Opinion
No. FA 04007223
August 1, 2006
MEMORANDUM OF DECISION
This is an action to dissolve a 21-year marriage. The parties have four children. Both parties have appeared by counsel. The trial was commenced in November of 2005 to enter as orders regarding the agreement that the parties reached regarding custody of their children after a pretrial at the Middletown Regional Family Trial Court. The trial was suspended thereafter in the hope that the parties would be able to address the financial issues raised by the breakdown of their marriage. Unfortunately no further agreements were reached. Trial was resumed on various dates in February, March and April of 2006. The guardian ad litem for the minor children was excused from attending the remaining portion of the trial as the custodial issues had been resolved. Briefs were filed in the second week of June. After the close of evidence the Defendant filed a motion to modify child support pendente lite on June 28, 2006 and the Plaintiff, on June 29, 2006 filed a motion to reopen the trial to offer additional evidence that had developed subsequent to the closing of evidence in April. On July 5, 2006, via a three-way telephone conference with counsel for the Plaintiff, the Defendant and the court an agreement was reached that the court could take into consideration four additional facts that were stipulated to by counsel. Additional briefs were filed on July 14, 2006 and July 26, 2006.
The court, after hearing the evidence and reviewing the exhibits, makes the following. jurisdictional findings.
The Plaintiff, whose maiden name was Lynn Goodyear, and the Defendant, Robert R. Lawlor, were married on September 27, 1985 in Hartford, Connecticut.
The Plaintiff has resided continuously in Connecticut for at least one year preceding the date of the filing of the complaint for dissolution of the marriage and other relief.
There are four children issue of the marriage, namely:
Nicole Lawlor, born November 17, 1986;
Ashley Lawlor, born June 21, 1989
Courtney Lawlor, born August 8, 1991; and
Morgan Lawlor, born May 30, 1996.
The court finds that the marriage of the parties has broken down irretrievably, and there is no hope for reconciliation.
In order to resolve the disputes of the parties, the court finds the following to be the salient facts from the testimony and the exhibits introduced at trial.
Lynn Lawlor is presently 41 years old. She is a registered nurse. Throughout the duration of the marriage, she has maintained employment. She is currently employed on a full-time basis. Ms. Lawlor has several health issues for which she is currently in treatment. She was diagnosed with thyroid cancer in 1997, and she continues to be monitored for that condition. She also has been diagnosed with depression and is taking medication for that condition. These medical conditions do not prevent her continued employment.
Robert Lawlor is 42 years old. He has a GED. He has been employed by the Hartford Police Department since January of 1988. On May 7, 2005, while in the course of his employment, he was involved in a shooting that resulted in the death of an individual. The shooting at the time of trial was under a departmental investigation and a Grand Jury investigation. Although currently employed by the Hartford Police Department he is on restricted duty. Defendant's counsel has indicated to the court in a post-trial brief that the Grand Jury investigation had determined that there was sufficient evidence to warrant filing of criminal charges against the Defendant.
The decision of the Grand Jury was issued after the close of evidence. The parties subsequently stipulated to the following additional facts. 1. The one-person Grand Jury found that there was probable cause that the Defendant had acted in a criminal manner with regard to the May 2005 shooting death;
2. As a result of the Grand Jury finding, on June 22, 2006 the State's Attorney lodged criminal charges against the Defendant including Manslaughter in the first degree, reckless section, C.G.S. 53a-55(3) and Attempted Assault, First Degree, reckless section C.G.S. 53a-59(3). The Defendant was arrested on that same date.
3. On June 22, 2006, as a result of his arrest the Defendant was suspended without pay by his employer, the Hartford Police Department.
4. As a result of the Defendant's suspension without pay there has been a termination of fringe benefits such as medical insurance for the family. The Plaintiff was notified of her COBRA rights to continue coverage for the family at the monthly cost of $1,660.28.
The Defendant has been treated by mental health and medical professionals concerning his mental and emotional reaction to the shooting. He describes himself as having nightmares and disturbed sleep among other symptoms. The Defendant was further on medication to control high blood pressure. The court infers from the additional evidence that these symptoms could only be strengthened by his recent arrest on serious felony charges.
