Opinion
KNOFA114117488S
04-06-2016
Elizabeth M. Haynes v. Jean Philippe Poulard
Filed April 7, 2016
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MODIFY JUDGMENT AND CONTEMPT
Francis J. Foley, Judge Trial Referee.
On November 7, 2011, the plaintiff, Elizabeth Haynes, filed a motion in the Superior Court to resolve certain issues of custody and visitation, naming the defendant, Jean Philippe Poulard, as the father of two minor children. The children are a boy, Dorian, born November 5, 2006, and a girl, Rakia, born March 1, 2009. The parties were never married. For reasons later explained, the social history of the parties are largely unknown. On January 11, 2013, the court accepted certain " Proposed Orders" prepared by the parties counsel, and signed by them. There was no contested hearing on the merits of the case. The parties did attend the Parenting Education Program prior to the judgment. Judgment was entered on the " Proposed Orders."
Since the entry of the judgment in January 2013, the parties have filed numerous motions as follows:
November 13, 2013, the defendant filed a contempt citation.
November 22, 2013, the defendant filed a motion to modify the judgment.
December 3, 2013, the plaintiff filed a motion to modify the judgment.
January 14, 2016, the plaintiff filed a motion to modify the custody and visitation.
January 19, 2016 the defendant filed a contempt citation.
January 21, 2016, the defendant filed a motion to modify the judgment.
While there appear to be only six motions for contempt and modification, those items have appeared numerous times on the docket, necessitating court appearances and the matter has been ultimately referred to Family Relations for a mediation of the disputes. mediation was unsuccessful. The case has been assigned before Judges, Shluger, Nazzarro, Goodrow, Carbonneau, Connors and Diana.
On a short calendar day, March 31, 2016, the matter appeared before the undersigned. The parties disputes are principally focused on two particular issues: the plaintiff's desire to modify the custody to sole custody, to modify the shared parenting time to permit the eldest child to attend the Fisher's Island School, and the defendant's desire to modify the shared parenting to achieve a 50/50 division of time for each parent and to further expand his ability to control the children and their mother. While there are several unresolved contempt motions, the focus of the dispute is essentially related to those two issues.
Late in the afternoon on March 31, 2016, the parties appeared as self-represented parties at the Short Calendar and vigorously began to assert their claims. The court was not satisfied that the parties knew the complexity of their demands nor were they prepared to fully present the issues. The court instructed each of them to exchange all documents which they intended to offer, to determine what witnesses, if any, they wished to present, and to prepare a social history of themselves and their children so that the court would have some basis to make a proper decision. The court then assigned the case for the full day of the following Monday, April 4, 2016.
The parties appeared as directed at 10 A.M. The contested hearing lasted for two hours. Each party presented documents and testimony. The plaintiff testified on her own behalf and the defendant and his girlfriend testified on his behalf. Neither party provided a full sociological history, for instance, there is no information regarding their age, backgrounds, military service, education, or much about their life together. The bulk of the testimony was focused on their inability to communicate, the dysfunction of their parenting, and, sub rosa, their intense lack of respect of each other. The court had the opportunity to hear the testimony, review the documents and observe the parties and witnesses in the courtroom. " It is the judge in the courtroom who looks the witnesses in the eye, interprets their body language, listens to the inflections in their voices and otherwise assesses the subtleties that are not conveyed in the cold transcript." In re Davonta, 285 Conn. 483, 497, 940 A.2d 733 (2008).
