Opinion
No. FA99-0174204S
April 30, 2002 CT Page 5058
MEMORANDUM OF DECISION
This decision dissolves the nine-year marriage of Lily and Martin Secada. The principal issues before the court are whether the plaintiff may relocate to Florida with the parties' three minor children, joint versus sole custody, and the appropriate financial orders. The Judicial District of Stamford-Norwalk referred the case to the regional family trial docket for trial of these issues, held on ten days in January and February of this year. Each party testified and offered documentary evidence at trial. In addition, the court heard testimony from the following witnesses:
• The plaintiffs sister, Lourdes Garau;
• The defendant's sister, Rose Marie Secada;
• The defendant's personal and business accountant, Edward Drotman;
• The defendant's secretary, Debbie Kovach;
• Karen Riggio, an attorney representing the defendant's business,
• The court-appointed independent family relations evaluator, Dr. Jeffrey Von Kohorn, Ph.D.; and
Section 46b-6 of the general statutes allows a trial court to order an investigation in "a pending family relations matter" of any circumstance in that matter "which may be helpful, material or relevant to a proper disposition of the case." Section 46b-3 of the general statutes permits a court to employ the services of a psychiatrist, psychologist or family counselor in carrying out such an evaluation.
• The court-appointed guardian ad litem (GAL), Dr. Susan Freedland, Ph.D.;
The defendant also introduced into evidence a transcript of the deposition of the plaintiffs mother, Adella Hernandez. In addition, both parties and the GAL submitted claims for relief or proposed orders.
I — FINDINGS OF FACT
The court has observed the demeanor of the parties and evaluated their credibility. The court has carefully considered all of the evidence, including the exhibits and the testimony presented, according to the standards required by law. The court has carefully considered the statutory criteria for dissolving a marriage and entering orders regarding custody, visitation, child support, alimony, orders of life and health insurance and payment of the children's health expenditures, and the award of counsel fees. The court has fully considered the applicable legal and factual factors for determining whether to permit a parent, at the time of a dissolution, to relocate elsewhere with children from the marriage.
After making jurisdictional findings and a brief summary as to the background and situation of each party, the court will make findings as to the key issues here. As the causes of the marital dissolution are relevant here to the financial issues, the court will address the breakdown of the marriage first. As the conduct of the parties after their separation is important to considering the relocation issue, the court will discuss that next. Analysis of the relocation and financial issues will follow.
A. Jurisdictional Findings
The court finds that it has jurisdiction over the marriage. One party has resided in Connecticut continually for more than one year prior to the bringing of this action. The parties were married in Coral Gables, Florida, on February 14, 1993. They resided together as husband and wife for approximately six and one-half years. They have three minor children who are legal issue of the marriage: Mark Secada, born June 19, 1994; Giselle (Gigi) Secada, born August 24, 1995; and Cassandra (Cassie) Secada, born March 31, 1999. No other minor children have been born to the wife since the date of the marriage. The parties have not been recipients of state assistance. The marriage between the parties has broken down irretrievably with no reasonable hope of reconciliation.
B. The parties
The plaintiff is forty years old and disclosed no health problems in her testimony at trial. A graphic designer by training and profession, she has a bachelor's degree in fine arts from the University of Miami. Before the parties moved to Connecticut in April 1993, she was earning approximately $50,000 annually as a senior art director for a Florida advertising firm. After the move, the plaintiff obtained full-time employment in New York City but soon became pregnant. Because of frequent morning sickness, particularly during the trip to Manhattan from their rental home in Greenwich, and because she did not want to spend so much time commuting once the baby was born, she found part-time freelance graphic design work in Connecticut. After the birth of their first child, she continued working part-time, earning no more than $12,000 per year. The plaintiff stopped working altogether after Gigi was born in August 1995.
The defendant is thirty-nine years old and in good health. He received a baccalaureate degree in 1984 from the University of Pennsylvania in mathematics and computer science. After college, he obtained a masters in computer science from Drexel University, and then a Masters in Business Administration from the Wharton School at the University of Pennsylvania. In the 1990s he founded his own business, Secada and Company, which provides computer and internet consulting services to businesses and corporations. Initially organized as a sole proprietorship, in 1994 he converted it to a C corporation in which he owns all the stock. The business has been very successful, as reflected by the increase in its gross receipts in recent years — from $457,299 in 1997 to $1,573,271 in 1999 and $1,500,260 in 2001. As the business became more successful, the gross income that the parties reported annually to the Internal Revenue Service (IRS) also increased — from $90,000 in 1996 to $246,344 in 1997, $218,037 in 1998, and $199,899 in 1999. In 2000, after the parties separated, Mr. Secada reported gross income to the IRS of $271,333.
C. History of the relationship and causes of the marital breakdown
Although the parties knew of each other as teenagers, and their parents still reside within blocks of each other in the Miami area, they did not begin dating until August 1992, after which a whirlwind courtship ensued. Within a week they were living together and engaged, and they were married on the following Valentine's Day, February 14, 1993. The defendant was then employed as an analyst for the Ryder Company and the defendant as a graphic artist, both earning approximately $50,000 a year. At the time of marriage neither had significant assets, and both had substantial student loan indebtedness. In April 1993 they moved to Connecticut, where the defendant had found a better paying job; and once here he also started his consulting company.
By 1996, the defendant's consulting business was becoming increasingly successful. That year he obtained a consulting job in Switzerland, and, over the plaintiffs objection, he moved there and stayed for thirteen months. The plaintiff and children visited him there twice, once for a month and another time for three months, and the defendant also returned periodically to the US to see his family. The Switzerland trip is emblematic of many aspects of the parties' relationship during this midpoint in their marriage. It shows that the defendant was primarily focused on developing his business and the plaintiff was primarily responsible for their children. It also shows that the defendant's perceptions of events do not always take into account the moods and needs of his children.
One reason the defendant wanted to go to Switzerland was to take advantage of the cultural and travel opportunities that living in Europe offers. He became very emotional at trial while recounting the traveling the family did while there together and recalling what he perceived as the good time they had in doing so. The plaintiffs very different account of their time traveling together in Europe, on the other hand, shows her greater awareness of and sensitivity to the needs and moods of their children. She too testified that they traveled a lot, but she very credibly described how difficult doing so was with two young children. The parties argued frequently about how much time the children were spending in their car seats and when they would stop so the children could eat. For example, a nightmarish trip to Lugano ended up taking three times the planned length of two to three hours; since they had only planned a day trip, they had not packed for an overnight with the children and did not have enough diapers or food for the children. By the time they had found a hotel, gotten diapers for Gigi and milk for the children, it was late in the evening. When the plaintiff asked the defendant to ask the hotel' to warm the milk, he told her their child could go to sleep without any milk. Upon his return from Europe, the parties entered counseling with Dr. Jeffrey Cohen, whom they saw for several months at the end of 1997.
The last two years of the parties' time together, from the defendant's return to the United States in summer 1997 to their separation in September 1999, were marked by repeated infidelity and deceit by the defendant, much of which he admits. In summer 1998 the parties planned to take their children to California, where the defendant had an upcoming business trip. Shortly beforehand, the defendant persuaded the plaintiff that she and the children ought instead to visit her family in Florida. The defendant then took another woman to California for a month-long extramarital affair. In September, shortly after becoming pregnant with their third child, the plaintiff found out about the affair, and told the defendant she would not countenance marital infidelity. The defendant assured her that he wanted to preserve the marriage and promised he would be faithful. They decided to enter marriage counseling again, this time with Dr. Janice Abrahms-Spring, whom they saw together from October 1998 through mid-March of 1999.