Marital history. The Plaintiff and the Defendant started dating when the Plaintiff was a junior in high school. The Defendant had always desired to become a police officer. After several jobs in the security field, he was accepted to attend the police academy. He successfully completed the academy.
Within the first year of the marriage, the Plaintiff became pregnant with their first child, Nicole. Within the first six years of the marriage, the couple would have three children. It was a very busy time. The Defendant's work schedule was demanding and variable. The Plaintiff during this period of time worked weekends when the Defendant, or the Defendant's family, was available to care for the children. The hectic pace was dictated by the size of their family, the financial demands of supporting the family, the demands of their respective careers and their hopes to maximize their financial resources.
There were significant stresses in the marriage. The Plaintiff described the Defendant as controlling and having a violent temper. Despite her working on the weekends for most of the marriage, she claimed that she performed ninety-eight percent of the child care. Although the Defendant never struck the Plaintiff, she felt threatened by him. The Defendant felt unloved in the marriage. He felt that the Plaintiff did not care whether he lived or he died. The Defendant testified that he now felt that the marriage had ended in 1995 or 1996. He made this claim despite the birth of the couple's fourth child in 1996. In 2001, in an effort to save the marriage, the parties purchased some land in Hampton and built a dream house. The Plaintiff testified that it was the Defendant's dream house and that she had only gone along with the Defendant in the hopes that the change in geography would cure their marital woes. The Plaintiff withdrew $27,000 from her 401k plan in 2001 to contribute to the cost of acquisition and furnishing of the house.
Despite the new house, the difficulties in the marriage continued. In November of 2003, the Defendant told the Plaintiff that he had been having an affair with another police officer from the Hartford Police Department, Stephanie Whitehead. The Plaintiff was devastated. She asked the Defendant to go to marital counseling with her and he agreed to do so. She also believed that he agreed to terminate the relationship with Ms. Whitehead. In December of 2003, the Plaintiff confronted Ms. Whitehead and found out that the affair was continuing. Shortly thereafter, the Defendant moved out of the house and moved in with Ms. Whitehead and her children. This dissolution action was filed in March of 2004. The marital home was sold in June of 2004. The Defendant purchased a new home in July of 2004. The Plaintiff purchased a condominium shortly thereafter.
Over the past two years, the parties have engaged in a bitter dispute over all issues, including the children. The Plaintiff is enraged and depressed over the Defendant's betrayal. She unilaterally cashed the parties' 2003 income tax refund of $5,129. She unilaterally filed her federal taxes in 2004, claiming all of the children as dependents. As a result she received a tax refund in the approximate amount of $9,000. She spent those funds without permission from the court. The Defendant is hostile and contemptuous of the Plaintiff. The guardian ad litem for the minor children described the Defendant as being extremely difficult. He would not cooperate in counseling for one of the children and threatened to sue the counselor. In the words of the guardian ad litem, the Defendant "communicated inappropriately" and on a "daily" basis. The children were very upset by the divorce of their parents and, unfortunately, became involved or were aware of the disputes between the parents.
The finances of the parties have deteriorated since their separation in December of 2003. Each of their incomes has declined precipitously, and their liabilities have increased geometrically. In 2003, the parties reported joint income of almost $180,000. Each party earned close to $90,000 during that year. The present financial affidavits disclose a combined income of approximately $123,000, with the Plaintiff earning slightly more than the Defendant. The Plaintiff explained that she changed her job and took a substantial cut in pay because she could no longer work on the weekends and take care of the children. The Defendant is no longer eligible for overtime because of his involvement in the May 7, 2005 shooting. The financial affidavits filed in June of 2004 disclosed a combined $36,000 of debt. The current financial affidavits disclose a combined $165,000 of debt (excluding mortgages). The marital home was sold in June of 2004, and the $55,000 of equity in the home has been spent and disbursed.
The financial affidavits disclose the remaining marital assets. The Plaintiff has a 401k plan which has a value of $6,000, and the Defendant has an accrued pension benefit from the Hartford Police Department that has a present value of $689,000. The pension, which the Defendant is eligible to collect in January of 2008, will pay him approximately $3,600 per month. The Plaintiff has enough earned quarters to qualify in twenty or twenty-five years for Social Security benefits. The Defendant, by virtue of his contributions to the Hartford Police Department Pension in lieu of payments into Social Security, does not have enough earned quarters to qualify for Social Security benefits at this time. The affidavits also disclose motor vehicles, disputed personal property and life insurance policies (with no cash value). There are no bank accounts of any substantial value.