In Daddio v. O'Bara, 97 Conn.App. 286, 292, 93, 904 A.2d 259, 263 (2006), the Supreme Court stated: " [T]he authority to render orders concerning custody and visitation is found in General Statutes § 46b-56, which provides in relevant part: (a) In any controversy before the Superior Court . . . the court may at any time make or modify any proper order regarding . . . custody and visitation . . . That section further provides that in modifying any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the child . . . General Statutes § 46b-56(b). [Our Supreme Court ] has limited the broad discretion given the trial court to modify custody orders under General Statutes § 46b-56 by requiring that modification of a custody award be based upon either a material change of circumstances which alters the court's finding of the best interests of the child . . . or a finding that the custody order sought to be modified was not based upon the best interests of the child . . ." 123 Kelly v. Kelly, 54 Conn.App. 50, 55-56, 732 A.2d 808 (1999); see also Hall v. Hall, 186 Conn. 118, 122, 439 A.2d 447 (1982); Bretherton v. Bretherton, 72 Conn.App. 528, 543, 805 A.2d 766 (2002). This court finds that both situations apply to this case. The existing orders are inconsistent with the best interests of the children.
The plaintiff testified that she resides in New London with her two children and her parents in the home of her parents, the maternal grandparents. Dorian is now nine years of age and in the fourth grade at the New London Magnet School. Rakia is now seven and in the first grade at the same school. The mother testified that since the separation of the parents, she has attended a technical school where she qualified as a dental technician. She is now employed in that capacity at a dental practice in nearby Westerly, R.I.
From the birth of Dorian in November 2006, it is safe to conclude that the parties were living together in early 2006, although neither party testified to that fact. Biology assists the court in that determination. Ms. Haynes testified that she and Jean Philippe suffered a very tumultuous relationship due to his uncontrolled anger and alcoholic abuse. She says he has smashed her car windows, been arrested many times, been through anger management, and " has numerous DUI's."
From the criminal records that were offered (Plaintiff's Exhibit 4). Jean Philippe Poulard was born in 1984. He is thus approximately thirty-two years of age. At or about the time that Ms. Haynes became pregnant with Dorion, Jean Philippe was arrested on March 17, 2006, for breach of peace and later for failure to appear in court. He received sentences of 6 months, execution suspended with two years of probation on the breach of peace and a second sentence of 1 year execution suspended with two years probation on the failure to appear.
On July 5, 2006 he was arrested for criminal trespass and subsequently, received a sentence of six months incarceration, execution suspended with two years of probation.
On June 16, 2007, he was arrested for Operating Under the Influence and was later sentenced to 30 days in jail, execution suspended, with two years probation.
On November 17, 2007, he was again arrested for Operating Under the Influence and sentenced to 30 days in jail, execution suspended, with eighteen months probation.
This was likely his third arrest, since first offenders usually avoid a criminal conviction by participation in the Alcohol Education Program.
On April 4, 2010, Jean Philippe was again arrested for breach of peace and violation of probation for which he was sentenced to six months execution suspended with one year probation. He was ordered continued on his prior probation.
On July 20, 2013, Jean Philippe was again arrested for breach of peace for which he was sentenced to 90 days in jail, execution suspended, conditional discharge in one year. This offense is the only offense that occurred after the parties had separated.
Jean Philippe Poulard was allowed to put into evidence Defendant's Exhibit A, which is his personal typed statement from which he used to testify. So it is that this exhibit and his testimony are virtually identical. In this document he describes the basis for his motions. The first of Jean Philippe's motions (not docketed) is for additional time with the children, i.e. 50/50, a rectification of the earlier court orders to spell out and grant more holidays to him, and during his testimony he further asserts that he wants the prior orders modified so that the mother no longer has the final say in dispute resolution. He wants the court to eliminate that provision allowing Elizabeth to make the final decision and to order that neither person shall have final say in the event of a dispute. He states flatly, that in the event they come to an impasse, the court can decide, as if the court is the appropriate place for the two of them to resolve even the most petty of differences of opinion.
The " Proposed Orders" document provides, inter alia, " . . . if they reach an impasse, then Mother shall have the final decision."
His motion or citation for contempt goes hand in hand with his motion for modification. He states Ms. Haynes is not following the court order with regard to " us having joint custody, refuses to include me in decisions and " she does not seem to understand or attempt to use her final say powers correctly."
Both parties seemed to believe that all motions previously filed, but unresolved, were properly before the court. The court listened patiently.
