Opinion
No. FA 09-4047570
August 22, 2011
MEMORANDUM OF DECISION
This action for dissolution was filed by the plaintiff, Joanna A. Linderman, on November 17, 2009. The plaintiff represented herself at the trial before the court on August 8, 2011. The defendant was represented by counsel at the trial, at which the primary issues in dispute were the history and schedule of access with the parties' two minor children and the plaintiff's desire to relocate to Fabius, NY. At the conclusion of the trial, all financial issues were resolved by agreement, except for the plaintiff's request for alimony in the amount of $150 per week.
The parties were married on May 4, 1997 in East Hartford. Krystopher T.J. Linderman was born one month before the marriage of the parties on April 2, 1997, but there is no question that he is issue of this union. In addition, Zachary C. Linderman was born issue of the marriage on April 2, 2006. No other children were born and the parties have primarily resided in the State of Connecticut for at least one year prior to bringing this action, thereby satisfying the jurisdictional requirements of the court.
The parties have received public assistance and the State of Connecticut is therefore a party to these proceedings. The state has recommended written orders concerning health care coverage for the minor children and $1.00 per year alimony for both parties, modifiable only by the State. The State's proposed orders are acceptable to the parties and the court, and are therefore incorporated by reference into the judgment.
Both parties were courteous to one another in court and they appeared to be reasonable and thoughtful individuals. However, their relationship has been marked by many instances of domestic violence, primarily initiated by the plaintiff. In addition, there have been two abuse and neglect investigations, conducted by the Department of Children and Families (DCF). The first involved an incident of domestic violence between the parties in the presence of the children. The second was for an incident between the plaintiff and the oldest child. The result of these referrals to DCF has been for the plaintiff to seek counseling at the Wheeler Clinic, along with her older child.
The plaintiff is articulate, forthright and highly focused. She is 35 years old and is in good physical health, but is being treated for anxiety and depression. She has made substantial progress toward an associate degree, which she hopes to complete in a field related to health care. She is a Pharmacy Technician at a CVS Pharmacy in Rocky Hill and is employed on a full-time basis. Her gross weekly income is $408.09, with a net weekly income of $380.78. From this amount, she pays $25 per month for taxes owed to the IRS. Based upon orders entered by the court, pendente lite, the minor children primarily reside with the plaintiff and she receives $150 per week in child support.
The plaintiff has moved with the children from the marital abode, which was leased in Hartford, to an apartment in New Britain. Her oldest child has been a successful student in Hartford and is looking forward to attending New Britain High School. The younger of the two children will be attending school for the first time in New Britain. Instead of continuing to live in New Britain, the plaintiff believes it would be in the best interest of the children to move with her to Fabius, NY, where her mother and stepfather own a home on six acres, with a three-acre organic herb farm. Fabius is a rural town, located one-half hour southeast of Syracuse. However, it is over four hours from the Hartford area, where the parties currently reside. Although the parties once lived in Fabius many years ago, the children regularly visit there with their maternal grandparents for lengthy stays with and, oftentimes, without the defendant's knowledge or advanced approval.
The plaintiff and her children are welcome to live at her family's home and pay $300 per month for expenses. Furthermore, the plaintiff has been approved by her employer for a lateral transfer to the CVS Pharmacy located in Manlius, NY, which is a short distance from the family home nearby in Fabius. Her hours of employment at the Manlius CVS, however, would be reduced, at least initially. She has also looked into the school system, which she believes is of high quality and would more than adequately meet the educational needs of the minor children.
The defendant is 36 years old and is a healthy high school graduate. He appears to be a reliable and hard working person. He works for Advanced Delivery Systems as a truck driver, delivering furniture for local retail businesses. Although he was an independent contractor previously with his own business, he is now a W-2 employee making gross weekly income of $508.11, with net income of $446.20. The defendant also admits to receiving cash tips of up to $80 per week. From these funds, he pays child support of $150 per week to the plaintiff and $58 per week for another child from a previous relationship. He also pays $25 per month for taxes owed to the IRS. Based upon these facts, substantial alimony is not realistic, despite the plaintiff's demonstrated need after this fourteen-year marriage.
The parties owned an independent delivery business, J P Trucking, LLC. However, this business was dissolved when their primary contract ended, resulting from the bankruptcy of Bernie's T.V. Appliance stores. Although the business records of J P Trucking, LLC, were the plaintiff's responsibility, the parties agree they are mutually responsible for the remaining debts of the business, primarily to the IRS.