Subsequent to the filing of the dissolution action, each party has acquired a new home. While the Defendant's home is solely in his name and has equity of $27,000, the Defendant claims that Ms. Whitehead borrowed money from her family to allow for the purchase of the home. The Plaintiff's home in Mansfield has approximately $10,000 of equity. Neither party sought or received court approval prior to the acquisition of their new homes.
The Plaintiff views the Defendant's conduct — his angry outbursts, his controlling conduct, his judgmentalness and ultimately his infidelity — over the years as being the cause of the breakdown of the marriage. She further believes his conduct has harmed the couple's children. Not surprisingly, the Defendant attributes most of the fault to the Plaintiff — her lack of emotional support made him feel alone and unloved in the relationship. He looked at their relationship as a financial one — "we were two small companies but together we were a good bigger company." He is fiercely passionate about his children. He feels he "has a god given right to visit his children." His passion, however, has been at times overwhelming to the children and it is exercised without sensitivity and appreciation for the reactions and needs of the children. The court finds that the defendant through his outbursts, conduct and infidelity is responsible in substantial measure for the breakdown of the marriage.
In contemplating the financial orders that it must enter, the court has a limited estate before it. The parties have pension or 401k accounts that they acquired while living together, and they each have homes that they have acquired after separating from each other. They each have substantial liabilities.
The Defendant argues, in essence that there is an additional asset in the marital estate — the Plaintiff's future entitlement to social security benefits. He argues that the Plaintiff's claim on his pension plan should be diminished because she is eligible for Social Security benefits and he is not. "Social Security benefits have been held not to constitute marital or community property, chiefly because of the Social Security Act's anti-assignment provisions." See Valuation and Distribution of Marital Property, Sec. 3.05[8], Oldfather et al, Lexis Nexis (2006). This is not to say, however, that the entitlement to social security cannot be considered by a court in fashioning orders to accomplish the equitable division of other assets of the marital estate. Recently, in the case of Purnell v. Purnell, 95 Conn.App. 677, 680 (2006) the court described the trial court's analysis of potential retirement benefits which included consideration of an entitlement to social security benefits. See also Riccuiti v. Riccuiti, 74 Conn.App. 120, 129 fn.2, 810 A.2d 818 (2002). Here, the court will consider the Plaintiff's earned social security benefits, but those benefits are not to be a substantial factor in the court's analysis of the equitable distribution of the marital estate. These benefits cannot be accessed by the Plaintiff for a substantial period of time, and further the Defendant, given his age, will have an opportunity to earn his own social security benefits or other financial assets in the future.
With regard to the issues of alimony and support, each party has significant vocational skills and has demonstrated the ability to earn a substantial income. The Plaintiff's employment prospects appear to be excellent. She is a hard and capable worker. As this lengthy divorce proceeding comes to a conclusion and the children become older she will be able to return to her pre dissolution earnings level.
The recent arrest, suspension from employment without pay and the potential of incarceration make it difficult to evaluate the Defendant's future employment prospects. Before he was arrested, the Defendant testified that he did not feel he could return to work on the street because of the trauma of the May 7, 2005 shooting. His intent was to retire upon reaching twenty years with the police department. Upon his retirement from active police duty, an individual with the Defendant's skills and experience would normally have substantial employment opportunities in the public or private sector. The criminal proceedings that are now filed, however, cast a significant cloud of uncertainty over the Defendant's future employment prospects. Even if the Defendant is acquitted on the pending charges there may be a stigma that will impact future law enforcement work.
