, it appears he does have some type of deferred compensation benefit through his current employer, but the court was provided with no statement as ordered. Based upon the pay stub provided to the court which indicated a deduction of $355.77 per pay period, the court calculates the balance in the 401k plan to be approximately $6,048. Each party indicates an ownership of a life insurance policy on their financial affidavits.
The defendant began his employment in August 2007. The court calculates approximately 17 pay periods between the end of August and the date of this memorandum.
There are two minor children, Celine and Camille, and the plaintiff is seeking sole custody. The current orders are joint legal custody, primary residence with the plaintiff and access to the defendant on one overnight per week. She has been the primary caretaker of the children throughout the marriage, and particularly since the separation of the parties in June 2007, when the defendant moved out of the marital residence. She is very involved with their day to day activities and with their school, while the defendant has had no involvement with their school, and has never sought any longer periods of time of visitation, other than taking the children to a company picnic. The defendant lives a couple miles from the marital home, yet he did not visit for Christmas. From January 2007, to August 2007, when he was unemployed, the children were still enrolled in day care full-time as he did not want to take care of the children. If a child was sick, the day care or school called the plaintiff, and she would take part of the day off from work to take the child to the doctor.
He also requested to take the children out of state for Thanksgiving, which the plaintiff would not agree due to, according to her, safety concerns.
The guardian ad litem met with the children at both homes. The older child, Celine, said she didn't spend much time with her father, and she is accustomed to being with her mother at the marital home, which she considers her home. She also indicated that her father doesn't do things with her, and when they are at his home, he is frequently on the computer or watching television. The guardian ad litem also agreed that the defendant has not had much contact with Celine's school.
The problems in the marriage started to occur around 2003-2004, which is about the same time the defendant relocated to Connecticut. He was not involved with their first daughter and became less involved with the plaintiff as well. The plaintiff testified that his behavior was different, he was distant, and jealous; they had no social life or friends. When the plaintiff came to Connecticut, she was financially dependent on him, and she had to ask permission to use money from their account for food. She also noticed that he was drinking more, and he started having issues at work. In December 2006, she suspected he was using illicit drugs, and began to search the house for evidence, and found marijuana in his tool box. When she confronted him, he said it wasn't a big deal and "it didn't kill anyone to smoke a little weed." A couple months later, she found some kits in his desk drawer and a bottle of tablets with a website address of www.Ipassedmydrugtest.com, which sells cleansing products to pass drug tests. In March 2007, his behavior continued to be erratic; he had an idea that the house wasn't clean enough, took books off the shelves, emptied the freezer. During the pendency of this action, he was ordered to submit to a hair follicle drug test, and it was positive for marijuana. The defendant's use of illegal substances is a large concern for the plaintiff.
Initially the defendant objected to submission to the hair follicle test alleging that "numerous scientific studies have shown hair testing to be inaccurate and unreliable, and the procedure appears to give false positives disproportionately to African Americans." See Objection to motion for drug testing — pendente lite, #151.
In addition, the plaintiff testified that he has not treated her well in front of the children, calling her white trash, stupid French woman. She finds he denigrates women in general and has described her as a bad mother, too old fashioned and too strict.
The defendant does not deny that he has smoked marijuana, but states he has not used it for more than nine months. Frankly, he denies all of the plaintiff's allegations regarding his treatment of her and the children. He places blame on her parents becoming too involved in their marriage. In fact, he states he was "taking care of his children out of the goodness of his heart" when he was unemployed.
The plaintiff is requesting, as one of her claims for relief, that she be permitted to relocate to Massachusetts with the children. In order to decide this issue, the court must first determine the correct legal standard for the court to employ in determining a relocation issue at the time of a dissolution and a brief review of the law is necessary.