The existing access orders of the court have been for the defendant to have visitation with the two children from 6:00 p.m. until 9:00 p.m. on Saturday and Sunday evenings. Soon after this order was entered, it became obsolete when the defendant's employment changed at the time the business was lost. This new employer required him to be on rotating shifts, with approximately three days advanced notice of his schedule. Generally, he works six days per week and, at the time of the trial, he had been required to work thirteen of the previous fourteen calendar days.
Paradoxically, the plaintiff concedes that it is of utmost importance for the defendant to maintain his employment at this time, but she has been historically inflexible in allowing the defendant access to their children, based upon his new schedule. Moreover, she has sent one or both the children to Fabius for weeks and, on occasion with their youngest child, for months at a time. These unilateral decisions by the plaintiff have completely foreclosed the defendant's access to his children, absent a nine-hour round trip to Fabius on his one day off per week.
In her interactions with the defendant, the court finds many instances of unilateral decision-making, particularly regarding the children, resulting in the defendant not seeing them on a regular basis. Yet in court, the plaintiff also showed an open-minded curiosity over facts presented that were inconsistent with facts she assumed in making these unilateral decisions. To the court, this indicates a willingness to be more flexible and cooperative with the defendant over the issue of future access.
II DISCUSSION AND ORDERS A. Dissolution
After reviewing the evidence and evaluating the testimony of the parties, 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, which are accepted and incorporated by reference into the judgment. Based upon these findings, the marriage of the parties is ordered dissolved effective this date of judgment.
B. Custody, Access and Relocation 1. Custody
By agreement of the parties, they shall have joint legal custody of the two minor children, Krystopher T.J. Linderman, born on April 2, 1997, and Zachary C. Linderman, born on April 2, 2006. Primary residence shall be with mother.
2. Relocation
Before addressing the question of access and visitation in this case, the court must first address the plaintiff's request to relocate to Fabius, NY over the defendant's objection. 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.
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. Based upon the defendant's limited time off, and therefore limited ability to travel to upstate New York regularly, and further based upon the plaintiff's pattern of unilateral decisions, the court denies her request for relocation to Fabius, NY. Until such time as the plaintiff is able to demonstrate greater cooperation in providing the defendant with access to their minor children, the court has determined it is not in the best interest of the children to relocate to Fabius at this time. Although Fabius appears to be an ideal community to raise these children in the company of their mother and maternal grandparents, the court finds that the paternal relationship with the defendant would be further and more seriously diminished and harmed by the relocation, absent a change in circumstances.
The court further orders that the plaintiff shall not move the children's residence more than 20 miles from her present address and that they shall not be permanently removed from the State of Connecticut without further order of the court.
3. Access and Visitation
The plaintiff shall have physical custody of the minor children, except that the defendant shall have reasonable rights of visitation, including but not limited to the following:
a. Alternate weekends from Friday at 6 p.m. until Sunday at 7 p.m.
b. Monday holidays shall extend defendant's weekend with a return time of 7p.m.
c. If defendant's work schedule precludes weekend or extended weekend time, he shall notify the plaintiff at least 72 hours in advance.
d. The parties shall keep each other informed at all times of school and medical issues.
e. The parties shall at all times keep the other informed of their residential address, a current working phone number and their e-mail address.
f. The parties shall at all times keep the other informed of the whereabouts of the minor children if the children are in the care of someone else for more than 24 hours.
g. Each party shall be entitled to access to the children's school and medical records.
h. Each party shall be entitled to attend all school, extracurricular and religious events in which the children are involved.
i. Neither party shall schedule activities for the children on the other parent's access time.
j. Holidays and vacations shall take precedent over regular parenting access.