The Plaintiff argues that the court should determine that the alimony and support orders based upon the Defendant's earning capacity rather than on his actual earnings. It is beyond cavil that a court may base its support orders on earning capacity rather than actual earnings. Courts have found that conduct such as mismanagement of business, seeking employment in a lower paying profession, addiction or alcoholism, or workplace fraud may be grounds for setting orders based on earning capacity. The Plaintiff cites the case of Grettler v. Grettler, 12 A.D.3d 602, 786 N.Y.S.2d 540 (2d Dept 2004) for the proposition that a father's hardship because of his arrest and subsequent termination of employment should not warrant a reduction of support obligations. The Grettler court upheld a lower court decision which found that Mr. Grettler had failed to demonstrate any substantial efforts to gain employment and that there were significant questions as to his credibility. While this court understands that it could find the arrest and suspension without pay to be a basis for entering financial orders based upon earning capacity rather than actual earnings it declines to do so in this case. The State's Attorney, who had access to the Grand Jury Findings and other investigative documents chose to file charges bases upon "reckless" as opposed to "intentional" conduct. The events that the Defendant encountered on the night of May 7, 2005 and the decisions that he made in a split second regarding his partner's safety are not the equivalent of the voluntary mismanagement of a business, the voluntary choice to work at a lower paying job, addiction or alcoholism, intentional work place fraud, or the arrest for intentional conduct. Obviously the Defendant will have to search diligently for work and a court in the future may find that it is appropriate to enter orders based upon earning capacity rather than actual earnings.
The Plaintiff is requesting child support of $300 per week, plus a percentage of overtime (this order is based upon the earning capacity of the Defendant), additional payments for certain dental care for the children, $250 per week in alimony for ten years, assignment of 60% of the Defendant's pension, $10,000 of the equity in the Defendant's new home, $10,000 of counsel fees and that the Defendant have the responsibility of paying the remaining balance of the guardian ad litem's fees ($7,500). The Defendant agrees to the entry of child support orders, but requests a refund of child support he claims that he has overpaid. He claims that there should be no award of alimony or attorneys fees and that the Plaintiff should receive an assignment of 25% of the Defendant's pension. He further asks for a credit relating to the distribution of the proceeds from the sale of the marital home and the 2003 tax refund.
Subsequent to the arrest of the Defendant, the plaintiff has put forward a request that the support orders be secured by the issuance of a QDRO. The court believes that the Plaintiff is overreaching. The Defendant has been consistent in the payment of his support obligations and in fact has overpaid them for a period of time. In the majority of the cases cited by the Plaintiff involved situations where the Defendant had arrearages or a history of non payment of support or alimony obligations.
The court finds that neither the Plaintiff's requested orders nor the Defendant's requested orders would not result in an equitable distribution of the marital estate. The plaintiff seeks orders that would leave the Defendant with the family debt and little else until his pension payments would begin. The Defendant's proposed orders fail to take into consideration the emotional impact of his actions on the Plaintiff and their children. The court is charged with entering orders for an equitable distribution of the marital estate. "The primary basis for an award of alimony has been not to punish a guilty spouse, but to continue the duty to support the other who, in legal contemplation, was abandoned." Tobey v. Tobey, 165 Conn. 742, 748, 345 A.2d 21 (1974). Similarly, with regard to the distribution of the assets in the marital estate, fault is but one of the statutory criteria to be considered in ordering an equitable distribution.
The court has reviewed the evidence in this case in light of all the pertinent criteria outlined in Chapter 815j of the Connecticut General Statutes. The court finds that the following orders are fair and equitable:
1. DISSOLUTION
The marriage of the parties is dissolved on the grounds of an irretrievable breakdown.
2. CUSTODY
In accordance with the agreement of the parties, the parties shall have joint custody of the three minor children and orders are entered consistent with said agreement. The agreement is appended to this decision as Court 1.
3. SUPPORT
The Defendant shall pay child support for the children, in accordance with the Child Support Guidelines in the amount of $225.00 per week. The parties shall share equally any unreimbursed medical expenses for the minor children. The Defendant shall also pay additional child support in accordance with the Child Support Guidelines in the event he works overtime (up to an additional 12 hours per week) taking into consideration overtime earned by the Plaintiff (up to an additional 12 hours per week). An accounting shall be done every six months with the parties providing each other with necessary financial information.
The Defendant shall pay 50% of work-related daycare costs required for the children.