Jean Philippe further states: " [T]here have been several changes in my own, the children's, and the Mothers circumstances that have led me to request the modification of the extra parenting time with my children since the last court hearing." He thereafter asserts facts regarding his employment, his work schedule and current living circumstances. He further states that he finds the Mother's schedule " to be going in the other direction." She works too much and her hours are inconsistent.
Jean Philippe now resides with a woman he describes as his fiancee, Nicole Wollschleager. They have been living together for about three years (no date for marriage was ever mentioned). They both reside in a home in Ivoryton, CT. The home is owned and occupied by Nicole's parents. Also living in the home are Nicole's adult brother, and two children of Jean Philippe and Nicole, two year old Ella and one year old Kaiya. Jean Philippe works as a truck driver for an Essex provision company. His hours are that he leaves for work at 3:30 or 4:00 AM and returns home around 3:30 in the afternoon. Thus when the children are with him overnight, he is not available to assist the children preparing for school in the morning, feeding them and seeing them off to school. His girlfriend attends to them and must drive them to school in New London. Jean Philippe sees his present schedule as a great benefit as it allows him to be with the children when they return from school. He is critical of Elizabeth who has more conventional working hours and that she and her parents run a board and breakfast (B& B) from the family home on week-ends, which Jean Philippe sees as additional work that prevents Elizabeth from proper parenting. She " works in the house with my children . . ."
The only item that both parties each separately endorsed was that each agreed that they did not want to be in a room with the other. While Elizabeth spent most of her testimony directed to the benefits of attending the Fisher's Island school (hereinafter referred to as FIS), Jean Philippe spent his time critically testifying as to Elizabeth and her parenting skills and outlining the wisdom of increasing his holiday, vacation and week-day visitation.
Jean Philippe was critical of Elizabeth's decision to enroll Rakia in an after school ballet class, during her time, on Tuesday and Thursday. This did not diminish the time with Jean Philippe. He is distressed because he was not asked to advise and consent.
Whether this was appropriate or not, it was the mother's decision to make, and as appears to be entirely typical, that Jean Philippe disapproved and told her so. Jean Philippe's manner of expressing his disapproval is seen in an exhibit he offered into evidence. (Defendant's Exhibit B.)
This document appears to be a partial and incomplete transcript of e-mail messages that occurred on Wednesday, March 9, 2016, between the hours of 4:19 P.M. and 7:45 P.M. Jean Philippe sent twenty-five (25) e-mail messages to Elizabeth (" Bessie") mostly berating her for enrolling the children in ballet and attempting to assert his control over any decisions regarding the children. It is a clear example of the dysfunction that exists and a struggle for power over any daily decision made without his ability to provide the ultimate consent.
Jean Philippe is critical of the way Elizabeth manages the children's homework. " When they do manage to get their homework done, it is often done poorly, incorrect (sic), or incomplete (sic) and creates an inconsistent and confusing schedule for the children." (Defendant's Exhibit A.) By that he means that Elizabeth doesn't address the homework in the same way as he and his girlfriend do when the children are spending overnight visits on Wednesday with him and his girlfriend. The court agrees that this may be confusing to the children and may not be in their best interests.
Jean Philippe is critical of Elizabeth for taking Rakia " to a dentist in Rhode Island" and changing dentists without his prior consent. Elizabeth explained that Rakia had a toothache and she took her in to mother's place of work with the dentists with whom she works. Jean Philippe says she took them to Rhode Island as if it is some distant place. It is likely that Westerly, R.I. is closer to New London than is Ivoryton CT. He testified that " she went to Rhode Island with my daughter. She gave me only two days notice. That is not enough for me." He also testified that " . . . she signed my daughter up for a Spanish class, an after school program, without my knowledge."
Jean Philippe does not recognize that he and Elizabeth never married and they have been separated for nearly five years. He insinuates himself into every aspect of her daily life. It appears that without exception he disapproves of whatever she does. They do not listen to each other. Mostly it is Jean Philippe asserting himself. Following his testimony to the court, on cross examination of Jean Philippe by Elizabeth, she asked him " how many places have you lived in the past five years?" His non-responsive answer: " I have lived with my fiancee for the past two years." Yet he blames all the miscommunication on Elizabeth. He always refers to the children as his children or my children, never as their children. A small, but revealing, item. His e-mail communications with Elizabeth, under some circumstances, appears to amount to cyber-stalking. Wearing her down with his messages.