4. Holidays
a. The parties shall alternate Thanksgiving from Wednesday at 6 p.m. until the day after Thanksgiving at 9 a.m., beginning with the defendant in odd years. The other party shall have the day after Thanksgiving until Sunday at 7 p.m.
b. The parties shall alternate Christmas Eve from 5 p.m. until noon on Christmas Day, beginning with the plaintiff in odd years. The other party shall have Christmas Day from noon until December 26th at 9 a.m.
c. The parties shall alternate New Year's Eve from 6 p.m. to 9 a.m., beginning with the defendant in odd years (Example 12/31/11 to 1/1/11). The other party shall New Year's Day from 9 a.m. to 7 p.m. (Example 1/1/12).
d. The parties shall alternate Easter Sunday, beginning with the plaintiff in even years.
e. The parties shall alternate 4th of July, beginning with the defendant in even years.
f. The parties shall alternate the children's birthdays from 9 a.m. to 3 p.m. if the day is on a weekend, or from 5 p.m. to 8 p.m. if it is on a weekday, beginning with the plaintiff in even years.
g. The plaintiff shall have Mother's Day from 10 a.m. to 7 p.m. every year. The defendant shall have Father's Day from 10 a.m. to 7 p.m. every year.
5. Vacations CT Page 17836
Each parent shall be entitled to up to 2 weeks of exclusive vacation in the months of June or July or August. The defendant shall have first choice in even years and shall advise mother of the dates on or before April 1st. The plaintiff shall notify father of her dates within 2 weeks. The plaintiff shall have first choice in odd years and shall advise father of the dates on or before April 1st. The defendant shall notify mother of his dates within 2 weeks. The notice by both shall be in writing.
Unless it would otherwise interfere with this access schedule, the plaintiff shall be entitled to vacation with the children in Fabius, NY. The plaintiff must be with the children on their visits to Fabius, unless otherwise agreed to by the defendant, which agreement shall not be unreasonably withheld. The parties may arrange whatever other parenting time that they mutually agree upon.
In the event the plaintiff wishes to travel internationally with the children, she must consult with the defendant and obtain his consent in writing, which consent shall not be unreasonably withheld. Notice shall be provided at least three months in advance of any anticipated departure. If the defendant consents, the plaintiff shall keep him informed of all the travel plans and provide him with an itinerary while the children are in any foreign country, including addresses, phone numbers and e-mail addresses, if available. The plaintiff shall not permit the children to travel internationally with anyone but herself. The court finds that the United States is the children's habitual residence for purposes of the Hague Convention on the Civil Aspects of International Child Abduction. Should the plaintiff fail to return the children from any foreign country in accordance with the agreement she has made with the defendant, the Court may grant the defendant sole custody of the minor children and the plaintiff shall be liable for the reasonable cost incurred in returning the children to Connecticut. The parties shall cooperate with any application made for a passport for the minor children.
6. Medical Information
The parties shall advise each other of any medical conditions or appointments within 24 hours of a condition having developed or within 24 hours of a medical appointment being made. Medical shall mean medical, dental, prescriptive, optical, orthodontic and counseling.
C. 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 defendant shall pay to the plaintiff alimony in the amount $1 per year for a period of twelve (12) years from the date of the dissolution. 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.
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."
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 regarding liability for their business and for taxes.
D. Child Support
The parties have agreed to continue the existing child support paid by the defendant to the plaintiff, in the amount of $150 per week for a period of one year. This is somewhat higher than the current presumptive support amount of $127 per week, calculated in accordance with the Child Support Guidelines. This is in consideration of the plaintiff's payment of approximately $700 in joint business debt; namely, a $350 credit card debt and a $345.15 debt owed to Kristin Ingram, both on behalf of J P Trucking, LLC. Beginning on August 8, 2012 and thereafter, absent a substantial change in circumstances, the presumptive support amount shall be $127 per week in accordance with the Child Support Guidelines. The division of work-related day care and unreimbursed medical expenses for the minor children shall be equally divided.
E. Other Liabilities
The escrow funds in the amount of $3,354.76 currently held by Attorney Virginia Street shall be used to pay taxes and business related debts, as agreed to by the parties on the record at the conclusion of the trial. The debts included in this agreement are a Department of Revenue Services liability in the amount of $2,244.18, a Sprint bill in the amount of $500 and two liabilities involving Citizen's Bank in the amounts of $276.56 and $385.03. After the escrow is used to pay these bills, the defendant shall pay the remaining amount owed on these debts. All other business debts and marital tax liability, other than those accounted for in subsection D, above, shall be equally divided by the parties, including the debt owed to the Internal Revenue Service. The parties shall indemnify and hold each other harmless from these debts. The hold harmless shall be in the nature of support and alimony.
F. Tax Exemptions
The plaintiff shall be entitled to any exemptions and tax credits for the two minor children.
G. 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."
H. Personal Property
The personal property has been divided to the satisfaction of the parties.
SO ORDERED.