Prior to 1998, the standard to be applied by the court in determining custody in a relocation case was the best interest of the child, as set forth in the then General Statutes § 46b-56(b). Section 46b-56(b) provided in relevant part: "In making or modifying any order with respect to custody or visitation, the court shall (1) be guided by the best interest of the child . . ." See, also, Blake v. Blake, 207 Conn. 217, 541 A.2d 1201 (1988). In 1999, the Supreme Court decided Ireland v. Ireland, 246 Conn. 413, 717 A.2d 676 (1998), and adopted a burden-shifting scheme to evaluate the best interest of a child in determining postjudgment relocation matters. The Supreme Court held that "a custodial parent seeking permission to relocate bears the initial burden of demonstrating, by a preponderance of the evidence, that (1) the relocation is for a legitimate purpose, and (2) the proposed location is reasonable in light of that purpose. Once the custodial parent has made such a prima facie showing, the burden shifts to the noncustodial parent to prove, by a preponderance of the evidence, that the relocation would not be in the best interest of the child." Id. In order to determine the best interest of the child in a postjudgment relocation matter, the Supreme Court adopted the factors as enumerated in Tropea v. Tropea, 87 N.Y.2d, 727, 665 N.E.2d 145, 642 N.Y.S.2d 575 (1996). "These factors are: `[E]ach parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent, the degree to which the custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements.' . . . [Another relevant factor is] `the negative impact, if any, from continued or exacerbated hostility between the custodial and noncustodial parents, and the effect that the move may have on any extended family relationship.'" Ireland v. Ireland, supra, 246 Conn. 431-32, quoting Tropea v. Tropea, supra, 87 N.Y.2d 740-41.
In Blake, the court distinguished cases which dealt with the relocation custody issue at the time of dissolution and those which were seeking postjudgment relocation custody orders. The court rejected the argument that in seeking permission to relocate out of state at the time of the initial dissolution the burden rested on the party seeking to relocate. Id., p. 221.
In Ford v. Ford, 68 Conn.App. 173, 789 A.2d 1104 (2002), the Appellate Court found that the two-step burden shifting analysis in Ireland did not apply to relocation orders entered at the time of dissolution. The trial court was directed to make the determination based upon the best interests of the children standard but was also instructed to "consider" the Tropea factors set forth in Ireland.
In 2006, the General Assembly amended the General Statutes basically legislatively overruling Ireland and eliminating the burden shifting scheme and setting forth the standard to be followed in postjudgment cases. General Statutes § 46b-56d. Section 46b-56d(a) places the burden on the party advocating the relocation of demonstrating, by a preponderance of the evidence, not only that the relocation is for a legitimate purpose and is reasonable in light of that purpose, but also that the relocation is affirmatively in the best interest of the child. Section 46b-56d(b) further enumerates five specific factors which the court is now statutorily obligated to consider to determinating whether to grant a parent's request to relocate with a child, which factors mirror those set forth in Tropea and which the court in Ireland adopted. General Statutes § 46b-56d(b) reads:
(b) In determining whether to approve the relocation of the child under subsection (a) . . . the court shall consider, but such consideration shall not be limited to: (1) Each parent's reasons for seeking or opposing the relocation; (2) the quality of the relationship between the child and each parent; (3) the impact of the relocation on the quantity and the quality of the child's future contact with the non-relocating parent; (4) the degree to which the relocating parent's and the child's life may be enhanced economically, emotionally and educationally by the relocation; and (5) the feasibility of preserving the relationship between the non-relocating parent and the child through suitable visitation arrangements."
There are no appellate court cases which construe this new statute, however, by its terms it is limited to postjudgment relocation cases. The question now before the court is which is the appropriate standard to be applied, in light of the current case law and statutory scheme, in a relocation order to be entered at the time of the dissolution.
In 2005, the General Assembly also amended General Statutes § 46b-56 to provide that in making or modifying orders of custody, the court should consider sixteen recommended factors. Obviously many of these factors are applicable to this and most other relocation cases at the time of the original custody determination. In addition, Ford states that in a relocation case at the time of the dissolution, it is appropriate to also consider the Tropea factors, which have been codified under the new relocation statute. General Statutes § 46b-56d(b). These factors enumerated in the 2006 statute which, while on its face applies only postjudgment, should be appropriately considered by the court when making an initial custody order in accordance with Ford. The effect is that in making an initial final custody order including relocation, the trial court must consider the provisions of both § 46b-56 and § 46b-56d.