And, his monumental disapproval of her is suffocating. Answering a question by Elizabeth on cross-examination he answers " no, I do not believe that you have provided good medical care for the children."
The court finds that Elizabeth is the single parent of two children. The court is aware of the burdens of single parenting, organizing children's activities, maintaining a home, trying to find the right balance between sports, activities, free-time spent on games and internet, homework, and care and coverage for the children when they are sick, or the parent is compelled to work overtime, just to name a few of the responsibilities. Constantly dealing with a disapproving, intrusive, undermining co-parent significantly increases the burden of single parenting. An overwhelmed, working mother constantly negotiating with a controlling and manipulative co-parent cannot be in the children's best interest.
Given the present dysfunctional situation, the children are progressing remarkably well. Dorian is reading and writing at grade level and needs improvement in his mathematics. He has problems with his attention span and often needs re-direction. Dorian works best in small groups according to his fourth grade teacher. (Plaintiff's Exhibit 3.) His present teacher believes that Dorian would benefit from smaller classes that a public school cannot provide. " Dorian would benefit from a smaller classroom setting where more direct attention could be spent on him and his work. Dorian would be much more capable of thriving with fewer distractions within a class and also with more direct adult support." (Exhibit 3.) There was no data provided on Rakia's school progress.
To remedy this problem for Dorian, Elizabeth has found an educational institution that is available from New London. It is the Fisher's Island School, a State of New York public school that opens its doors to out of state students in order to compliment the small number of resident students from Fisher's Island itself. Jean Philippe is unalterably opposed to this school, or at least to this decision proposed by Elizabeth. Recall that, under Jean Philippe's proposal to modify the judgment, if approved by the court, neither he nor Elizabeth would have final decision making authority. If they could not agree, and they do not, it would then fall upon this court to make the decision.
Elizabeth testified that FIS is a phenomenal school with no more than 12 children per class and school-wide enrichment classes. She testified that per pupil expenditure for each child at the FIS is $50,000. In the Essex (Centerbrook) school, which Jean Philippe proposes, the per pupil expenditure is $15,000 per pupil. Elizabeth testified that the tuition for Connecticut residents at FIS is $3,500 plus $1,500 for transportation on the New London ferry. She testified that Dorian has visited the school, written an essay required for admission and has been accepted for admission. Elizabeth is willing to accept and pay the entire expense of Dorian attending this school.
A recently retired educator familiar with Dorian's present school and with FIS, has written a letter (Plaintiff's Exhibit 1) describes this as an " amazing opportunity for Dorian." " As an educator, school administrator and grandparent of a present lower elementary student who looks forward to his hopefully attending Fisher's Island School, I fully support Bessie's decision to have him attend."
Another, even more articulate letter in support of Dorian's attendance at FIS, was written by a professor from the University of Connecticut who actually sends her own son and daughter to the school. She and her family live near Elizabeth in New London. (Plaintiff's Exhibit 2.) This letter addresses the benefits of the school, the issues that prospective parents and students have with respect to the ferry ride and the " valuable down time" provided by the ferry. Elizabeth testified that children from Stonington, Mystic and New London attend the school.
Based upon the testimony of the parents and the documentary evidence provided, the court concludes, and agrees with Jean Philippe, that the circumstances have changed since the orders adopting the " Proposed Orders" occurred three years ago. The court further finds that Elizabeth and Jean Philippe have been unable, for a significant amount of time, to work together collaboratively with respect to the children. The parties do not share common values and Jean Philippe does not support nor respect the parenting of Elizabeth. The joint legal custody provisions in the judgment do not work for these parents and the visitation provisions of the existing order would preclude Elizabeth from sending Dorian to the FIS.