When the defendant went back to Europe on another business trip in the fall of 1998, the plaintiff, no longer trusting him, inspected his home computer, where she found subscriptions to pornographic internet sites, bookmarks for escort services, and other computer files that showed his affair that summer had not been an isolated dalliance. She found that the defendant maintained a Yahoo email account where he kept the names of women and their measurements. She learned that earlier that year he had placed an advertisement on an adult internet web site. The profile that he posted of himself there stated that "Stay at home types bore me" and that he was "looking for" "a woman for erotic chat or email or a `discreet' relationship or 1-on-1 sex." (Pl. ex. 36.) When the plaintiff confronted him with her findings and accused him of having used escort services, he admitted doing so.
The defendant continued to be unfaithful to the plaintiff. On the day that their third child was born, he abandoned his wife and newborn just after the plaintiff had undergone the hazard of a caesarean section, and forwent the precious parent-child bonding time in the recovery room for a lunch date with a woman he had met in a bar. After learning about this, because she found an email to the defendant from that woman, the plaintiff asked the defendant to leave. She agreed to continue the marriage only after he again promised to be faithful. The defendant assured her that he loved her, wanted to work on the marriage, and would not cheat on her any more. Yet on a later occasion, after the defendant had told her he had been at a meeting in New York City, she found in his pants pocket a pharmacy receipt for condoms — which obviously were not for birth control with the plaintiff since she had already had a tubal ligation — and for a meal in a Westport Restaurant at the very time he had supposedly been in New York. Finally, at the first of September 1999, the defendant told the plaintiff he had to go to Florida for a short business trip. Suspicious, the plaintiff hired a private detective to follow him. While away, the defendant called the plaintiff and told her he was headed to the Miami airport on his way home. The plaintiff told him that the detective had just telephoned her to report that the defendant was actually at a restaurant with another woman. When the defendant acknowledged that fact, the plaintiff told him that the marriage was over and not to return home.
The defendant's explanation at trial for his conduct was quite matter of fact, and showed no sense of remorse. He said he had placed the internet ad "as a lark." He admitted frequenting strip clubs because his business clients did so. He acknowledged having said, at his deposition, that when he sees a woman, he estimates their measurements and justified his doing so by saying that he "imagines that most men do so." He even admitted keeping a written record of these measurements. He denied having been unfaithful more than once, despite admitting several dates with various women and being in the Miami bar with a woman. When asked at trial to explain the one affair he did admit, he complained that after Gigi was born in 1995, "intimacy levels" with his wife had dropped.
While acknowledging his infidelity, the defendant also blames the plaintiff as equally responsible for the deterioration of their relationship. He repeatedly claimed at trial that the plaintiff had engaged in a "basic" or "fundamental" "deception" by telling him before they were married that she came from a "normal family" and that one of her brothers had died accidentally. He testified that "I was in love with an image she had portrayed to me and she was pregnant." The plaintiff, on the other hand, testified credibly at trial that she had told the plaintiff during their courtship that her brother had been murdered. She said that he had told her that two of his brothers had died, one accidentally and the other from illness, and that the shared experience of having lost siblings had given them a common bond. He also complained at trial about other deceptions, some unspecified, on her part during the marriage. Although the defendant's expressions of anger and betrayal over his claim that his wife had deceived him appeared genuine at trial, the contradictory testimony he offered about what and when she told him about her family, the vagueness of his claims about other "deceptions" on her part, and the varied times he gave for when their marriage broke down all cast doubt on his testimony. No independent evidence corroborates either party's claim on this point, and each seems equally possible and plausible. The court therefore makes no credibility or factual findings as to what the plaintiff told the defendant before the marriage or the defendant's allegation of deception on her part.
The defendant also said that the defendant had been mean and vindictive to him during their marriage. Although he claimed that she hit him on four occasions during the marriage, the court does not find his testimony on this point credible. The other examples that he cited of her alleged vindictiveness are, while plausible, petty rather than shocking.
On balance, comparing the testimony of the parties, weighing their demeanor and credibility, and evaluating all the evidence, the court finds that the defendant's infidelity and deceit — having and concealing extramarital affairs, even after promising his wife he would cease doing do and after the parties participated in individual and couples counseling to heal the rift in the marriage — are the primary cause for the dissolution of the marriage.
D. Relationship between the parties since separating
The first year after the parties separated in September 1999 was marked by significant and repeated conflict and acrimony between the parties. As of Dr. Von Kohorn's initial custody evaluation in December 2000,
[c]ommunication between the parties reflect[ed] a pattern of high intensity tension and conflict. . . . [They have] a relationship that is currently characterized by disrespect, mistrust, and high intensity conflict. There is a long history of communications reflecting hostility and significant difficulty with solving problems together.
(AMC ex. 1 at 3, 12.) Because of the intensity of this conflict and its effect on the children, Dr. Von Kohorn initially recommended that the plaintiff be allowed to move to Florida with the parties' children, for otherwise, he concluded,
it is likely that all three children would suffer from exposure to the high conflict relationship that currently exists. . . . The likelihood of continued acrimony is great as well as subsequent harm to the children.
Id. at 13.
After Dr. Von Kohorn's first evaluation, communication and cooperation between the parties about child-related issues improved considerably. Yet while the parties have cooperated better regarding their children, deep conflict has continued between them. The plaintiff repeatedly made complaints to the police last summer about the defendant, and the defendant filed a report with DCF against her. Admirably, however, the parties heeded Dr. Von Kohorn's conclusion that continued exposure to their conflict would harm their children and have managed to shield the children from their ongoing discord.
Financial matters have been the principal battleground of the parties' strife since their separation, without significant diminution. Since the parties separated, the defendant has used his control over the parties' financial resources to harass and vex the plaintiff, to make it difficult for her to meet the children's needs, and to advantage himself in the eyes of the children. During their marriage, the defendant kept exclusive control of all the parties' assets. He was the sole owner of the business (Secada and Company), all its business accounts were under his control alone, and when the parties bought a family home in Stamford in 1996, he put title to the house in his sole name. The parties had a joint bank account, but the defendant also told the plaintiff that she had unlimited use of a corporate American Express credit card for family expenses and gave her permission to use a corporate checking account. When they separated in September 1999, the plaintiff had few assets in her own name other than approximately $5,000 remaining from money she had withdrawn from the business checking account in 1998.
The defendant introduced as exhibits six cancelled checks, totaling $24,500, of withdrawals the plaintiff made from the business checking account in 1998; he testified but introduced no other evidence that she also withdrew an additional $6,000 at an unspecified time. During the course of the marriage, the plaintiff, with the defendant's knowledge and permission, regularly withdrew funds from the Secada and Company checking account and used the business's corporate credit card to pay personal, family and household expenses. There is no credible evidence that she did not use these withdrawals for reasonable personal, family or household expenses. After finding out in September 1998 that the defendant was cheating on her, and worried about her ability to support herself and the children, with all the family funds in the defendant's name, on September 12 and 15 she withdrew $10,000 from the business checking account so that she could pay for family expenses should the parties separate, and immediately afterward she told the defendant what she had done and why. Soon after that, he told her he needed the withdrawn funds for the business and she returned most of it to him; then, with his agreement, a few days later she withdrew another $9,000. of the $19,000 in withdrawals she made in September and early October of 1998, she thus had available to her approximately $10,000. When the parties did not immediately separate, she spent more than half that sum over the next year on family-related expenses, so that, when they did separate in early September 1999, only approximately $5,000 of that money was left. The court finds that any withdrawals by the plaintiff from the business checking account were made with the explicit or implicit knowledge and consent of the defendant. The court further finds that any debt or liability to the business for withdrawals that the plaintiff made from the business checking account during the marriage is a joint liability of the parties subject to assignment to either party under § 46b-81. Beede v. Beede, 186 Conn. 191, 196-97, 440 A.2d 283 (1982). In the plaintiffs claims for relief, she requested an order that defendant indemnify and hold her harmless for any debt she might owe to Secada and Company or any of its affiliates. The defendant did not claim that the court lacked authority to do so.
