No. FA 00 83664S
July 29, 2003
MEMORANDUM OF DECISION
This is a motion to modify the terms of a March 21, 2001 judgment dissolving the marriage of the parties. A mediated separation agreement signed by both parties was incorporated in the judgment of the court. The parties agreed upon a shared custody plan for their two minor children which called for each party to have parenting time with the children on seven out of fourteen days. The defendant agreed to pay child support to the plaintiff in the amount of $2,000 per month. The parties also agreed that the defendant would pay for the children's schooling at the Rudolf Steiner School in Great Barrington, Massachusetts or "at another undergraduate private school as mutually agreed."
On February 7, 2003 the defendant moved to modify the shared custody plan to reflect that the parties will have joint custody of the children with the plaintiff being designated as the residential parent subject to visitation with the defendant every other weekend from Thursday after school until Sunday evening. The defendant's motion also seeks a reduction in the defendant's child support obligation. At the hearing on this motion, the defendant presented the court with proposed orders which provide that the defendant will only see the children one weekend per month plus vacations.
For about 18 months the parties followed the initial parenting plan and alternated the parenting of the children on a weekly basis. On or shortly prior to September 1, 2002 the defendant told the plaintiff that he could no longer parent the children every other week. He said that he needed to be in New York City more often during the week to audition for jobs. Therefore, he told the plaintiff that he would now see the children every other weekend and on Thursday of the off week. The plaintiff protested but did not take action to enforce the original parenting plan in court.
The defendant is a "voice over announcer" who performs in radio and television. At the time of the dissolution he had a steady job on a cable television network which, together with other jobs, resulted in net income of $5,183 per week. These jobs allowed him to work from his home in Sharon on most days. In late March 2002 he lost the cable television job which had provided him with a large portion of his income. He stayed home until about September 1, 2002 looking for new work and continuing to do his other jobs with ESPN and a Cincinnati radio station. On or about September 1, 2002 he began to spend more time in New York City in order to audition for other jobs. He continues to spend 3 to 4 days per week in New York City but continues to maintain a home in Sharon where he spends the balance of his time. His current income is variable and difficult to predict. Based upon the evidence presented, the defendant's net income is found to be $1,299 per week.
The plaintiff is a licensed massage therapist who recently began working as a coordinator at a massage school where she will be able to work about 30 hours per week. She also has several part-time jobs which require her to work on weekends. She has to employ a baby sitter to enable her to work when the children are not in school or at camp. Her total net weekly income is variable and not easily predicted. Based upon the evidence, it is found that she has net income of $521 per week.
There has been a substantial change of circumstances since the time of the dissolution. The defendant's income has decreased dramatically. He is entitled to a recalculation of his child support based upon the Child Support Guidelines. Using the figures set forth above, the defendant's child support payment should be reduced to $324 per week. The defendant will be required to pay 54% of unreimbursed medical expenses for the minor children.
The defendant's request to eliminate his obligation to pay for private school must be denied. The agreement of the parties specifically provides that the children will attend the Rudolf Steiner School or another undergraduate private school as mutually agreed. The parties are unable to agree upon a new school. The plaintiff wants the children to continue to attend the Rudolf Steiner School. The defendant wants the children to attend public school. The defendant was unable to show, based upon a preponderance of the evidence, that there has been a substantial change of circumstances which would dictate that it would be in the best interests of the children to change the schooling which the parties agreed upon. Based upon grants and scholarships which have beer offered to the children, the maximum total cost for the 2003-2004 school year will be $10,600. It is possible that the cost will be even less. Based upon the financial situations of both parties, and based upon the substantial reduction in the defendant's parenting responsibilities set forth below, the defendant is ordered to continue to provide the full cost of schooling for the children at the Rudolf Steiner School.
The defendant's request to modify the parenting plan is troubling. His proposed orders seek a reduction in his parenting time to one weekend per month. He explains his request for this extraordinary reduction from the original shared custody plan by saying that the communications between the parties has deteriorated to such an extent that the exchanges of the children for visitation are so unpleasant as to be harmful to the children. He feels that a reduction in the number of the exchanges is necessary to protect the children from the anger which flares every time the parties have any communication. Although the plaintiff admits that the communication between the parties is difficult, she feels that the children want and need to see their father more than one weekend per month and that the defendant has a duty to parent to his children which he should not be allowed to walk away from.
Although it is rare for one parent to seek a court approval to see his children less, it is credible that the defendant's need to be in New York City more often has made it impossible to have the children for seven days out of fourteen. However, he is certainly available to parent his children more often than he is requesting. Nor is it necessary to reduce his visitation to only one weekend per month in order to accomplish the legitimate goal of reducing the tensions between the parties. Having carefully weighed the evidence in light of the applicable statutory and case law, the following orders shall enter modifying the judgment of March 21, 2001 in the following respects only:
1. The parties shall have joint legal custody of the two minor children. The plaintiff shall be the primary physical custodian.
2. The defendant shall have parenting time with the minor children on three of every five weekends from Friday evening at 6:00 p.m. through Sunday evening at 8:00 p.m. The schedule shall rotate as follows: father's weekend, mother's weekend, father's weekend, father's weekend, mother's weekend, etc. This schedule shall commence with the weekend beginning on Friday August 8, 2003. Pick up and drop off shall take place at the plaintiff's home. The defendant shall park in front of the plaintiff's home and pick up and drop off the children. The plaintiff shall remain in the home.
3. The defendant shall have vacation parenting time with the children for two weeks in the summer to include the last week of June and the last week of August, and for one week during the Christmas vacation. This summer and Christmas vacation visitation shall be from Friday at 6:00 p.m. through Friday at 8:00 p.m., or until Sunday at 8:00 p.m. if it falls on the weekend of a regularly scheduled visitation.
4. The minor children shall contact their father by telephone, collect, on Monday, Wednesday, and Friday evenings between 6:30 and 7:00 p.m. The defendant shall have telephone contact with the children during school and camp hours as permitted by the school or camp. The plaintiff shall ensure that the defendant is on the approved contact list and shall attempt to foster contact between the defendant and the children. The defendant shall have email access to the children at all times. The plaintiff shall encourage the children to engage in email contact with their father.
5. The defendant shall pay child support in the amount of $324 per week. This change shall not be retroactive. The defendant shall pay 54% of the children's unreimbursed medical expenses and the plaintiff shall pay 46%.
6. The defendant shall pay the cost of four weeks of summer day camp for each child. The parties shall split the cost of work-related day care (including summer camp beyond the four weeks paid by the defendant for the minor children 46% to the plaintiff and 54% to the defendant. The plaintiff shall submit receipts for these expenses to the defendant on a monthly basis. The defendant shall reimburse the plaintiff for his share of the expenses within one month thereafter. The defendant shall be provided with the names and telephone numbers of all baby sitters. The parties shall confer and agree on all camps to be attended by the children.
7. The children shall be evaluated to determine if there is a need for them to be enrolled in counseling at the sole cost of the defendant. The defendant shall schedule and arrange for transportation to and from the evaluations and any required counseling sessions. The parties shall agree on the counselor to do the evaluation prior to any evaluation being scheduled.
By The Court,