Those factors are: "(1) The temperament and developmental needs of the child; (2) the capacity and disposition of the parents to understand and meet the needs of the child; (3) any relevant and material information 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 which shall include compliance with any court orders; (7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parent's 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 environment . . . (11) the stability of the child's existing or proposed residences; (12) the mental and physical health of all individuals involved . . . (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 the parent and another individual or the child; (15) whether the child or a sibling of the child has been abused or neglected . . . and (16) whether the party satisfactorily completed participation in a parenting education program . . ."
The plaintiff testified that the reasons she wishes to relocate back to Massachusetts are two fold. First, she has been offered a full-time position in her area of expertise with Boston Medical Center, where she has been working per diem since her relocation to Connecticut. Her direct supervisor would again be Dr. Skolnick, and according to him, she would return to a newly created position entitled, HIV Pharmacotherapy Program Director. (Plaintiff's Exh. 14, p. 9.) She would be given a flexible schedule, with limited or no travel and a per annum salary of $121,663. (Plaintiff's Exh. 15.) Further, the promotion to this position would represent "a significant career advancement for the plaintiff, with numerous opportunities for further career advancement in academic endeavors, clinical services and administration." (Plaintiff's Exh. 15.) Because it is likely she will be losing her job in Connecticut due to lay-offs, cutbacks and outsourcing (see, Plaintiff's Exhs. 11 and 12), it is necessary for her to find other employment, even if she did not relocate. She has made inquiries to numerous companies (See, Plaintiff's Exh. 18), and it appears the only other opportunities would be for her in New Jersey.
The second major reason for her request to relocate to Massachusetts is she is very familiar with the area and the schools for her children. The oldest, Celine, had attended a French American school, which follows both curriculums, here in the United States and in France. The school is accredited by the Ministry of Education in France, and allows the children to have two degrees. Since the plaintiff is of French descent and her parents currently reside in France, it is important to her for the children to be fluent in French as well as English. The tuition for the school is quite expensive — $16,000 — and if allowed to relocate, she intends to apply for a grant through the French government for free tuition. If she is denied that request, she has researched a program in another town outside of Boston which affords a French emergent program through the school.
In considering the factors under General Statutes § 46b-56d, the plaintiff has valid reasons for seeking the move, in that it will enhance her life, and consequently the children's, economically and educationally. The defendant opposes the move, but gives no real reasons for his opposition. He has relatively little contact with the children, and has not sought greater contact, while the plaintiff has a strong bond with both of the children. There was no evidence to indicate that the relocation will significantly or negatively impact the relationship between the children and their father, as they are quite accustomed to going for long periods of time without having any contact with him. Furthermore, based upon the evidence presented, it would appear that the plaintiff's job will afford her flexibility to address the needs of the children. Although the plaintiff has grave concerns about the marijuana use by the defendant and has restricted his visitation based upon those concerns, there was no evidence to indicate that she will not facilitate or encourage a continued parent-child relationship between the children and the defendant. The move would be to a neighboring state, and both parties would be able to be easily choose a equidistance point of exchange for visitation.
In fact, the defendant has two other children, one an adult, and a second, Kenneth Rashawn Harris, d.o.b. 5/15/95. The plaintiff was aware of the first son, but did not find out about the second son until September 2007, while this case was pending and she learned the defendant was paying child support. When asked by the court about his relationship with this son, the defendant replied be had a "good relationship" and said he saw him twice a year and spoke to him about once a month.
The guardian ad litem testified regarding her opinion as to whether the plaintiff should be allowed to relocate. She visited with both parents and the children at their respective homes and had no concerns about either home. Expressly stating that she understands that relocation cases are the most difficult cases to handle due to the serious implications for both parties, she believes that the plaintiff should be allowed to relocate.
The plaintiff has no ties to Connecticut, and in fact neither does the defendant, other than his job, which is not even in the New Haven area. Historically she has been the primary caretaker of the children, and with the flexibility she will be afforded in her new position, will be able to continue to be actively involved in their lives and extracurricular activities. Most importantly, other than the question of the marijuana usage by the defendant, the plaintiff is willing and able to facilitate and encourage a continuing parent child relationship between the children and the defendant.