In mid-September 1999, without notice to the plaintiff, the defendant removed her right to use the AMEX credit card, which she learned about only after a grocery store declined to honor the card. Until the parties had separated, his secretary had come to the house monthly to pay family bills, and that stopped also. He also closed their joint checking account. From mid September until December 1999, the defendant doled out small sums of money to her. On December 20, 1999, the court ordered him to pay her $10,000 on the first of each month in unallocated child support and alimony. Over the next year he was often late in making the court-ordered payments, and by the end of 2000 was $12,000 behind. After the court reduced his pendente lite support order to $8,000 per month as of January 2001, the defendant was required to pay the home mortgage payment of $4,400 directly and the remaining $3,600 to the defendant by the first of each month. Again, he was repeatedly late and short in his payments — by the special masters mediation in Middletown in November 2001, he was more than $10,000 in arrears in payments owed to the plaintiff (including approximately $2,200 for that month).
The defendant's testimony at trial that the tardiness of his payments to the plaintiff resulted from cash flow problems is not credible, particularly considering the amounts of money he spent on activities with the children, the sums of cash he received from the business as compensation, business expenses, and loans to shareholder, and the vindictiveness he sometimes displayed toward her in financial matters. When Dr. Von Kohom asked him why he was late in his support payments, the defendant tellingly revealed the wilfulness behind his tardy payments when he explained that he could not be held in contempt unless he was more than 30 days late.
During this litigation, the defendant has spent considerable amounts of money on food, lodging, recreation and other activities with his children. He takes the children twice a month to New York City to go to the zoo, museums, Broadway shows, and restaurants. He has taken them twice to Disney World in Florida, to Miami four times, and to Philadelphia, Tampa Bay, and Coco Beach. Those expenditures were sometimes lavish — for example he spent $160 per night for several nights at the FountainBleu Hilton in Miami during a recent trip to Florida with the children — at the same time that he was making late, or short, payments to his wife. While his wife was having difficulty paying her expenses, he has thus spent considerable sums, on his weekends with the children, to offer them travel and cultural enrichment opportunities that his tardy support payments prevented his wife from providing to the children. The parties, to their credit, have kept the children uninformed of the financial issues between them; thus the children have had no reason to know or understand why their mother was not offering them the same enrichment and cultural opportunities as their father, or why she had to curtail the extracurricular activities they had once enjoyed through her. The defendant has also hired "mother's keepers" to do housecleaning, cooking, cleaning and picking up when he has the children so that he can give them his undivided attention, at the same time that his pendente lite arrearage made it impossible for the plaintiff to keep the household support she had for many years.
The evidence thus makes clear that the reason he was late in paying his court-ordered support was not cash flow. He had sufficient funds, which he preferred to spend himself rather than make timely payments to his wife.
In 2000, during which he accumulated $12,000 in arrears, the defendant's financial affidavit reported annualized salary of $192,000; he also cashed in IRA's worth $89,000 after the parties separated; and he received $60,000 in untaxed "loan to shareholder" from his business — for total pretax cash available to him of approximately $340,000. Although his internet consulting company experienced financial problems in 2001, he still received salary that year of at least $155,000.
For example, in November and December of 2001, he made his pendente lite support checks payable in the name of the plaintiffs maiden name, Lily Hernandez, despite the fact that she does not use that name, has no identification under that name, and told him that she was having difficulty cashing such checks. When asked at trial to explain writing the checks this way, he testified that "I didn't see any reason not to go there." He told Dr. Freedland that he did so because he believed the plaintiff should resume using her maiden name. The business he controls has also brought a lawsuit against the plaintiff claiming that she "converted" $31,000 from the corporate checking account without authority to do so. (Pl.'s ex. 37.)
The defendant's repeated tardiness and arrearage in making his court-ordered support payments placed great emotional and financial stress on the plaintiff. She discontinued the housekeeper services the family had used since 1995. She could afford to take the children on very few special recreational, cultural, or enrichment outings, and had to discontinue some of their extracurricular activities. She had difficulty paying bills she incurred for herself and the children. She bounced checks. She had to borrow money from her family and relatives and, in addition, incurred legal fees for prosecuting the dissolution and enforcing the court-ordered support payments.
E. The children and their relationships with the parties
The oldest child, Mark, age seven, is a serious child who gets along well with adults. Along with his sister, Gigi, he attends a Catholic parochial school in Stamford. He sometimes acts out in school, but is not a major behavior problem there. Although his grades have been A's and B's, he has had difficulty in spelling, reading, and math and is currently reading below grade level. A teacher unfortunately called him "slow" in front of his classmates, as a result of which other children now sometimes tease him. Both parents are aware of and working on his academic problems. Gigi, a first grader, receives B's and C's in school. She has shown some manual motor skill problems, but is talented, creative, and has a good singing voice. She has self-esteem and image problems, particularly about her weight and academics. She too has experienced teasing from classmates, about her weight. Both older children receive tutoring funded by Title 1 since their academic performance is below grade level. Both parents volunteer at the older children's school and attend parent-teacher conferences. The youngest child, Cassie, still stays at home during the day with her mother.
Although the plaintiff was the children's primary caretaker before the parties separated, the defendant has become actively involved in their lives since then, particularly in the last year. Since the first parenting order in this case, on December 16, 1999, he has had visitation with Mark and Gigi on alternating weekends from Friday at 5 p.m. until Sunday at 5 p.m. He also has a mid-week visitation with them before and after school on Wednesdays; initially the Wednesday visitation ended at 7:30 p.m., but in May 2000 it also became an overnight. Cassie was less than six months old when the parties separated, and the defendant's only court-ordered visitation with her was only for a few hours on alternating weekends until she was a year old; in May 2000, he started seeing her for two hours on Wednesday and Thursday afternoons, and his alternating weekend time with her increased over a period of months to every other Sunday from 9 a.m. to 5 p.m.
After Dr. Von Kohorn's first custody evaluation recommended that the plaintiff move to Florida, the defendant increased his involvement in the children's extracurricular activities. He spent a lot of his time with the children doing sports and activities with them, taking them to New York or on other trips, working with the older children on their class work, and providing them with enrichment and cultural opportunities. As a result of his increased involvement in their lives, the children's closeness to and affection for him also increased. The children enjoy and benefit from the time they spend with their father. They also enjoy spending time with their paternal cousin, three and one-half year old Dante, who lives with his mother (the defendant's sister) in New York City and spends many weekends with them.
The court heard testimony from both parents, the guardian ad litem, and the court appointed psychologist on the relationship of the parties with their three children. The mutual love and affection between each parent and all three children were obvious from the testimony of the parties, the court-appointed psychologist, and the GAL. All three children are comfortable and relaxed with and have close attachments to both parents. The oldest child, Mark, is probably the closest of the three to their father, although there is no evidence that he is any closer to his father than his mother. He gets lots of attention from Mr. Secada on school and sports activities, and his mother does numerous projects with him. The middle child, Gigi, is also very close to her father, and does many activities with him, but she wishes that he understood "girl things" better and feels that her mother understands her better. The youngest child, Cassie, although close and loving to both parents, has, because of her young age, spent less time with Mr. Secada and has a much closer bond with and connection to her mother. The children know that their mother wants to move to Florida, but both older ones have expressed their desire to remain here. They want to be able to see both parents regularly.