The father during his testimony was possessive, intense, overbearing, disapproving and controlling. While he believes he is acting in the best interests of the children, the court is satisfied that his principle interests are in controlling the lives of others. Joint legal custody requires a level of cooperation and civility that is not present in this case. Daddio v. O'Bara, 97 Conn.App. 286, 904 A.2d 259 (2006).
In Emerick v. Emerick, 5 Conn.App. 649, 656-57, 502 A.2d 933 (1985), cert. dismissed, 200 Conn. 804, 510 A.2d 192 (1986), " we . . . explained that [t]he difference between a sole custodian and a joint legal custodian is that the sole custodian has the ultimate authority to make all decisions regarding a child's welfare, such as education, religious instruction and medical care whereas a joint legal custodian shares the responsibility for those decisions." (Internal quotation marks omitted.) Sweeney v. Sweeney, 75 Conn.App. 279, 285, 815 A.2d 287-86 (2003), rev'd on other grounds, 271 Conn. 193, 856 A.2d 997 (2004); see also Zitnay v. Zitnay, 90 Conn.App. 71, 77, 875 A.2d 583, cert. denied, 276 Conn. 918, 888 A.2d 90 (2005).
ORDER
Accordingly, the Judgment of January 11, 2013, is modified as follows. The Motion for Modification #132, is granted. Sole legal custody of the children is awarded to the children's mother, Elizabeth. She shall have the ultimate authority to make all decisions regarding the children's welfare, such as education, religious instruction and medical care. This court does not decide where the children shall go to school. That decision is to be made by the children's sole custodian.
The defendant father shall have visitation with the children on alternate weekends from Saturday at 9:00 A.M. until Sunday at 4:00 P.M. In the event that the father's normal weekend is also a Monday holiday, he shall return the children on the Monday holiday at 4:00 P.M. Those holiday weekends are Martin Luther King Day, Washington's Birthday, Memorial Day, Labor Day, and Columbus Day. The Father shall have visitation on Thanksgiving Day 2016, Easter Sunday 2017, the fourth of July 2016, and alternate those holidays in years thereafter. He shall have visitation on the day before Christmas in 2016 and on Christmas Day in 2017 and alternately thereafter. Visitation shall be from 10:00 A.M. until 6:00 P.M. on each holiday.
The father shall pick the children up and deliver them home to the mother upon the conclusion of that visit. The defendant shall provide proof of a valid motor vehicle license and insurance for the motor vehicle. Any subsequent arrest of Jean Philippe for driving while intoxicated, or any similar arrest of any kind reflecting substance abuse shall result in an immediate suspension of this order by operation of law. He shall thereafter be permitted only supervised visits on alternating Saturday and Sunday for four hours per visit pending further order of the court. The supervisor shall be by a person or agency approved by the custodial parent or the court.
The father shall have visitation with the children for the month of July, in even numbered years, and for the month of August, in odd numbered years. All visitation shall be subject to change upon the written agreement of the parties. Visitation shall be adjusted to avoid conflict with the children's school activities. To the extent that visitation does not conflict with school activities or events, the father shall have the right to alternate winter and spring school vacations. The vacation period shall commence on the day following the last day of school at 10:00 A.M. and the children shall be returned twenty-four hours before the commencement of school activity.
The children shall be permitted to call the other parent whenever they wish. If the custodial parent wishes to relocate outside the State of Connecticut, she shall provide the father with 90 days notice of her intention to do so. The father shall cooperate with the mother regarding attendance at religious instruction and insure the children's attendance.
The provisions of the original order of January 11, 2013 that relate to child support, post majority support and college, pursuant to General Statutes § 46b-56c, life insurance, medical insurance and medical expenses, remain as ordered and are not affected by this modification.
In so far as there are any unaddressed motions or citations for contempt, they are resolved by this order without the necessity of further action. The issue of Jean Philippe's $10,834.31 arrearage of child support as of March 24, 2012, should be resolved through action of the Child Support Enforcement in case KNO FA10 415250S.
Judgment shall enter accordingly,