The court finds, applying the criteria recited above, that it is in the children's best interests to allow the plaintiff to relocate to Massachusetts with the children. Although the plaintiff is seeking sole custody, the court does not believe that the defendant will use his status as a co-custodial parent to manipulate the children or the plaintiff and hopes that by maintaining his status as custodial parent, he will be encouraged to stay connected with the children.
As is often the case, neither party is solely responsible for the breakdown of the marriage. Once the parties moved to Boston, the plaintiff became very content with her life there, both personally and professionally, for herself and the children. She did not appear to ever acclimate herself to life in Connecticut. Further, it is fairly apparent that the parties have significant differences in the way they approach life, and particularly their parenting styles.
II FURTHER FINDINGS AND ORDERS A. Dissolution of marriage
The marriage of the parties, having broken down irretrievably, is hereby dissolved, and they each hereby declared to be single and unmarried.
B. Relocation
The plaintiff shall be permitted to relocate to Massachusetts with the minor children at the end of the 2007-2008 school year in order for the plaintiff to accept the newly created position at Boston Medical Center of HIV Pharmacotherapy Director.
C. Custody and Access
The parties shall have joint legal custody of the minor children, Celine, d.o.b., 2/18/00, and Camille, d.o.b. 4/15/05, primary residence with the plaintiff and access to the defendant as follows:
1. One weekend per month from Friday evening until Sunday at 5:00 p.m. The defendant shall pick up the children in Massachusetts and return the children to Massachusetts one month and the following month the plaintiff shall bring the children to Connecticut and pick them up in Connecticut, or such other arrangement as the parties may mutually agree.
2. Every Thanksgiving holiday commencing the Wednesday before Thanksgiving to 4:00 p.m. on the Sunday following Thanksgiving.
3. Christmas day at 2 p.m. until December 31st in odd-numbered years and December 26 to December 31st in even-numbered years.
4. One school week vacation per year, from Saturday to the following Saturday, alternating between the February school week vacation in even-numbered years and the April school week vacation in odd-numbered years.
5. Two weeks vacation in summer, from mid-June until July 4th in even-numbered years, and mid-August to August 30th in odd-numbered years.
6. Any other times which are mutually agreeable to the parties.
Each of the parties shall keep the other reasonably informed at all times of the children's whereabouts, including the phone number at which the children can be reached. If either party plans any trip or vacation with the children for more than two (2) days' duration, which destination is out of Connecticut or Massachusetts, or out of the United States, that party shall notify the other of an itinerary of travel plans, including the duration of the trip and the address and hone number, airline flight numbers, if applicable, departure and arrival times and destination. This order contemplates the plaintiff taking the children to France so long as she complies with the above orders.
The plaintiff shall not relocate outside of the United States without notifying the defendant in writing at least six (6) months prior to her intention to do so.
E. Child support
Having granted the plaintiff's request to relocate to Massachusetts, the court finds that her gross weekly income will be $2,340 and her net weekly income to be $1,573. The court finds the defendant's gross weekly income to be $4,085 and his net weekly income to be $2,778. For purposes of calculating child support, the net income for the defendant is found to be $2,564, which take into account his child support obligation for his other son, not issue of this marriage. The combined net weekly income of the parties is in excess of the maximum Child Support Guidelines amount and the presumptive minimum basic child support is $636 per week and the defendant's share is $394". . . . [C]ourts remain free to fashion appropriate child support awards on a case-by-case basis where the combined income exceeds the range of the schedule, provided the amount of support prescribed at the $4,000 level is presumed to be the minimum that should be ordered in such cases." Preamble to Child Support and Arrearage Guidelines, (e)(6,), p. vi.
The court is using the net income from the Child Support Guideline worksheet prepared for the court by the office of family relations and attached hereto as Schedule A. [Editor's Note: Schedule A has not been reproduced herein.]