Despite the close ties of the children with both parents, the court finds that it is strongly in their best interest that the plaintiff serve as custodial parent. The defendant loves them, is warm and affectionate toward them, is organized, structured, and goal-oriented in his parenting style, and, as noted above, has a good relationship with them. Angry and self-absorbed, however, he has also deprived them of needed financial resources or beneficial services as part of his financial harassment of the plaintiff. He lacks insight or empathy and is not always attuned to the children's emotional needs. The plaintiff has always had a loving and affection relationship with the children and, since each was born, has fully met all of their day-to-day needs. Compared to the defendant, moreover, she is more nurturing and supportive in her parenting style, more aware of the children's emotional and psychological needs, and more responsive to their overall needs.
An example of the defendant's goal-orientation would be his response to standardized testing offered at the children's school. In the first grade Mark did not perform as well on the Iowa achievement test as the defendant had hoped he might. The defendant testified that he obtained the Iowa test results, analyzed Mark's performance and found three weakness areas: spelling recollection, grammar and reading retention. He has been working with Mark to improve his performance on those areas in the next Iowa achievement tests.
Dr. Jeffrey Cohen, who met with the Secada's in couples therapy and individually with both Mr. and Ms. Secada, described the defendant to Dr. Von Kohorn as self-absorbed, angry, and arrogant. Dr. Von Kohorn concurred. Dr. Freedland described him as "self-centered." When asked at trial to identify any deficiencies he might have as a parent, for example, his only answer was a sarcastic retort that "I can't breast feed."
A difference in their parenting styles may be seen in how they responded to Gigi's "weight problem." The defendant weighs her every time she visits to see whether she has gained weight. He compares whether Gigi gains more weight when with him or with her mother and complains that Gigi gains more weight when she is with her mother than when she is with him. He tries to ensure that she eats nutritious meals and gets lots of physical exercise when she visits with him. For this problem, then, the defendant identified what he perceived as a problem, developed a plan of specific behaviors to address it, and tried to follow that plan. His responses, dietary monitoring and exercise, can be appropriate ways to deal with a young child's weight problem; young children continue to grow, and it is common sense that they can grow into their bodies, if moderately overweight, through a proper diet and exercise. He is not as aware as the plaintiff, however, of the child's other needs, in particular her psychological and emotional needs.
The plaintiffs approach to this issue was to speak with Gigi's pediatrician, who told her this was "not a problem." She consulted twice with a nutritionist (although had to stop doing so when the defendant refused to pay for additional visits to the nutritionist). She is properly concerned that excessive focus on a weight problem for a six-year old girl could make the child self-conscious — and the guardian ad litem noted that Gigi has begun to have self-esteem issues regarding her weight. She worries that Gigi "could get a complex" if her parents talk to her too much about her weight, a concern that the GAL also agreed was appropriate. In this day when so many young females suffer from anorexia and other eating disorders, the plaintiffs concerns are entirely appropriate. The plaintiff also monitors the child's diet. Her response to this "problem" was thus equally suitable as the defendant's at dealing with its physical manifestations — the child's weight, but more nurturing and responsive to its psychological and emotional dimensions.
The evidence also showed that the defendant sublimated his concern about his daughter's weight to his financial conflict with his wife. Although he initially suggested that they consult a nutritionist, and the plaintiff did so — both of which were appropriate actions, he then refused to continue paying for such consultations. Last year the defendant also started taking the children to a child psychologist. When the plaintiff found out about the therapy through discovery, she spoke herself to the children's psychologist, who recommended increasing the number of therapy sessions and involving both parents. The defendant then discontinued taking the children to or paying for the therapy. Here also, the defendant's initial action, taking the children to a child psychologist, was appropriate, and could have been helpful in detecting possibly adverse effects on Gigi of her parents' weight concerns; but the defendant once again cut off payments for beneficial services to his children rather than join with his wife in meeting their needs.
II — THE RELOCATION ISSUE
The plaintiff seeks to relocate with her children back to the Miami area where she grew up. Her parents and siblings all live there. Her most significant job history occurred there and she has employment waiting for her there upon her return. The defendant adamantly resists her request. He has developed a close relationship with all three children and is actively involved in their life and activities. He instead seeks an order requiring the plaintiff to keep the children here. A. Applicable law
The defendant also claimed to Dr. Von Kohorn that he was "concerned . . . that relocation to Miami poses risks to the children due to Ms. Secada's family's record of criminal behavior." (AMC ex. 1 at 3.) Although the defendant has opposed the plaintiffs desire to relocate to Florida, he made no claim to this court, nor is there any evidence whatsoever, that anyone in the plaintiffs family, or to whom their children might be exposed in Florida, is in anyway unfit, inappropriate, or dangerous to the children. The defendant's conduct over the years, moreover, belies any such risk. The plaintiff, the defendant, and their children have all spent much time with her family in Florida. He has often encouraged her to take the children there, including the time of his first affair in California. Even his proposed orders suggest that she be allowed to spend summers in Florida with the children.
This difficult question, the resolution of which will so dramatically affect both parents and all three children for years to come, is not a simple one to resolve. Under the recent decision in Ford v. Ford, 68 Conn. App. 173, ___ A.2d ___ (2002), the court must, in considering relocation during a dissolution proceeding, base its decision, as with other. questions concerning custody and visitation of the minor children, on the best interest of the children involved, as required by general statutes § 46b-56 (b). In assessing their best interest, the factors set forth in Ireland v. Ireland, 246 Conn. 413, 717 A.2d 676 (1998), "may be considered as "best interest factors' and give guidance to the trial court, [but] they are not mandatory or exclusive" in relocation cases such as this arising in the initial judgment contest. Ford v. Ford, 68 Conn. at 184.
As courts have pointed out in myriad decisions on relocation and other legal questions affecting children, the term "best interest of the child" may not have scientific precision, but it "does not lack metes and bounds." State v. Anonymous, 179 Conn. 155, 165, 425 A.2d 939 (1979)."Standards of mathematical precision are neither possible nor desirable in this field; much must be left to the trial judge's experience and judgment." Id. "The best interest standard is inherently flexible and fact-specific to each child, giving the court broad discretion to consider all the different and individualized factors that might affect a specific child's welfare." In re Diane W., Superior Court for juvenile matters, child protection session at Middletown (December 21, 2002). As our Supreme Court noted in Seymour v. Seymour, 180 Conn. 705, 710, 433 A.2d 1005 (1980),
the legislature was acting wisely in leaving the delicate and difficult process of fact-finding in family matters to flexible, individualized adjudication of the particular facts of each case without the constraint of objective guidelines.
The courts have cited many factors that may affect a child's "best interest," ranging from those recited in Ireland and its antecedents to others such as the child's interest "in sustained growth, development, well-being, and in the continuity and stability of [his] environment"; Capetta v. Capetta, 196 Conn. 10, 16, 490 A.2d 996 (1985); the child's specific needs; the nature of the child's relationship with each parent; the degree of contact maintained with each parent; and the potential benefit or detriment of retaining that connection with each parent. See e.g. Seymour v. Seymour, 180 Conn. 710ff Janik v. Janik, 61 Conn. App. 175, 181, 763 A.2d 65 (2000), cert. den. 255 Conn. 940, 768 A.2d 949 (2001); Rudolewicz v. Rudolewicz, CLT No. 39, p. 664, Superior Court, judicial district of Hartford-New Britain (October 6, 1986, Arena, J.); In making its decision here, this court has considered the body of case law regarding best interest, the specific facts of this case, the testimony and credibility of the various witnesses here, and the court's assessment and evaluation of the best interest of the three specific children affected here.