The Defendant shall pay child support by way of immediate wage garnishment. Payments shall be made directly to the Plaintiff until the garnishment goes into effect, and further, shall be made directly to the Plaintiff for any weeks when the garnishment in the future may not be in effect.
The parties shall maintain health insurance for the benefit of the minor children as available through their employment and shall share equally in the employee contributions for the insurance premiums for the children and in the unreimbursed health expenses for the children, including orthodonture, medical, dental, optometric, counseling, psychological, psychiatric, surgical and all other health procedures. Upon receipt of documentation from the Plaintiff of the health bills for the children, the Defendant shall pay his share of the unreimbursed health costs, to the Plaintiff within two weeks of receipt.
The Plaintiff and the Defendant shall provide to each other information regarding the cost of medical or health insurances through their employment, if said insurance is available, and the scope of coverage available so that duplication of costs and coverage are minimized given the family's marginal financial circumstances.
4. PENDENTE LITE ADJUSTMENTS.
During the pendente lite period, the Defendant was under orders to contribute to payment of the unreimbursed health expenses and the parties made a partial agreement re disbursements from the proceeds from the sale of the marital home in Hampton. Further the Defendant has filed two motions to modify the pendente lite support orders. The first was filed on June 6, 2005 seeking a modification of the child support obligation when his oldest daughter graduated from high school on June 17, 2005 and the second filed on June 28, 2006 (Motion No. 160) which sought to modify his child support obligation based upon his arrest-related suspension from work.
At the time of trial, the Defendant owed the Plaintiff $1,936 for said unreimbursed health expenses. Included in this amount is a portion of the amount that the parties owe with regard to Courtney's orthodonture bill, which had a balance due, after the payment of insurance, of $3,880. The parties shall share equally in this expense and each party shall receive a credit for any payments they have made on said balance due.
With regard to the June 6, 2005 motion to modify support the Defendant claims a credit for child support that he has continued to pay since June 17, 2005 when the oldest child had reached the age of 18 and had graduated from high school. He filed a timely motion to modify the child support on June 6, 2005. The Defendant has continued to pay child support at the rate of $300 per week since that date. The child support order is modified to $225 per week retroactive to June 17, 2005. The Defendant is entitled to a credit of $75 per week. This credit ($4,103.25 as of July 5, 2006, assuming that the Defendant is current with his child support) shall first be applied to any unpaid and unreimbursed children's medical expenses and the Defendant's portion of the orthodonture bill. The balance of any credit for overpaid child support shall be applied to the Defendant's future obligations to pay for unreimbursed health expenses, including health insurance premiums of the children.
With regard to the June 28, 2006 motion to modify support (No. 160), the court notes that the motion was on the short calendar on July 10, 2006 but was not marked ready by the Defendant. The Plaintiff, during the telephonic conference on July 5, 2006 on her motion to reopen the trial to present additional evidence, raised issues regarding the service of the motion to modify. The Defendant filed the motion on a pro se basis and served the Plaintiff rather than Plaintiff's counsel. Based upon the stipulations of Counsel, it is clear to the court that the Plaintiff was aware of the Defendant's suspension without pay when she filed her motion to reopen the trial and further that she was aware that the Defendant was seeking to modify his support obligation. The court finds that the Plaintiff received actual and constructive service of the motion to modify (No. 160) as of July 5, 2006 and that any modification of support may, in the court's discretion be retroactive to that date. The court declines to act on the substantive issues raised by the motion to modify at this time as neither party has presented updated financial affidavits and calculations of child support guidelines. Further there has been no evidence as the efforts made by the Defendant to seek employment since June 22, 2006, any benefits the Defendant may be entitled to such as unemployment, and any rights to retroactive pay in the event he is acquitted of the criminal charges. The court orders that the Defendant and the Plaintiff exchange financial affidavits and offers of proof on these and any other issues either of them would raise with regard to Motion 160 on or before September 11, 2006. The parties are further ordered to meet with the Family Relations Office for Windham County to determine if they can reach an agreement with regard to Motion 160. In the event no agreement is reached then this motion shall be specially assigned to this Court for a hearing. The Court considered withholding this decision until such a hearing could be held but has decided not to do so because of the protracted nature of this case, the impact of the litigation on the children and the parties themselves and that it may take a while to clarify the Defendant's actual earnings or his earning capacity in light of his arrest.