Commencing April 25, 2008, and weekly thereafter, the defendant shall pay to the plaintiff the sum of $450 as and for child support, until such time as the oldest child shall reach the age of eighteen years, or otherwise emancipated at which time child support for the remaining child shall be adjusted in accordance with the then existing Child Support Guidelines or as a court may otherwise direct.
The foregoing notwithstanding, if any child shall turn eighteen years old and is still in high school, then, in that event, the child support shall continue until the first day of the next month following graduation from high school or their nineteenth birthday, whichever shall sooner occur, pursuant to General Statutes § 46b-84(b).
The plaintiff shall be responsible for any private school tuition for the children unless otherwise agreed upon by the parties. The parties shall share equally in the cost of any extra-curricular activities. The defendant shall be responsible solely for any costs related to either child participating in tennis.
F. Alimony
Based upon the statutory factors, including the age, health, education, assets, income, and the opportunity of the plaintiff to acquire assets, a time-limited award of alimony is appropriate. Ippolito v. Ippolito, 28 Conn.App. 745, 612 A.2d 131, cert. denied, 224 Conn. 905, 615 A.2d 1047 (1992); Milbauer v. Milbauer, 54 Conn.App 304, 312-15, 733 A.2d 907 (1999). It will take the plaintiff some time to get back on her feet financially, due to her move from Massachusetts to Connecticut because of the defendant, and now her move back to Massachusetts. Further, the youngest child will by that date be enrolled in school full-time.
Commencing one week after the plaintiff vacates the marital residence at 2121 Whitney Avenue, North Haven, Connecticut, and weekly thereafter, the defendant shall pay to the plaintiff as and for periodic alimony, until the death of either party, the remarriage of the plaintiff cohabitation as defined by statute, or thirty months from the commencement of the alimony payment, whichever shall sooner occur, the sum of $500 per week, which amount and term shall be nonmodifiable, except for the foregoing reasons.
G. Medical Insurance
The parties shall maintain and pay for health insurance for each of the minor children as is available through their employers at a reasonable cost. Unreimbursed medical, dental, orthodontic, optical, pharmaceutical, psychiatric, and psychological expenses for the minor children shall be divided by the parties equally. The provisions of General Statutes § 46b-84(e) shall apply.
Each party shall be responsible for their own health insurance coverage.
H. Educational Support Orders
The court shall reserve jurisdiction to enter educational support orders for each of the minor children pursuant to General Statutes § 46b-56c.
I. Property Settlement Marital Residence.
The parties' jointly owned residence at 2121 Whitney Avenue, North Haven, shall be immediately placed on the market for sale with a listing agent acceptable to the parties. The parties shall mutually agree upon a listing price. The parties shall accept any offer within five (5) percent of the listing price. Every ninety days, the parties shall review the listing price of the property. If they are unable to agree upon a new price, then the previous listing price shall be reduced by five (5) percent. Both parties shall actively participate in the sale of the property with the intent of selling the property as quickly as possible.
The court shall retain jurisdiction over the terms and conditions of the sale.
To the extent that the relocation package available to the defendant from his employer is available to pay any expenses incurred in connection with the parties' sale of, and/or removal from 2121 Whitney Avenue, the defendant is ordered to utilize the relocation package to pay such expenses.
Upon the closing of 2121 Whitney Avenue, the sale proceeds shall be utilized to pay in full the following expenses not covered by the defendant's relocation package: all conveyance taxes, real estate sales commissions, legal fees for closing of sale, and other normal expenses incurred in connection with the sale, and the amount due to pay off the mortgage on said premises. After payment of these sums, the first $38,000 shall be paid to the plaintiff and the balance shall be divided equally between the parties.
Pending the earlier of the sale of 2121 Whitney Avenue or the plaintiff and the minor children vacating said premises, the plaintiff shall have the exclusive right to occupy said premises. During said time, the plaintiff shall be responsible for two-thirds of the payment of the principal and interest due on the mortgage on said premises, as well as the homeowner's insurance and the taxes, and the defendant shall be responsible for one-third of the total payment. The plaintiff shall be responsible for customary utility expenses of said premises, including the heating expenses.