B. Discussion
The court has also fully considered the reports and testimony of Dr. Jeffrey Von Kohorn, the clinical psychologist appointed by the court with agreement of the parties to perform a custody evaluation, and the testimony of Dr. Susan Freedland, a clinical psychologist appointed as guardian ad litem by the court with agreement of the parties. Both Von Kohorn and Freedland recommended that the court disapprove the plaintiffs request to relocate as not in the children's best interest, and testified about the various factors each considered in reaching their opinions. While a court may take into consideration the opinion of a family relations counselor, Yontef v. Yontef, 185 Conn. 275, 281, 440 A.2d 899 (1981), in which capacity Dr. Von Kohorn here functioned, and that of the guardian ad litem, Janik v. Janik, 61 Conn. App. 181, the court is not bound by the testimony of either witness as to individual best interest factors or their opinion as to the ultimate issue here, whether the plaintiffs relocation to Florida is in the best interest of these children.
In Ford, for example, the Appellate Court expressly upheld the trial court's decision rejecting the recommendation against relocation by the guardian ad litem and court-appointed psychologist. "[A] trial court is not bound to accept the expert opinion of a family relations officer. . . . [A] trial court is free to rely on whatever parts of an expert's opinion the court finds probative and helpful." Ford v. Ford, supra, 68 Conn. App. 190, citing Yontef v. Yontef, supra, 185 Conn. 281. "It is in the sole province of the trier of fact to evaluate expert testimony, to assess its credibility, and to assign it a proper weight." State v. Jarzbek, 204 Conn. 683, 706, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061 (1988). "It is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert testimony . . . The trier may accept or reject, in whole or in part' the testimony of an expert." (Citation omitted.) Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195, 737 A.2d 993, cert. denied, 251 Conn. 929, 742 A.2d 364 (1999). Keans v. Bocciarelli, 35 Conn. App. 239, 241-42, 645 A.2d 1029, cert. denied, 231 Conn. 934, 650 A.2d 172 (1994). "In weighing the testimony of an expert, the trier of fact may accept part of the testimony of an expert without being bound by all of the opinion of the expert." Johnson v. Healy, 183 Conn. 514, 517, 440 A.2d 765 (1981), quoting United Aircraft Corporation v. International Assn. of Machinists, 169 Conn. 473, 490, 363 A.2d 1068 (1975), cert. denied, 425 U.S. 973 (1976).
Both the court-appointed psychologist and GAL grounded their opinions as to the children's best interest on the assumption that the plaintiff, whom both recommended as the residential parent, would be financially secure and stable living in Connecticut. The court finds that assumption ill-founded, for a variety of reasons described in more detail below. Instead, the court finds that relocation to Florida is reasonable and necessary in order for the plaintiff to become financially secure and able to meet the needs of her children. First, many factors impair the plaintiffs ability to support herself while living in Connecticut. Her professional portfolio, which consisted of selected representative works, was destroyed by hurricane and flood damage several years ago and cannot be replicated; without it, she has no evidence or product to show her skill to potential employers. Without portfolio, and never having professionally demonstrated here the full range or extent of her artistic skill, she would have great difficulty finding suitable employment in this area. In Florida, on the other hand, the plaintiff spent the most significant years of her professional career. She is well-regarded professionally there, where she has several pending job offers. Her bilingual abilities enhance her job prospects there much more so than here. She will be able to meet the financial needs of herself and her children there, even if the plaintiff is late or short in his court-ordered alimony or support payments.
Dr. Von Kohorn admitted that he gave little consideration to the economic impact on the plaintiff and children of where they would live. Although both parents reported to him their contradictory versions as to their financial circumstances in the years since they separated, Dr. Von Kohorn did not feel qualified to determine which one was telling the truth and came to no conclusions about the accuracy of their varying reports about the plaintiffs economic circumstances. Dr. Von Kohorn did not, therefore consider significant evidence relevant to the children's best interest. Dr. Freedland concluded that, if the plaintiff were not able to feel financially secure, and correspondingly emotionally secure about her financial circumstances, while remaining here, then it would not be in the children's best interest to stay in Connecticut. As a result, although the court finds credible much of their testimony as to underlying factors, the court accords their ultimate opinions little weight.
The two primary job markets for the plaintiff to work here in graphic arts would be in Connecticut or the New York City metropolitan area. Since moving here eight years ago, she has worked little, and not at all for several years. The work she did here was mostly freelance and part-time. Because of the type of jobs she held here, the work she produced neither provided adequate samples to restock her portfolio nor fully demonstrated the quality of work she is able to create. As she credibly explained at trial,
the level of work that I was doing [after moving from Miami] was not near at the level of the work that I was doing in Miami [because] . . . as a freelancer you just get the scraps; whatever is due out fast or whatever little flyer they need done fast . . . nothing to the extent of what I had in my portfolios — full campaigns and things that I could really show the breadth of what I can produce.
[Test. 2/8/2002.] Moreover, due to her limited job history here, she does not have the local contacts or connections who would be aware of the range of her abilities and could help facilitate her reentry into the job market here. Although the guardian ad litem testified that she believed the plaintiff could find employment here and had several specific employment possibilities for the plaintiff, the court found this testimony to be too vague and unspecified to be credible.
Moreover, her child care responsibilities, including a small child still at home, the stress she experienced because of the defendant's irregular pendente lite financial support, and the limitations on her ability to find employment here limited her ability and justify her failure to seek work during the divorce proceeding. Were she to seek employment in this area, she would, in many ways, have to, at age forty, start her career all over again, working her way up from the bottom. The best career prospects for her here would be to seek employment in New York City; but the daily commute to Manhattan, if she were employed full-time, would keep her away from the children longer each day than would be in their present best interest. Although the court accepts the testimony of both plaintiff and defendant that the plaintiff is a skilled graphic artist, as several examples of her work introduced into evidence attest, it would nonetheless take time, an uncertain period of years, for the plaintiff to become financially self-sufficient if she continues to live in this region.
The plaintiff will thus be, if she continues to live in Connecticut, a financial vassal of the defendant for a considerable period of time. Yet the defendant's conduct during the entire course of litigation shows him to be untrustworthy and unreliable in his financial dealings with the plaintiff. The defendant was not candid in his financial disclosures to the court or plaintiff. He was repeatedly late in his pendente lite payments to her. His conduct not only prevented her from having the financial resources to offer the children the same type and number of cultural, recreational, and enrichment activities as their father did, but impaired her ability to meet their day-to-day needs. He has been vindictive toward her — cutting off her ability to provide for herself and the children early in the divorce; instituting litigation against her by his business; and making certain pendente lite payments payable to the plaintiff in her birth name, while knowing that his doing so impaired her ability to negotiate those checks. The timing of his payments shows his continuing intent to vex her — often making them within days after due, hence waiting until after the court-ordered due date with the knowledge that such a delay would cause her stress and inconvenience, yet making payments before a court hearing could be scheduled where he might be subject to judicial sanctions for contempt. The court thus finds that neither a standard alimony order of regular monthly payments nor a three-month alimony escrow as proposed by plaintiff would provide the plaintiff with sufficient financial security or economic peace of mind in the present case. Even Dr. Freedland concluded that it would not be in the children's best interest to remain in Connecticut if the plaintiff "was not feeling financially secure." Relocation is reasonable and necessary for the economic and emotional well-being of the plaintiff and her children.
For example, the defendant tried to conceal cash he received from the business. His most recent financial affidavit did not disclose all his income, such as the monthly rent of $1550 he has received from the business for use of his apartment as the office site since mid-2001. His financial affidavits submitted during 2001 did not disclose monthly car payments of approximately $850 per month that the business was making on his Lexus. His financial affidavits did not disclose $8,000 cash he received from the business as loans to shareholder in August and September 2001. He provided bank records for December 2001 in response to a Notice to Produce filed by the plaintiff that concealed $13,000 in cash he received from the business in that period. His pattern of taking cash from the business as a loan to shareholder enabled him not to report those sums to the plaintiff as income and then report on his financial affidavits the resulting debt to the business as a liability, in effect owed to himself, since he is the sole owner of the business, thereby distorting his actual financial situation.