Accounting for the Escrow and 2003 Tax Refund. The parties received the sum of $55,596.63 from the sale of the marital home. The proceeds were initially placed in escrow. On June 22, 2004 and on September 24, 2004 the parties entered partial agreements regarding distributions from the fund. The parties agreed to disbursements for some joint credit card debt, an IRS debt, for a Home Depot bill, for a distribution to the Guardian ad litem and the Defendant's attorney. After payment of these bills there was a balance of $22,805.99 which was distributed to the Plaintiff with the Defendant retaining the right to make a request a different allocation of the escrow funds at a final hearing. The Defendant has requested that he receive a credit for one-half of those funds. The court awards the Plaintiff the balance of the escrow fund, $22,805.99 and any accrued interest.
The court allows the Plaintiff to retain the entire 2003 tax refund of $5,129.
5. EDUCATIONAL SUPPORT
At the request of the parties, the court shall retain jurisdiction to enter educational support orders for the benefit of the children pursuant to Connecticut General Statute Sec. 46b-56c. With regard to college loans that the oldest child took out this past year, the parties shall share equal responsibility for the guarantee or payment of the same.
6. TAX EXEMPTIONS Commencing in the tax year 2006, the parties shall divide the tax exemptions for the children evenly. In the event that there is an odd number of children eligible to be claimed for tax exemption purposes, the Defendant shall take the greater number of exemptions in even years. The Defendant's ability to claim the children as tax exemptions is conditioned upon his being current with his child support obligations on March 31 of each year. 7. ALIMONY The court does not award alimony to either party.8. PENSION AND RETIREMENT ASSETS
The Plaintiff shall retain the IRA or 401k account on her financial affidavit free and clear of any claims of the Defendant.
The Plaintiff shall be assigned 50% of the accrued pension amount the Defendant has through the Hartford Police Department as of the date of this decision.
The Plaintiff shall prepare the required order for division of pension pay with the Defendant's cooperation to secure information and forms required to complete the assignment. The Plaintiff shall remain the beneficiary of the pension plan for all survivor benefits during the interim between the date of decree and completion of the order for division of retirement pay. The Court shall retain jurisdiction over the pension division order until it is drafted and certified in accordance with the provisions herein and the requirements of the Plan, and any drafting changes required by the Plan Administrator. The court's jurisdiction shall be reserved for any required amendments in the future in the event of any change in the underlying benefits and/or benefit providers.
The court will retain jurisdiction to enter, in its discretion, QDROs to ensure the payment of any of the obligations created by this decision, including the payment of support obligations in the event the Defendant is incarcerated.
9. PERSONAL PROPERTY
Each party shall retain the personal property in their possession except as specifically provided hereafter. Within thirty days, the Plaintiff shall turn over to the Defendant his collection of badges and police-related items.
10. BANK ACCOUNTS, DEBTS AND LIABILITIES AND AFTER ACQUIRED REAL ESTATE
Each party shall maintain the banking accounts and credit card accounts listed on their respective affidavits and shall hold the other harmless and indemnify the other on the same.
Each party shall be responsible for the liabilities listed on their financial affidavits and shall hold the other harmless and indemnify the other on the same.
Each party shall retain their interest in real estate acquired after the filing of this dissolution action free and clear from claims of the other party.
11. COUNSEL FEES AND GUARDIAN AD LITEM FEES
In light of the other orders entered herein, no counsel fees are awarded to either party.
Each party shall pay their balance due on the bills of the Guardian Ad Litem dated February 7, 2006 (the Plaintiff — $3,697.50 and the Defendant — $3,853.75). Each party shall share equally any fees charged by the Guardian Ad Litem for services after the January 9, 2006 judicial pretrial. Said fees are to be paid within sixty days.
12. LIFE INSURANCE
The Defendant shall maintain $200,000 of life insurance. He shall name the Plaintiff, as trustee for the benefit of the children pro rata, as the irrevocable beneficiary of the policy until each child reaches the age of 23 or the Defendant has satisfied his obligations with regard to education support orders or child support orders entered on behalf of the child, whichever event occurs first. When a child reaches the age of 23 and if the Defendant has completed his obligations under any educational support orders that the court may enter, then the Defendant may designate a beneficiary of his choice for that child's pro rata share of the policy.