All repair expenses of 2121 Whitney Avenue, shall be paid equally by the parties. If the plaintiff vacates the premises prior to the sale, the mortgage, utility payments and other expenses related to the upkeep of the property shall be equally paid by the parties. If the defendant moves into the property after the plaintiff vacates the premises, he shall be responsible for two-thirds of the payment of principal and interest on the mortgage, as well as the homeowner's insurance and taxes, and the defendant shall be responsible for one-third of said payment, until the house is sold.
J. Pensions, 401k accounts, Bank accounts
Each party shall retain any 401k accounts, pensions, bank accounts in their name. Specifically, the plaintiff shall retain her TIAA CREFF 403b account and Fidelity 401k account free and clear of any claim by the defendant. The defendant shall retain any 401k account which he may own in his own name, free and clear of any claim by the plaintiff.
Each party shall retain any checking accounts and savings accounts in their own name, free and clear of any claim by the other.
The plaintiff lists two ING accounts on her financial affidavits for the benefit of the minor children. She shall retain said accounts, free and clear of any claim by the defendant.
K. Life insurance
The defendant shall maintain his current life insurance policy in the amount of $250,000 for so long as there remains a child support or alimony obligation, and shall name the plaintiff as the primary, irrevocable beneficiary thereon. The defendant shall provide yearly verification on January 1 of each year that the insurance is in place, that the premiums are paid current and the beneficiary status.
L. Personal Property
The plaintiff shall retain the furniture, furnishings and contents of the parties' jointly owned residence at 2121 Whitney Avenue, North Haven.
M. Defendant's Claim Against Bayer
The plaintiff shall receive fifteen (15) percent of any net sum the defendant receives based on his claims of discrimination, improper termination, etc., against his former employee, Bayer. The defendant shall notify the plaintiff within ten (10) days of the receipt of any settlement by the defendant.
N. Debts
Except as otherwise provided herein, each party shall be responsible for the debts listed on their respective financial affidavits, and they shall indemnify and hold each other harmless from any further liability thereon.
O. Pendente Life Orders
On September 24, 2007, the court ordered the defendant to pay one-third of the mortgage, taxes, and homeowner's insurance due on the marital home. If defendant has not paid his one-third share of the tax payment due in February 2008, he shall make that payment along with any interest owed, and hold the plaintiff harmless from the same.
CT Page 6719
P. Tax Exemptions
The parties shall be entitled to claim a personal exemption for each of the minor children commencing with the tax year 2008. When there is only one child that qualifies for an exemption, they shall alternate the exemption, with the plaintiff taking the first year. The defendant must be current with any financial orders, including but not limited to child support, as of December 31st or he shall not be entitled to the exemption.Q. Counsel Fees and GAL Fees
Each party shall be responsible for their respective attorneys fees and costs incurred in connection with this action, except as noted below.
As of February 26, 2008, the parties incurred legal fees for the services of the guardian ad litem, Attorney Lynn A. Pellegrino, in the amount of $6,675.50, which fees the court finds to be fair and reasonable. On March 28, 2008, Attorney Pellegrino filed a Revised Affidavit of Attorneys Fees indicating an amount of $7,085. After credit of all retainers and payments previously paid, there remains a balance owing of $2,820. The parties shall each share equally in the payment of said balance and shall pay to Attorney Pellegrino the sum of $500 per month until their respective obligations are paid in full.
R. Motion for Contempt
The court finds the defendant in wilful violation of the court's order of February 26, 2008. The court finds the request for attorneys fees in the amount of $1,000 to be fair and reasonable. In considering the financial affidavits of the parties, the court orders the defendant to pay to the plaintiff's counsel $1,000 within thirty (30) days of this memorandum.
S. Restoration of Name
The plaintiff's name is restored to Helene Hardy.
T. Yontef Order
These orders are effective immediately and are not stayed for twenty (20) days. Yontef v. Yontef, 185 Conn. 275, 291-92, 440 A.2d 899 (1982). The custody/parenting schedule and relocation orders shall not be stayed and shall remain in effect if an appeal is taken pursuant to Conn. P.B. § 61-1(b). Id., 293-94.