Two examples are court proceedings this year, one on January 7 before Judge Harrigan, and another on March 6 before this court, both resulting from the plaintiff filing a motion for contempt when the defendant did not pay his monthly pendente lite support by the first of the month. In each instance, by the time of the court proceeding, the defendant had paid his obligation, but tardily. Those motions for contempt were deferred to decision by this court. Since, at the time of each court proceeding, the defendant was in compliance with the court's orders, no contempt may be found, and the court denies the two motions.
This case differs substantially from relocation cases in which a custodial parent seeks to move in order to enhance an already adequate economic position because of the prospect of a better job, increased pay, etc. In the present case, because of the defendant's past conduct, the plaintiff has no reasonable expectation that she and her children can be financially and emotionally secure here. Both her actual economic well-being, and her sense of her well-being, legitimate her move to Florida, where her ability to support herself will enable her and the children to weather late or insufficient payments by the defendant.
As is evident from the court's discussion, the court finds that the plaintiffs reason for wanting to relocate to Florida, to procure employment there so that she can become financially secure, is a legitimate one, and that with her most significant job history in Florida and employment offers pending there, relocation would accomplish that purpose. The court has also found that she could not achieve this purpose without moving there. While these findings obviously mirror certain of the Ireland factors, this court has not accorded the various factors identified by the Ireland court for determining post-judgment relocation cases either exclusive or binding weight in considering the best interest of these children. Nor has the court shifted any burden of proof onto the defendant. Instead, as directed by the court in Ford v. Ford, the court's decision in this case, which involves a proposed relocation "aris[ing] at the initial judgment for the dissolution of marriage . . . [is] governed by the standard of the best interest of the child as set forth in § 46b-56."
In assessing the impact of the proposed relocation on the children's contact with the defendant, the court notes that the defendant has both the means and opportunity to maintain frequent contact with them. His business often requires him to travel. The defendant is a creative, industrious entrepreneur who, over the course of a few years, has built a successful business. While the concentration of major financial and corporate entities in this region may offer his business more lucrative client prospects here than elsewhere, his internet consulting business has had clients in California, Florida, Europe, and Latin America. Nothing about the nature of his business limits its geographical reach. Even without Florida clients, he has sufficient financial resources to go there frequently to see his children, and, as the owner and chief operating officer of his business, sufficient control over his work schedule to do so. The court's orders regarding his parenting time will thus offer him comparable access to the children after their relocation as before.
The court thus finds that Mr. Secada will have substantial control in the future over the nature and frequency of his contact with the children. "[T]he feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements"; Ireland v. Ireland, 246 Conn. 431; will be in his own hands. Relocation may reduce the frequency of Mr. Secada's midweek contact with his children. He may find it more difficult to attend school or extracurricular activities. Yet changes in the schedule of his contact with them do not necessarily translate into reduced quality or quantity of contact. He will still have an opportunity, should he desire to exercise it, to see them frequently and, in view of the court's orders regarding vacations, for substantial periods of time as well.
In evaluating the best interest of all three minor children, the court must consider many factors, not just their wishes. The court here has fully considered the stated preference of the older children not to move, but has done so in light of the remaining evidence and while applying the controlling legal standard of their best interest. They are not aware, and appropriately not, of the financial dimension to the question of their best interest. As they will live with their mother, their best interest is in many ways tied to hers. Their best interest requires that the parent with whom they live be able to provide for them financially. If their mother is unable to support the children adequately, if continuing financial shenanigans by their father continue to vex her, and if, as a result, she is emotionally and financially insecure, such a condition would inevitably affect and harm the children.
In finding that the best interest of these children is tied to the custodial parent's economic and emotional security, the court has done so on the facts of this case. The court is aware that under Ireland when a custodial parent seeks, in years after a judgment, to relocate the "new family unit" created by that judgment, a court must take into consideration "the interests of the new family unit as a whole." Ireland v. Ireland, 246 Conn. 430. Although all three children have always lived with their mother, and both the court-appointed psychologist and GAL recommend her as the primary residential parent, as she has been during the pendente lite period, there has not been a final custody judgment creating that legally-recognized new family unit. This court thus accords no special or separate weight to the interests of the new family unit being created by this decision, other than to find expressly that, on the facts of this case, the best interest of these children is tied to the economic and emotional security of the parent in whose care they will reside.
Although the older children are anxious about relocation, both have shown an ability to make friends and like to participate in school and extracurricular activities that can ease the social transition for newcomers. Although both older children have experienced some emotional trauma from their parents' separation and the ensuing conflict between the parties, will be saddened by moving away from their father, his relatives here, and their friends, and may have some initial difficulty acclimating themselves in Florida, the court finds Dr. Von Kohorn's testimony credible that the plaintiff will do a good job of helping them integrate into their new environment. The plaintiffs nurturing and supportive style will help the children through the transition. Although close to their father's relatives here, the children are also close to their extended maternal and paternal family in Florida. They have often been cared for by their maternal grandmother, on whom the plaintiff will sometimes rely for child care in Florida.
Mark has expressed fear about moving to Florida and spending time with his Spanish-speaking maternal relatives there, because he does not speak Spanish. Gigi and he have both expressed concern that they would be subjected to teasing by new classmates and acquaintances in Florida schools, much like they have been here, Mark for his academic difficulties and Gigi because of her weight.
No single factor is controlling here. The court concludes, after weighing all the evidence, and considering all the factors relevant to the children's best interest, that the best interest of these three children is to relocate with their mother to Florida, where she can gain the financial and emotional security and well-being that she needs, that they need from her, and that is not likely to be available to her, or them, here. The children's own interests in their sustained growth, development, and well-being require that their custodial parent be able to offer them a secure and stable home life, unfettered by the financial instability and concerns she would likely endure by remaining here.
III — PROPERTY AND FINANCIAL ISSUES
"There are three stages of analysis regarding the equitable distribution of each resource; first, whether the resource is property within Section 46b-81 to be equally distributed (classification); second, what is the appropriate method for determining the value of the property (valuation); and third, what is the most equitable distribution of the property between the parties." Krafick v. Krafick, 234 Conn. 783, 792-93 (1995). The court finds that the business, Secada and Company, and all items listed as assets on each party's financial affidavit are property within the meaning of § 46b-81 and hence subject to distribution by the court.
A. The business, marital home, and other marital assets
The major assets of the parties are the defendant's business and the marital home. The parties introduced no credible evidence as to the value of the business. The defendant's testimony that the business has no present value is not credible. Even if it currently has small cash reserves and owes significant debts, its most significant assets are the expertise of the defendant and the reputation and good will of his business. Though there was no evidence as to the value of these assets, it is obvious that they have some value, simply from the success of the business, the number and location of its clients, and its continuing growth until the recent recession. Yet in the months since the plaintiff filed this action, the defendant has stripped the business of most of its cash assets and significantly increased its liabilities by virtue of the loans to shareholder (the defendant) it made. Moreover, the defendant used $60,000 from his IRA after the filing of this action to make loans to the business, thereby further increasing its indebtedness to him. There is thus, in some sense, little of value that the court could award to the plaintiff from the business. Yet there is no doubt that the defendant's financial future, in view of his expertise and business acumen, is a rosy one. Since the defendant is the sole owner of the business, most of its good will and expertise reside in him personally. Should the court award the plaintiff half the business, the defendant could easily start a new business.
The sole remaining asset of significance is the marital home, valued by both parties in their financial affidavits as worth $688,000 and having equity of $388,000. Since they are competent witnesses regarding value of real property they own; Bank of Southeastern Conn. v. Nazarko Realty G., 49 Conn. App. 452, 458, 714 A.2d 722 (1998); and they dispute neither figure, the court accordingly adopts those amounts as the value of the home and their equity in it. The plaintiff will need a significant amount of the equity in the home to relocate to Florida and establish a household there. A suitable home for herself and the children in Florida will cost up to $350,000. After considering all the evidence and the statutory factors, the court awards the plaintiff title in the marital home.