The Plaintiff shall deliver to the Defendant the policy of insurance on his life (in the amount of $200,000 that she has been paying) and cooperate in the transfer of the policy to him. The Defendant shall provide proof on an annual basis that he has maintained the policy in full force and effect and that the designation of beneficiary is in accordance with this memorandum of decision.
FINAL CUSTODY AGREEMENT
1. The plaintiff shall have primary physical custody of the three minor children.
2. The parties shall have joint legal custody of their minor children which is defined as follows:
A. All decisions regarding the general welfare of the children including, but not limited to, religious affiliation and practice, health issues, education and activities shall be made by the plaintiff without obligation to consult with the defendant.
B. All day-to-day decisions shall be made by the plaintiff without obligation to consult with the defendant.
C. The plaintiff shall advise the defendant, via e-mail, of each child's medical doctors and/or therapists to the extent that they change or new ones are added within one week of the change or addition. She shall further advise the defendant of all non-routine medical appointments within one week of the appointment.
D. The provision of information regarding medical appointments and the names of the providers of physical or mental health care is for informational purposes and is not intended to impinge on any privilege that a child may have with a doctor or mental health professional.
E. The plaintiff shall provide the defendant, via e-mail, information regarding the commencement or enrollment, whichever first occurs and at the time of the same, of a child in an extra-curricular activity and the name of the contact person for him to obtain information regarding the activity and schedule of activity events.
F. The plaintiff's e-mails shall be informational only and the defendant shall not reply to any of them. There shall be no direct contact between the plaintiff and the defendant except in the case of an emergency regarding the children or either of them.
3. The defendant shall have parenting time with the children as follows:
A. Morgan shall visit with the defendant overnight on alternating weekends from Saturday at 10:00 am to Sunday at 5:00 pm. At this time, plaintiff works alternating weekends and it is agreed defendant's weekend access shall coincide with plaintiff's work schedule. Morgan shall also visit with the defendant one evening during the week from 4:00 p.m. to 7:00 p.m., the evening to be designated from time to time to ensure that the visit does not interfere with Morgan's activity schedule. Morgan shall have the option to opt out of visitation, as she desires. During the visits, the defendant shall take Morgan to her regularly scheduled activities, including catechism and sports activities (including games and practices), but shall otherwise have the right to exercise his discretion regarding the activities he and Morgan participate in.
B. Ashley and Courtney shall have overnight visits with the defendant on the same alternating weekends as Morgan. Ashley and Courtney shall have the option of opting out of the visitation. Ashley and Courtney shall also have one week night visit with the defendant, the night does not have to be the same for each and shall only take place after being confirmed by them with the plaintiff, plaintiff shall not unreasonably withhold agreement regarding the visit.
C. The plaintiff shall not schedule any activities that she has control over on weekends the children are to be with the defendant unless the children have discussed the issue with the defendant and he has agreed.
4. HOLIDAYS
A. Thanksgiving — Alternating from year to year with the defendant in 2005 and in his years from 10:00 a.m. to 3:00 p.m.
B. Christmas Eve — Alternating from year to year — with the defendant in 2005 and in his years from 5:00 p.m. to 11:00 p.m.
C. Christmas Day — Alternating from year to year — with the plaintiff in 2005 and when with the defendant from 10:00 a.m. to 7:00 p.m.
D. The parties shall alternate Good Friday, Easter, Memorial Day, July 4th and Labor Day from year to year.
5. The children shall be permitted to contact defendant father by telephone at any time. This shall be in lieu of defendant calling the children directly at home or on their cell phones. Defendant shall be permitted to return his children's calls, as requested by the children, on their cell phones, but shall not call the home.
6. Neither party shall disparage or allow third parties to disparage the other party in the presence of the children.
Lynn T. Lawlor, for Plaintiff.
Robert R. Lawlor, for Defendant.
Sheila E. Horvitz, Attorney for Plaintiff.
Michael A. Georgetti, Attorney for Defendant.
Tracie L. Molinaro, Guardian Ad Litem.