When this action began, the defendant owned IRAs worth $119,000. The court order of December 16, 1999, allowed him to use $4,000 per month from the IRA toward his monthly support payment beginning in January 2000; by the time he filed his financial affidavit of June 27, 2000, all his IRA funds were depleted. Thus, up to $24,000 (four thousand dollars per month for six months of support, January through June) of the IRAs (although perhaps less, as the defendant's May 12, 2000, motion to modify alleged the IRAs had been depleted as of that date) may have been spent in accordance with the court's December 16 order; but the defendant spent the balance without further court approval.
Most of the indebtedness of both parties directly relates to expenses and liabilities of (a) the business, (b) the parties' personal, family, and living expenses, and (c) the present litigation. Since the plaintiff relocated here to bear and raise their children, the defendant has been the principal source of support for both parties, and the sole source for several years. The plaintiff has had no income of her own since the mid-1990s. Upon her relocation to Florida, however, she will be able to procure part- or full-time employment.
B. Counsel and GAL Fees
The plaintiff has requested that the defendant pay counsel fees to her of $25,000 and assume responsibility for the GAL and AMC fees. The defendant requests that each party pay its own counsel fees and that they split the fees for the GAL and AMC. Pursuant to general statutes § 46b-62, the court has authority to order payment of counsel, AMC, or GAL fees after consideration of "their respective abilities and the criteria set forth in section 46b-82." Moreover, the court must take care that its determination of this question does not substantially undermine its other financial orders.
In determining whether to award counsel fees the trial court must consider the total financial resources of the parties in light of the statutory criteria The statutory criteria are to be applied in light of the following three broad principles: First, such awards should not be made merely because the obligor has demonstrated an ability to pay. Second, where both parties are financially able to pay their own fees and expenses, they should be permitted to do so. Third where, because of other orders, the potential obligee has ample liquid funds, an allowance of counsel fees is not justified. If, on the basis of the total financial resources of the parties, the trial court concludes that denying an award of counsel fees would not undermine its purpose in making its prior financial orders, the court should allow each party to pay his or her own counsel fees.
(Citations omitted; quotations omitted.) Miller v. Miller, 16 Conn. App. 412, 418, 547 A.2d 922 (1988).
The court has reviewed the attorneys fee affidavit of service submitted by counsel for the minor child and finds that a fair and reasonable fee for the services she performed is $59,186.61. The court finds that the guardian ad litem rendered professional services worth $26,900.
Taking into consideration all the statutory factors mandated by § 46b-62, as elucidated by the Appellate Court in Miller v. Miller, the court awards no counsel fees to either party and orders them to divide equally the fees for AMC and GAL.
C. Life Insurance
The plaintiff has also requested an order that the defendant obtain a life insurance policy in the face amount of $500,000, with her as the primary beneficiary while he is under an obligation to pay support. The defendant has agreed, in his claims for relief, to provide such a policy for $250,000. There is no other evidence as to the cost of such insurance, or the insurability of the defendant. The court will thus order the amount to which the defendant has agreed.
D. Tuition
The parties have until now agreed to educate their children in Catholic parochial schools. The defendant has paid the children's school tuition during this proceeding and should continue doing so while the plaintiff and children still reside here. If the parties agree to continue educating any of the children in private or religious schools after the relocation to Florida, they shall equally split the tuition cost of such education while the children are in elementary or secondary school. See Carroll v. Carroll, 55 Conn. App. 18, 24ff, 737 A.2d 963 (1999).
IV — ORDERS
After considering all the statutory factors set forth in General Statutes § 46b-56 as to custody and visitation, § 46b-81 (c) as to equitable distribution of property, § 46b-82 as to alimony, § 46b-84 as to support of a minor child, § 46b-215a-1 et seq., Regs. Conn. State Agencies as to child support,, and § 46b-62 as to counsel fees, together with applicable case law and the evidence presented here, the court hereby enters the following orders:
1. Dissolution of Marriage
The marriage of the parties, having broken down irretrievably, is hereby dissolved.
Although the general statutes refer to the Superior Court as having authority to enter orders with respect to custody and visitation; General Statutes § 46b-56; this court joins others using different nomenclature to enter the statutorily-authorized orders. See e.g., Oborski v. Oborski (Nevue), Superior Court, judicial district of of Hartford, Docket Number FA 96-0713232 (December. 13, 2001, Dyer, J.); Schlicht v. Schlicht, Docket Number FA 00 0083687S, Superior Court, judicial district of Litchfield (November 8, 2001, Cremins, J.); Durall v. Korns, Docket Number FA 00-0725648-S, Superior Court, judicial district of Hartford at Regional Family Trial Docket (October 25, 2001, Pickard, J.); Patterson v. Stefanov, Docket Number FA 00-0724607 S, Superior Court, judicial district of Hartford (December 4, 2001, Gruendel, J.).
a. The parties shall share joint legal custody of the three minor children, who will live with their mother, subject to the right of liberal and reasonable visitation with their father.
b. The plaintiff may relocate with her children to Florida after the present school year. She may select the date for the move, but must give the defendant thirty days advance written notice of the date.
c. Until the children relocate to Florida with their mother, the defendant will have parenting responsibility for the two older children each week from immediately after school on Wednesdays through Friday at 8:00 p.m. and, on alternating weekends, until Sunday night at 6:00 p.m. The defendant shall have parenting responsibility for the youngest child on Wednesdays from when he picks up the older children until 8:00 p.m., and on the same weekends as the older children. After their relocation to Florida, he may have weekday and weekend parenting responsibility for all three children under the same schedule as for the two older children before the move, provided he provides the plaintiff seven days advance notice of his intention to spend such parenting time with the children.
d. Until the children relocate to Florida, they shall spend one uninterrupted month in the summer with their father, but this period shall not, without the plaintiffs consent, include the last seven days before the mother and children relocate to Florida.
e. During school years after their move to Florida, the children will alternate school vacations between the two parents, and the father, if not living near the children, shall be entitled to six weeks continuing parenting time with the children during the summers. He shall notify the plaintiff by April first of each year of the six-week period for his summer parenting time; if he does not do so by then, the plaintiff may then designate the period. The mother may also have two one-week periods during the summer of exclusive parenting time.
f. The parties shall share the children's birthdays. They will alternate school holidays, except that holidays occurring during a parent's exclusive summer parenting time will not be counted in the alternating of holidays. The children shall spend the birthdays and holidays in the location where they live unless occurring during parenting time designated by the father in the preceding sub-paragraph. The children shall spend mother's day with the plaintiff and, if the defendant so requests seven days in advance, father's day with the defendant from 8:00 a.m. to 8:00 p.m.
g. For the Christmas/New Year's holidays, the parties shall divide the school vacation equally and shall rotate annually which parent the children spend Christmas eve and day with.
(1) If the defendant desires and is able to spend Christmas eve and Christmas day near where the children are living, the children shall spend Christmas eve until 10:00 Christmas morning with one parent, and the rest of Christmas day with the other parent; and shall alternate time with the children on New Year's Eve and Day in the same manner.
(2) Otherwise, for the Christmas and New Year's period, if the defendant does not elect to spend Christmas eve and Day near where the children are living, then the children shall spend Christmas eve and Christmas Day with one parent and New Year's Eve and New Year's Day with the other, and they shall divide equally the remainder of that vacation.
(3) For Christmas 2002, the children shall spend Christmas eve and morning with their father, in accordance with the provisions of the above two paragraphs.
(4) Each year the defendant shall notify the plaintiff by November 1st where he will be spending the Christmas holiday period so that both parties and the children can plan their Christmas holidays. If he does not do so by that time period, then the procedures of paragraph (2) directly above shall apply.
h. The schedule for parenting time during a school or summer vacation will override other orders regarding parenting schedules (except as specified in subparagraph (d) above).
i. Both parents shall have reasonable telephone contact with the minor children when the children are with the other parent. Reasonable shall mean at least one telephone call a day.
j. Both parents shall treat each other with respect and courtesy. Neither parent shall make any derogatory remarks about the other parent in front of the children or within their hearing. Each parent shall seek to foster a close, loving, respectful, and positive relationship of their children with the other parent and with other parent's extended family.
k. Both parties shall immediately notify the other of any serious or emergency health issues involving the child when any of them are with that parent, and shall keep the other party informed of routine health matters involving the child.
l. If the defendant intends to spend his parenting time with the children in Connecticut during their summer, Christmas, and other school vacations, the parties shall
(1) cooperate in making travel arrangements for the children,
(2) seek travel arrangements that reasonably balance the amount of time spent traveling with the cost of such travel, and
(3) divide equally the reasonable expense for the children's travel.
3. Equitable distribution of property
Each party may retain, free and clear of the other, all assets listed on their respective affidavits, except as set forth below:
a. The court awards title in the marital home located at 6 Winding Brook Lane in Stamford exclusively to the plaintiff wife, free of any claim of the defendant. The defendant shall by quitclaim deed convey all of his right, title and interest in such property within thirty days of this decree. Except as further specified below in paragraph 4b, the plaintiff shall hereafter assume full responsibility for making all payments due after issuance of this decision for mortgage, taxes, or real property insurance on the property. She shall indemnify and shall hold the husband harmless on the mortgage or any obligations or expenses pertaining thereto.
b. The court awards title to the Lexus motor vehicle to the defendant and the Jeep Grand Cherokee to the plaintiff, free and clear or any claim of the other party. The defendant shall transfer title to the plaintiff for the Jeep Cherokee within thirty days of the date of this decision.
c. The evidence does not make clear if the parties have already divided all their personal property. The court retains jurisdiction over any such issues.
4. Financial responsibility for indebtedness
The defendant shall be responsible for paying all debts and liabilities located on his financial affidavit. Furthermore, he shall be responsible for paying and indemnifying and holding the defendant harmless from any of the following:
a. Federal or state tax liability or indebtedness arising during the term of this marriage, and any interest or penalties imposed thereon, and he shall indemnify and hold the defendant harmless thereon.
b. Any indebtedness or liability imposed on her as the result of litigation or claims brought against her by or on behalf of Secada and Company or vendors to or creditors of Secada and Company.
c. Any mortgage, tax, or property insurance payments owing or accrued on the marital home as of the date of this order.
d. Any liabilities relating to maintenance or upkeep of the marital home before the first pendente lite order on December 20, 1999.
The court intends its orders in this and the next section to be in the nature of maintenance and support and hence, under present law, and to the extent that this court may determine it, nondischargeable in bankruptcy.
Eleven U.S.C. § 523(a) (5) exempts from discharge, inter alia, any debt to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that . . . such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance or support. . . ."
"Thus, the only substantive inquiry required in assessing the dischargeability of the [IRS debt and the agreement to pay for the automobile insurance] is whether such [debts are] in the "nature of alimony, maintenance or support." Cook v. Bieluch (In re Bieluch), 219 B.R. 14, 20 (Bankr. D.Conn. 1998).
5. Alimony and Support
a. Basic Orders
(1) The defendant shall pay the plaintiff unallocated alimony and child support on the first day of each month for a period of six years from the date of this decision in the following amounts:
(a) The defendant shall pay the sum of $9,000 per month on or before the first day of each month until the first month after both of the following have occurred:
i) the plaintiff has relocated with the children to Florida; and
ii) the defendant has irrevocably transferred to the plaintiff full title to and all his ownership interest in the house at 6 Winding Lane.
(b) After both events listed above have occurred, such payments shall be reduced to $7,500 per month.
Because the parties' combined net weekly income exceeds $2,500, the court must determine the child support award on an individualized basis. Pursuant to § 46b-215a-2a (a) (2), the court finds that the minimum presumptive support amount is $684 per week, which corresponds to the amount prescribed under the child support guidelines for child support for three children in a family with combined net weekly income of $2,500.
(2) Such payments shall terminate upon death of either party, remarriage of the plaintiff, or her cohabitation with a male pursuant to General Statutes § 46b-86 (b), except that: after six years, or upon remarriage of the plaintiff or such cohabitation with a male, the defendant shall pay to the plaintiff such child support as may be determined by a court of competent jurisdiction until the younger child reaches the age of eighteen or has graduated from high school, whichever is later, but in no event beyond that child's nineteenth birthday. Child support shall commence as of the date that alimony terminates.
b. Health insurance for the minor children
Under General Statutes § 46b-84 (f), the court dissolving a marriage must include provisions in the support order for health insurance coverage for any minor children. The court orders the defendant to maintain health insurance coverage for the three minor children.
Section 46b-84 (f) provides, in pertinent part, as follows: "After the granting of a decree annulling or dissolving the marriage . . ., the court shall. . . shall include in each support order a provision for the health care coverage of the child which provision may include an order for either parent to name any child who is subject to the provisions of subsection (a) or (b) of this section as a beneficiary of any medical or dental insurance or benefit plan carried by such parent or available to such parent on a group basis through an employer or a union. If such insurance coverage is unavailable at reasonable cost, the provision for health care coverage may include an order for either parent to apply for and maintain coverage on behalf of the child under the HUSKY Plan, Part B."
c. Unreimbursed health-related expenses and care expenses
Health-related expenses shall include medical, dental, orthodontic, vision, hearing, psychological and other mental health expenses.
The parties shall share equally the cost the children's unreimbursed medical expenses and health-related expenses (after the first one hundred dollars a year, which will be the responsibility of the plaintiff) and of child care expenses that are reasonable and necessary for the plaintiff to maintain employment.
d. Health insurance for the plaintiff
The defendant will cooperate with the plaintiff in ensuring that she has adequate and timely information so that she may elect whether to purchase COBRA health insurance for herself after this decision.
6. Life insurance
The defendant shall obtain a life insurance policy with a face amount of $250,000, naming the plaintiff as primary beneficiary and the three minor children as secondary beneficiaries as long as he remains legally obligated to pay alimony or child support.
7. Private school tuition
If the parties agree to continue keeping any of these children in private or religious schools, the defendant shall be responsible for paying for the tuition cost of such education while they still reside in Connecticut. After their relocation to Florida, the parties shall equally split the cost of such tuition while the children are in elementary or secondary school or, for a particular child, until that child turns age 19, whichever occurs first.
8. Tax exemptions
Beginning in 2002 (and 2001 if tax returns have not already been filed by both parties), the parties shall annually divide the child tax exemptions and child tax credits, two to the defendant and one to the plaintiff, until the parties are no longer able to claim such for all three children, after which they will split such credits and exemptions until eligible to claim such for only one child, after which they will alternate the exemption and credits so long as they exist. In the first year with only one such exemption, the defendant may claim the exemption and credit.
9. Fees for attorney for the minor children and guardian ad litem
The parties shall each be responsible for half of the GAL and AMC fees, and payments made by or on behalf of any party prior to this decision shall be credited toward that party's portion of the fee. The parties shall seek to negotiate a schedule for paying such fees with the AMC and GAL; but if they cannot come to a mutually satisfactory agreement with the AMC or GAL as to the schedule for such payment, the court retains jurisdiction to order a specific payment schedule.
BY THE COURT
_____________________________ STEPHEN F. FRAZZINI JUDGE OF THE SUPERIOR COURT